DALLAS -- A Texas judge has issued a new ruling that may allow schools to continue selling bonds after Sep. 1, while the legal fight over the state's wealth-sharing school finance law continues.
But experts have different opinions on the importance of the nine-page ruling issued Friday by Travis County District Judge F. Scott McCown, which is intended to protect bondholders if a court later rules the new law -- known as Senate Bill 351 -- unconstitutional.
"We can issue school bonds, but we have to comply with the requirements of S.B. 351 until the court determines otherwise," said Ray Hutchison, bond lawyer at Hutchison, Boyle, Brooks & Fisher in Dallas.
"The effect of what he said was that if the Supreme Court determines that S.B. 351 is unconstitutional, or if he determines in a fall trial that the system is unconstitutional, then any such determination would be prospective only," Mr. Hutchison said.
Without the ruling, he said, "we would be in a never-never land."
Others believe the ruling does little.
"I think the action is next to worthless, because it's only valid if 351 is upheld," said Fredric Weber, bond counsel at Fulbright & Jaworski in Houston. "It appears to grant more comfort than it really does. I think there's a substantial risk that bonds issued now may be unenforceable."
He notes that while Mr. McCown presides over the central school finance case -- Edgewood vs. Kirby -- his rulings do not affect a half dozen other state actions and one federal challenge to the school finance law.
Property-wealthy districts are challenging an Aug. 7 ruling that the new school finance law is constitutional. Mr. McCown is scheduled to hold two separate trials this fall on other portions of the school finance law.
In fact, Mr. Weber said he believes only the Texas Supreme Court can provide broader assurances to bondholders, adding, "I'm saying, effectively, that McCown is not the final word."
Many bond lawyers, including Assistant Texas Attorney General Jim Thomassen,, say they are still studying the ruling to determine how it might affect school bond issuance.
In fact, some firms have said that without clear guidance from the court, they would stop writing opinions after Sept. 1. One such firm is McCall, Parkhurst & Horton in Dallas, the state's leading bond counsel.
Chuck Kobdish, a partner at the firm, said the judge's ruling is in line with past efforts to protect school financing from the turmoil of the seven-year-old school finance case.
"It's certainly in keeping with what he's been doing in the past," he said yesterday. "There's no reason to cut off financings for rich or poor districts, and I don't think that was the intent."
Judge McCown agreed in his ruling.
"The record before this court establishes that this uncertainty makes it impossible for school districts to operate. With such a cloud over their funding, they cannot enter into contracts or sell bonds," he wrote.
Of course, debate over the effect of the latest ruling may only be academic at this point. Texas schools have already sold $1.78 billion of debt in 1991, and most had planned bond sales by Sept. 1 because of uncertainty over their ability to issue debt after that date.
Only two small tax and revenue anticipation note sales totaling $10 million are on the calendar for the next week, but they are not likely to be affected by the latest ruling.
However, five Texas schools have scheduled bonds elections for referendum totaling $108.9 million between this week and Oct. 15. If approved, those bonds could be sold late this year as total volume is expected to hit a record $2 billion.
Mr. Thomassen, the state's bond lawyer, said that for the first time this year, his office has no school bond issues awaiting approval. He expects to decide late this week whether his office will continue to approve new issues.
In an Aug. 13 memorandum to bond counsel, he said authorization of bonds after Sept. 1 will depend on existing law at the time.
"In particular," he wrote, "school bond opinions rendered after Aug. 30 will disclose that there is litigation pending challenging the constitutionality of the school finance statutory framework, and that an adverse decision ... could possibly adversely affect the security for the bonds."
