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A BILL TO BE ENTITLED
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AN ACT
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relating to the recovery and securitization of extraordinary costs |
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incurred by certain gas utilities; authority to issue bonds. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Chapter 1232.002, Government Code, is amended by |
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adding a new (3) to read as follows: |
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Sec. 1232.002. PURPOSE. The purpose of this chapter is to |
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provide a method of financing for: |
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(1) the acquisition or construction of buildings; |
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(2) the purchase or lease of equipment by executive or |
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judicial branch state agencies; and |
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(3) customer rate relief bonds authorized by the |
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Railroad Commission of Texas. |
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SECTION 2. Chapter 1232.06(a), Government Code is amended |
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by adding (4) to read as follows: |
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Sec. 1232.06. BOARD AUTHORITY. Sec. 1232.066. BOARD |
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AUTHORITY. (a) The board's authority under this chapter is limited |
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to the financing of: |
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(1) the acquisition or construction of a building; |
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(2) the purchase or lease of equipment; |
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(3) stranded costs of a municipal power agency; or |
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(4) customer rate relief bonds approved by the |
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railroad commission. |
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SECTION 3. Chapter 1232, Government Code is amended to add a |
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new section to read as follows: |
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Sec. 1232.1072. ISSUANCE OF OBLIGATIONS FOR CUSTOMER RATE |
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RELIEF BONDS APPROVED BY THE RAILROAD COMMISSION OF TEXAS. (a) The |
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authority may, either directly or by means of a trust or trusts |
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established by it, issue obligations or other evidences of |
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indebtedness for financing customer rate relief bonds approved by |
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the Railroad Commission of Texas pursuant to Chapter 104, Utilities |
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Code. |
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(b) At the request of the Railroad Commission of Texas, the |
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authority shall issue obligations or other evidences of |
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indebtedness in the amount of the requested customer rate relief |
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bonds, plus the issuance costs, and shall make a grant of the |
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proceeds of the obligations or evidences of indebtedness to the |
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Railroad Commission of Texas. The Railroad Commission of Texas' |
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request under this subsection must include a statement of the |
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payment terms for recovering customer rate relief costs. |
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(c) Obligations or evidences of indebtedness issued by the |
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authority under this section must be created pursuant to financing |
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orders issued by the Railroad Commission of Texas. Such financing |
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orders shall authorize the authority to create isolated bankruptcy |
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remote financing entities to hold customer rate relief property, |
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and the establishment of such financing entities is hereby |
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authorized. |
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(d) Obligations or evidences of indebtedness issued by the |
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authority under this section shall also include administrative |
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costs related to each approved customer rate relief financing, as |
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part of the financing costs of each financing. |
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(e) Obligations or evidences of indebtedness issued by the |
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authority under this section must be secured by CRR property, as |
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defined in Section 104.361 (10), Utilities Code, and non-bypassable |
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CRR charges, as defined in Section 104.361 (9), Utilities Code, |
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imposed by the authority on customers receiving natural gas |
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services provided by the requesting gas utility, which must be |
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consistent with the customer rate relief recovery terms stated in |
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the gas utility's request unless otherwise approved by the Railroad |
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Commission of Texas. Obligations or evidences of indebtedness |
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issued by the authority under this section are not a debt of this |
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state, the Railroad Commission of Texas, or any gas utility. |
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(f) The Railroad Commission of Texas shall provide |
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necessary assistance to the authority to ensure the collection and |
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enforcement of the non-bypassable charges, either directly or by |
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using the assistance and powers of the requesting gas utility as |
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servicer. |
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(1) The authority and the Railroad Commission of Texas |
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have all the powers necessary to perform the duties and |
