Texas Register, Volume 46, Number 38, Pages 5983-6306, September 17, 2021 Page: 6,070
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(iv) provide a fully executed guaranty agreement
whereby the Applicant or its Affiliate assume financial responsibility
of any outstanding operating deficits, as they arise, and throughout the
entire Affordability Period; and
(v) have Tenant Selection Criteria that fully comply
with 10.802 of this title (regarding Written Policies and Procedures),
which require a process for evaluation of prospective residents against
a clear set of credit, criminal conviction, and prior eviction history
that may disqualify a potential resident. This process must also fol-
low 1.204 of this title (regarding Reasonable Accommodations).
(I) The criminal screening criteria must not allow
residents to reside in the Development who are subject to a lifetime sex
offender registration requirement; and provide at least, for:
(-a-) Temporary denial for a minimum of
seven years from the date of conviction based on criminal history
at application or recertification of any felony conviction for murder
related offense, sexual assault, kidnapping, arson, or manufacture of a
controlled substance as defined in 102 of the Controlled Substances
Act (21 U.S.C. 802); and
(-b-) Temporary denial for a minimum of
three years from the date of conviction based on criminal history at
application or recertification of any felony conviction for aggravated
assault, robbery, drug possession, or drug distribution.
(II) The criminal screening criteria must include
provisions for approving applications and recertification despite the
tenant's criminal history on the basis of mitigation evidence. Appli-
cants/tenants must be provided written notice of their ability to pro-
vide materials that support mitigation. Mitigation may be provided
during initial tenant application or upon appeal after denial. Mitigation
may include personal statements/certifications, documented drug/alco-
hol treatment, participation in case management, letters of recommen-
dation from mental health professionals, employers, case managers, or
others with personal knowledge of the tenant. In addition, the criteria
must include provision for individual review of permanent or tempo-
rary denials if the conviction is more than 7 years old, or if the ap-
plicant/resident is over 50 years of age, and the prospective resident
has no additional felony convictions in the last 7 years. The criteria
must prohibit consideration of any previously accepted criminal his-
tory or mitigation at recertification, unless new information becomes
available. Criminal screening criteria and mitigation must conform to
federal regulations and official guidance, including HUD's 2016 Guid-
ance on Application of Fair Housing Act Standards to the Use of Crim-
inal Records.
(III) Disqualifications in a property's Tenant Se-
lection Criteria cannot be a total prohibition, unless such a prohibition
is required by federal statute or regulation (i.e. the Development must
have an appeal process for other required criteria). As part of the ap-
peal process the prospective resident must be allowed to demonstrate
that information in a third party database is incorrect.
(C) Where supportive services are tailored for members
of a household with specific needs, such as:
(i) homeless or persons at-risk of homelessness;
(ii) persons with physical, intellectual, or develop-
mental disabilities;
(iii) youth aging out of foster care;
(iv) persons eligible to receive primarily non-medi-
cal home or community-based services;
(v) persons transitioning out of institutionalized
care;(vi) persons unable to secure permanent housing
elsewhere due to specific, non-medical, or other high barriers to access
and maintain housing;
(vii) Persons with Special Housing Needs including
households where one or more individuals have alcohol or drug addic-
tions, Violence Against Women Act Protections (domestic violence,
dating violence, sexual assault, and stalking), HIV/AIDS, or is a vet-
eran with a disability; or
(viii) other target populations that are served by a
federal or state housing program in need of the type and frequency of
supportive services characterized herein, as represented in the Appli-
cation and determined by the Department on a case-by-case basis.
(D) Supportive services must meet the minimum
requirements provided in clauses (i) - (iv) of this subparagraph:
(i) regularly and frequently offered to all residents,
primarily on-site;
(ii) easily accessible and offered at times that resi-
dents are able to use them;
(iii) must include readily available resident services
or service coordination that either aid in addressing debilitating condi-
tions, or assist residents in securing the skills, assets, and connections
needed for independent living; and
(iv) a resident may not be required to access sup-
portive services in order to qualify for or maintain tenancy in a rent
restricted Unit that the household otherwise qualifies for; and
(E) Supportive Housing Developments must meet the
criteria of either clause (i) or (ii) of this subparagraph:
(i) not financed, except for construction financing,
or a deferred-forgivable or deferred-payable construction-to-perma-
nent Direct Loan from the Department, with any debt containing
foreclosure provisions or debt that contains scheduled or periodic
repayment provisions. A loan from a local government or instrumen-
tality of local government is permissible if it is a deferred-forgivable
or deferred-payable construction-to-permanent loan, with no fore-
closure provisions or scheduled or periodic repayment provisions,
and a maturity date after the end of the Affordability Period. For tax
credit applications only, permanent foreclosable debt that contains
scheduled or periodic repayment provisions (including payments
subject to available cash-flow) is permissible if sourced by federal
funds and otherwise structured to meet valid debt requirements for
tax credit eligible basis considerations. In addition, permanent fore-
closable, cash-flow debt provided by an Affiliate is permissible if
originally sourced from charitable contributions or pass-through local
government funds and the foreclosure provisions are triggered only by
default on non-monetary default provisions. Developments meeting
these requirements are not subject to 11.302(i)(4) & (5) (relating to
Feasibility Conclusion). Any amendment to an Application or Under-
writing Report resulting in the addition of debt prohibited under this
definition will result in the revocation of IRS Form(s) 8609, and may
not be made for Developments that have Direct Loans after a LURA
is executed, except as a part of Work Out Development approved by
the Asset Management Division; or
(ii) financed with debt that meets feasibility require-
ments under Subchapter D of this chapter without exemptions and must
also be supported by project-based rental or project-based operating
subsidies for 25% of the Units evidenced by an executed agreement
with an unaffiliated or governmental third party able to make that com-
mitment, and meet all of the criteria in subclauses (I) - (VII) of this
clause:46 TexReg 6070 September 17, 2021 Texas Register
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Texas. Secretary of State. Texas Register, Volume 46, Number 38, Pages 5983-6306, September 17, 2021, periodical, September 17, 2021; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1385246/m1/88/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.