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responsibilities described by this section. This section shall be |
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interpreted broadly in a manner consistent with the most |
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cost-effective financing of customer rate relief related costs. |
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Obligations or evidences of indebtedness issued by the authority |
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under this section may be structured so that any interest on the |
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obligations or evidences of indebtedness is excluded from gross |
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income for federal income tax purposes. Any interest on the |
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obligations or evidences of indebtedness is not subject to taxation |
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by and shall not be included as part of the measurement of a tax by |
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this state or a political subdivision of this state. |
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(2) The authority shall make periodic reports to the |
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Railroad Commission of Texas and the public regarding each |
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financing. |
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SECTION 4. Chapter 1232.018, Government Code is amended to |
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read as follows: |
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Sec. 1232.108. LEGISLATIVE AUTHORIZATION REQUIRED. Except |
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as permitted by Section 1232.109, 1232.1072, 2166.452, 1232.1072 or |
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2166.453, before the board may issue and sell bonds, the |
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legislature by the General Appropriations Act or other law must |
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have authorized: |
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(1) the specific project for which the bonds are to be |
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issued and sold; and |
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(2) the estimated cost of the project or the maximum |
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amount of bonded indebtedness that may be incurred by the issuance |
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and sale of bonds for the project. |
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SECTION 5. Chapter 104, Utilities Code, is amended by |
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adding subchapter I to read as follows: |
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SUBCHAPTER I. CUSTOMER RATE RELIEF BONDS |
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Sec. 104.360. PURPOSE. The purpose of this subchapter is to |
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reduce the cost that customers would otherwise experience due to |
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the extraordinary costs that gas utilities incurred and may incur |
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to secure gas supply and provide service during natural and |
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man-made disasters, system failures, and other catastrophic events |
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and to restore gas utility systems after such events by providing |
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securitization financing enabling gas utilities to recover these |
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costs. This financing mechanism will provide rate relief to |
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customers by extending the timeframe over which the extraordinary |
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costs are recovered from customers and support the financial |
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strength and stability of gas utility companies. The commission |
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shall determine that securitization provides tangible and |
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quantifiable benefits to customers, greater than would have been |
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achieved absent the issuance of the CRR bonds, as defined herein. |
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The commission shall determine that the structuring and pricing of |
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the CRR bonds result in CRR bond charges consistent with the terms |
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of the applicable financing order and market conditions at the time |
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of the pricing of the CRR bonds. The proceeds of the CRR bonds shall |
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be used solely for the purpose of reducing the amount of the |
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regulatory asset determined by the commission to be reasonable and |
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other purposes provided herein. |
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SECTION 6. Chapter 104, Utilities Code, is amended by |
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adding Section 104.361 to read as follows: |
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Sec. 104.361. DEFINITIONS. In this subchapter: |
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(1) "Ancillary agreement" means any bond, insurance |
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policy, letter of credit, reserve account, surety bond, interest |
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rate or currency swap arrangement, interest rate lock agreement, |
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forward payment conversion agreement, or other hedging |
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arrangement, liquidity or credit support arrangement, or other |
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financial arrangement entered into in connection with the issuance |
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or payment of CRR bonds that enhances the marketability, security, |
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or creditworthiness of CRR bonds. |
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(2) "Assignee" means any legally recognized entity to |
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which an interest in CRR property is transferred, other than as |
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security. The term includes a corporation, limited liability |
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company, public authority, trust, general partnership or limited |
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partnership, or other financing entity, including any assignee of |
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that party. |
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(3) "Authority" means the Texas Public Finance |
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Authority, as the sponsoring issuer of CRR bonds. |
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(4) "Bond administrative expenses" means expenses |
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incurred to administer CRR bonds issued under this subchapter, |
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including fees for paying agents, trustees, and attorneys, and for |
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other professional services necessary to ensure compliance with |
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applicable state or federal law. |
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(5) "Bond obligations" means the principal of a CRR |
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bond and any premium and interest on a CRR bond issued under this |
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subchapter, together with any amount owed under a related ancillary |
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agreement or credit agreement |
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(6) "Commission" means the Railroad Commission of |
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Texas. |
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(7) "Credit agreement" means a loan agreement, a |
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revolving credit agreement, an agreement establishing a line of |
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credit, or any similar financing arrangement. |
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(8) "CRR bonds" means bonds, notes, certificates, or |
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other evidences of indebtedness or ownership that are issued by an |
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assignee pursuant to an financing order, the proceeds of which are |
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used directly or indirectly to recover, finance or refinance |
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railroad commission-approved regulatory assets, including |
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extraordinary costs, and related financing costs, and that are |
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payable from and secured by CRR property and amounts on deposit in |
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the obligation trust fund to the extent provided by the applicable |
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financing order. |
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(9) "CRR charges" means the amounts authorized by the |
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commission to repay, finance, or refinance regulatory assets, |
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including extraordinary costs, financing costs, and other costs |
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authorized by the financing order and that are non-bypassable |
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charges: |
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(a) imposed on and part of customer bills of a gas |
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utility who has received a regulatory asset determination under |
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Section 104.363; |
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(b) collected by a gas utility who has received a |
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regulatory asset determination under Section 104.363, or its |
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successors or assignees, or a collection agent, as servicer, in |
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full, separate and apart from the gas utility's base rates; and |
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(c) paid by all existing or future customers |
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receiving service from a gas utility that has received a regulatory |
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asset determination under Section 104.363 or its successors or |
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assignees, even if a customer elects to purchase gas from an |
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alternative gas supplier. |
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Such charges shall continue to be paid until all CRR bonds and |
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financing costs are paid in full. CRR charges shall be designed as |
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uniform volumetric charges applicable to all existing or future |
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customers receiving service from a gas utility that has received a |
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regulatory asset determination under Section 104.363. |
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(10) "CRR property" means the property described in |
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Section 104.365. |
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(11) "Extraordinary costs" means: |
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(A) Reasonable and necessary costs placed in a |
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regulatory asset as defined in subpart (16) and approved by the |
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commission in a regulatory asset determination pursuant to section |
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104.363. Extraordinary costs eligible for inclusion in a regulatory |
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asset may include costs incurred to serve customers, including |
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capital costs and other costs expensed, charged to self-insurance |
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reserves, deferred, capitalized, or otherwise financed, that are |
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incurred by a gas utility or on behalf of the gas utility for gas |
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procurement, supply and system restoration and infrastructure, |
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operations and administration in response to any tropical storm or |
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hurricane, ice or snow storm, flood, or other weather-related |
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event, other natural or man-made disaster, system failure, or other |
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catastrophic event. |
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(B) Extraordinary costs may include natural gas |
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procurement costs above normalized market pricing, mobilization, |
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staging, construction, reconstruction, replacement, or repair of |
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system facilities. Extraordinary costs may include reasonable |
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estimates of the costs of natural gas procurement above normalized |
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market pricing and any activity or activities conducted or expected |
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to be conducted by or on behalf of the gas utility in connection |
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with the restoration of service or infrastructure associated with |
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natural gas outages, and such estimates may be subject to |
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reconciliation after the actual costs are known but before the |
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commission makes a determination as to the utility's regulatory |
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asset in accordance with Section 104.363. |
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(C) Extraordinary costs may include: |
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(i) a carrying charge interest rate at the |
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gas utility's cost of long-term debt as last approved by the |
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commission in a general rate proceeding if the final order (which |
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may be an order on rehearing) approving the cost of long-term debt |
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was filed less than three years before the application for |
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regulatory asset recovery was filed; |
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(ii) if the final order approving the gas |
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utility's cost of long-term debt is not stated in a final order |
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meeting the requirements of subsection (c)(i) or the final order |
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was filed three or more years before the application for regulatory |
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asset recovery was filed an alternative cost of long-term debt |
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shall be used that reflects the average cost of long-term debt |
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established by the commission for all gas utilities based on final |
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orders issued in the most recent three-year period preceding the |
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filing of the application for regulatory asset recovery; or |
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(iii) the carrying charge interest rate set |
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at the applicable cost of long-term debt set forth in subsection |
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(c)(i-ii) shall be applied from the date on which the extraordinary |
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costs were incurred until the date that CRR bonds are issued or |
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until extraordinary costs are otherwise recovered by the gas |
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utility pursuant to the provisions of this section. |
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Extraordinary costs include any costs of acquiring, |
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retiring, and refunding the gas utility's existing debt and equity |
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securities or credit facilities in connection with the issuance of |
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CRR bonds. |
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(12) "Financing costs" means any of the following: |
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(A) interest and acquisition, defeasance, or |
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redemption premiums that are payable on CRR bonds. |
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(B) any payment required under an ancillary |
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agreement and any amount required to fund or replenish reserve or |
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other accounts established under the terms of any indenture, |
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ancillary agreement, or other financing documents pertaining to CRR |
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bonds. |
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(C) issuance costs, and any ongoing costs related |
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to supporting, repaying, servicing, and refunding CRR bonds, |
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including but not limited to servicing fees, accounting and |
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auditing fees, trustee fees, legal fees and expenses, consulting |
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fees, administrative fees, printing fees, financial advisor fees |
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and expenses, SEC registration fees, issuer fees, placement and |
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underwriting fees, capitalized interest, overcollateralization |
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funding requirements, rating agency fees, stock exchange listing |
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and compliance fees, filing fees, and any other bond administration |
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expenses. The term includes the costs to the commission of |
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acquiring professional services for the purpose of evaluating |
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extraordinary costs under this subchapter. |
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(13) "Financing order" means an order of the |
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commission adopted under Section 104.364 approving the issuance of |
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CRR bonds and the creation of CRR property and associated CRR |
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charges for the recovery of regulatory assets, including |
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extraordinary costs, and related financing costs, and other costs |
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authorized by such financing order. |
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(14) "Financing party" means a holder of CRR bonds, |
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including trustees, collateral agents, any party under an ancillary |
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agreement and other persons acting for the benefit of the holder. |
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(15) "Gas utility" shall mean: |
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(A) An operator of natural gas distribution |
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pipelines that delivers and sells natural gas to the public and that |
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is subject to the commission's jurisdiction under Section 102.001 |
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of this title; and |
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(B) a gas utility that transmits, transports, |
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delivers, or sells natural gas or synthetic natural gas to |
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operators of natural gas distribution pipelines and whose rates for |
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such services are established by the commission in a cost of service |
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rate proceeding filed pursuant to Chapter 104 of this title. |
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(16) "Non-bypassable" shall mean a charge that may not |
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be offset by any credit. |
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(17) "Normalized market pricing" shall be determined |
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using the average monthly pricing at the Henry Hub for the three (3) |
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preceding months prior to the month during which extraordinary |
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costs were incurred, plus contractual adders to the index price, |
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and other non-indexed gas procurement costs. |
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(18) "Regulatory asset" includes the extraordinary |
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costs recorded by the gas utility in its books and records in |
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accordance with the Uniform System of Accounts Prescribed for |
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Natural Gas Companies Subject to the Provisions of the Natural Gas |
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Act (FERC USOA) and Generally Accepted Accounting Principles (GAAP) |
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or classified as a receivable or financial asset under |
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International Financial Reporting Standards (IFRS) pursuant to the |
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commission's authorization in the Notice of Authorization for |
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Regulatory Asset Accounting for Local Distribution Companies |
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Affected by the February 2021 Winter Weather Event issued on issued on |
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February 13, 2021, or any notice or order issued by the commission |
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thereafter for other similarly authorized natural or man-made |
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disasters or system failure events. |
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SECTION 7. Chapter 104, Utilities Code, is amended by |
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adding Section 104.361 to read as follows: |
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Sec. 104.361. JURISDICTION AND POWERS OF THE COMMISSION AND |
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OTHER REGULATORY AUTHORITIES. (a) The commission may authorize |
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the issuance of CRR bonds if the commission finds pursuant to |
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Section 104.363 that the proposed structuring, expected pricing, |
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and proposed financing costs of the CRR bonds are reasonably |
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expected to provide benefits to customers comparing the net present |
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value of the costs to customers resulting from the issuance of CRR |
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bonds and the costs that would result from the application of |
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conventional methods of financing or recovering gas utility |
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extraordinary costs and other costs authorized by a financing |
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order. |
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(b) The commission may assess to a gas utility costs |
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associated with administering this subchapter and such assessments |
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shall be recovered from rate-regulated customers as part of gas |
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cost. |
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(c) The commission has exclusive, original jurisdiction to |
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issue financing orders that authorize the creation of CRR property, |
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CRR charges to service CRR bonds and financing costs. CRR charges, |
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if authorized by the commission through a financing order in its |
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sole discretion, will be imposed pursuant to CRR property, and not |
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by a gas utility. |
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(d) Except as provided by (c), this subchapter does not in |
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any way limit or impair a regulatory authority's plenary |
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jurisdiction over the rates, charges and services rendered by gas |
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utilities in this state under Chapter 102 of this subtitle. |
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SECTION 8. Chapter 104, Utilities Code, is amended by |
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adding Section 104.362 to read as follows: |
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Sec. 104.362. REGULATORY ASSET DETERMINATION. (a) The |
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commission shall, upon application of a gas utility to recover a |
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regulatory asset, determine the regulatory asset amount to be |
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recovered by the gas utility. |
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(b) A gas utility desiring to participate in the CRR bond |
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process pursuant to a financing order shall file an application |
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with the commission no later than 90 days following the conclusion |
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of the event for which regulatory asset recovery is requested or no |
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later than 60 days following the effective date of this |
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subchapter's passage. The application date deadline shall be |
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determined by the commission consistent with this subpart. |
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(c) If the commission does not make a final determination |
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concerning the regulatory asset amount to be recovered by the gas |
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utility not later than 90 days of an application filed under (a), |
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the commission is considered to have approved the regulatory asset |
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amount requested by the gas utility. |
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(d) The regulatory asset determination shall not otherwise |
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be subject to reduction, impairment, or adjustment by further |
|
action of the commission, except as permitted by Section 104.368. |
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(e) The regulatory asset determination is not subject to |
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rehearing by the commission. A regulatory asset determination may |
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only be appealed to a Travis County district court by a party to the |
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proceeding filed not later than 15 days after the order is signed by |
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the commission. The judgment of the district court may be reviewed |
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only by direct appeal to the Supreme Court of Texas filed not later |
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than 15 days after entry of judgment. All appeals shall be heard |
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and determined by the district court and the Supreme Court of Texas |
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as expeditiously as possible with lawful precedence over other |
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matters. Review on appeal shall be based solely on the record |
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before the commission and briefs to the court and shall be limited |
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to whether the financing order conforms to the constitution and |
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laws of this state and the United States and is within the authority |
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of the commission under this subchapter. |
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(f) The commission shall issue an order to establish a |
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schedule, filing requirements, and procedure for determining the |
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prudence of the costs included in a gas utility's regulatory asset. |
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(g) To extent a gas utility subject to this subchapter |
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receives insurance proceeds, governmental grants, or any other |
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sources of funding that compensates or otherwise reimburses or |
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indemnifies it for extraordinary costs following the issuance of |
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CRR bonds a gas utility may record the amount in a regulatory |
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liability account and such amounts will be reviewed in a future |
|
proceeding. If any audit conducted under a valid gas purchase |
|
agreement identifies a change to the total amount of greater than 5% |
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of the gas supply costs incurred during the extraordinary event set |
|
forth in Section 104.361(10)(A) is identified, the gas utility may |
|
record the amount in a regulatory asset or regulatory liability |
|
account and such amounts will be reviewed for recovery in a future |
|
proceeding. |
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SECTION 7. Chapter 104, Utilities Code, is amended by |
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adding Section 104.363 to read as follows: |
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Sec. 104.363. FINANCING ORDERS AND ISSUANCE OF CRR BONDS BY |
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OR ON BEHALF OF THE AUTHORITY. (a) If the commission determines |
|
that CRR bond financing for extraordinary costs is the most |
|
cost-effective method of funding several regulatory asset |
|
reimbursements to be made to gas utilities, the commission may, |
|
following the final resolution of all applications filed under |
|
Section 104.363, request the authority to issue CRR bonds on its |
|
behalf. Before making a request of the authority under this |
|
section, the commission must issue a financing order that complies |
|
with the provisions of this Section 104.363. |
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(b) The financing order shall include a finding that the use |
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of the securitization financing mechanism is in the public interest |
|
and that the financing order is consistent with the standards set |
|
forth in Section 104.360. |
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(c) The financing order shall detail the total amount of the |
|
regulatory asset determinations to be included in the CRR bond |
|
issuance. |
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(d) The financing order shall authorize the recovery of any |
|
tax obligation of the gas utilities arising or resulting from its |
|
receipt of CRR bond proceeds, or from the collection or remittance |
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of CRR charges through the gas utilities' gas cost recovery |
|
mechanism or other means determined by the commission to be |
|
reasonable. |
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(e) The financing order shall authorize the authority's |
|
issuance of CRR bonds through one or more legally isolated |
|
bankruptcy remote financing entities established by the authority. |
|
(f) The financing order shall include a statement of the |
|
aggregated regulatory asset determination to be included in the |
|
principal amount of the CRR bonds, not to exceed $10 billion for any |
|
separate bond issue, and the maximum scheduled final maturity of |
|
the CRR bonds may not exceed 30 years, however the legal final |
|
maturity may be longer, based upon rating agency and market |
|
considerations. |
|
(g) The financing order shall provide for the imposition and |
|
mandatory periodic formulaic adjustment of CRR charges in |
|
accordance with Section 104.368 and the collection thereof by all |
|
gas utilities for whom a regulatory asset determination has been |
|
made pursuant to Section 104.363 to guarantee that the bonds will be |
|
paid in full. |
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(h) The financing order shall authorize the creation of CRR |
|
property in favor of the authority and the authority's transfer |
|
thereof. |
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(i) The financing order shall direct the authority to |
|
disperse the proceeds of CRR bonds to gas utilities for which a |
|
regulatory asset determination has been made under Section 104.363 |
|
and the amounts to be distributed. |
|
(j) The principal amount determined by the commission under |
|
subsection (c) may be increased to include an amount sufficient to: |
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(1) pay the financing costs for such issuance; |
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(2) reimburse the authority for any costs incurred for |
|
the issuance; |
|
(3) provide a bond reserve fund; and |
|
(4) capitalize interest for the period determined |
|
necessary by the commission. |
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(k) The authority, consistent with this subchapter and the |
|
terms of the financing order, shall issue CRR bonds on request by |
|
the commission, in accordance with the requirements of Chapter |
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1232, Government Code, as amended by this subchapter and other |
|
provisions of Title 9, Government Code, that apply to bond issuance |
|
by a state agency. |
|
(l) The authority, consistent with this subchapter and the |
|
terms of the financing order, shall determine the method of sale, |
|
type of bond, bond form, maximum interest rates, and other terms of |
|
the CRR bonds that, in the authority's judgment, best achieve the |
|
economic goals of the financing order and effect the financings at |
|
the lowest practicable cost. |
|
(m) The authority shall establish legally isolated |
|
bankruptcy remote financing entities and may enter into credit |
|
agreements or ancillary agreements in connection with the issuance |
|
of CRR bonds. |
|
(n) The financing order shall provide that CRR charges shall |
|
be collected and allocated among customers of each utility for whom |
|
a regulatory determination has been made under Section 104.363 |
|
through uniform, monthly volumetric charges to be paid by customers |
|
as a component of the gas utility's gas cost or in such other manner |
|
as determined by the commission to be reasonable. |
|
(o) The financing order shall reflect the commitment made by |
|
each gas utility receiving proceeds therefrom that such proceeds |
|
shall be in lieu of recovery of these costs through the regular |
|
rate-making process or other mechanism to the extent such costs are |
|
reimbursed to the gas utility by CRR bond financing proceeds. |
|
(p) The financing order shall become effective in |
|
accordance with its terms, and the financing order, together with |
|
the CRR property and the CRR charges authorized by the financing |
|
order, shall thereafter be irrevocable and not subject to |
|
reduction, impairment, or adjustment by further action of the |
|
commission, except as provided under subpart (r) and permitted by |
|
Section 104.368. |
|
(q) The commission shall issue a financing order under this |
|
Section not later than 90 days following the conclusion of all |
|
proceedings filed under Section 104.363. |
|
(r) A financing order is not subject to rehearing by the |
|
commission. A financing order may only be appealed to a Travis |
|
County district court by a party to the proceeding filed within 15 |
|
days after the financing order is signed by the commission. The |
|
judgment of the district court may be reviewed only by direct appeal |
|
to the Supreme Court of Texas filed within 15 days after entry of |
|
judgment. All appeals shall be heard and determined by the district |
|
court and the Supreme Court of Texas as expeditiously as possible |
|
with lawful precedence over other matters. Review on appeal shall |
|
be based solely on the record before the commission and briefs to |
|
the court and shall be limited to whether the financing order |
|
conforms to the constitution and laws of this state and the United |
|
States and is within the authority of the commission under this |
|
subchapter. |
|
(s) The authority shall issue CRR bonds within 45 days of |
|
the receipt of a financing order issued pursuant to this section. |
|
The authority shall deliver CRR bond proceeds net of upfront |
|
financing costs to each gas utility sufficient to reimburse the gas |
|
utility the regulatory asset amount determined to be reasonable |
|
under Section 104.363 within 15 days of issuance of the CRR bonds. |
|
For the weather event that took place in February 2021, the |
|
authority shall deliver CRR bond proceeds net of upfront financing |
|
costs to each gas utility no later than December 31, 2021. |
|
SECTION 8. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.364 to read as follows: |
|
Sec. 104.364. PROPERTY RIGHTS. (a) The CRR bonds will be |
|
solely the obligation of the assignee or issuing financing entity |
|
and will not be a debt of a gas utility or a debt or a pledge of the |
|
faith and credit of the state or any political or governmental unit |
|
thereof. |
|
(b) The CRR bonds shall be nonrecourse to the credit or any |
|
assets of the state and the authority. |
|
(c) The rights and interests of the authority or successor |
|
under a financing order, including the right to impose and receive |
|
CRR charges authorized in the financing order, shall be only |
|
contract rights until they are first transferred to an assignee or |
|
pledged in connection with the issuance of the CRR bonds, at which |
|
time they will become "CRR property." |
|
(d) CRR property shall constitute a present property right |
|
for purposes of contracts concerning the sale or pledge of |
|
property, even though the imposition and collection of CRR charges |
|
depends on further acts of the gas utility or others that have not |
|
yet occurred. The financing order shall remain in effect, and the |
|
CRR property shall continue to exist for the same period as the |
|
pledge of the state described in Section 104.372. |
|
(e) All revenues and collections resulting from CRR charges |
|
shall constitute proceeds only of a property right arising from the |
|
financing order. |
|
(f) An amount owed by the authority or an issuer under a |
|
credit agreement shall be payable from and secured by the CRR |
|
property, including CRR charges and amounts to the extent provided |
|
in the proceedings authorizing the credit agreement. |
|
SECTION 9. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.365 to read as follows: |
|
Sec. 104.365. NO SET-OFF. The interest of an assignee or |
|
pledgee in CRR property, including the revenues and collections |
|
arising from CRR charges are not subject to setoff, counterclaim, |
|
surcharge, or defense by the gas utility or any other person or in |
|
connection with the bankruptcy of the gas utility, the authority, |
|
or any other entity. A financing order shall remain in effect and |
|
unabated notwithstanding the bankruptcy of the gas utility, the |
|
authority or their successors, or assignees. |
|
SECTION 10. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.366 to read as follows: |
|
Sec. 104.366. NO BYPASS. A financing order shall include |
|
terms ensuring that the imposition and collection of the CRR charge |
|
authorized in the order shall be non-bypassable. |
|
SECTION 11. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.367 to read as follows: |
|
Sec. 104.367. TRUE-UP. The financing order shall include a |
|
formulaic true-up charge adjustment mechanism that requires that |
|
the CRR charges be reviewed and adjusted at least annually, at time |
|
periods and frequencies provided in the financing order, to correct |
|
any overcollections or under collections of the preceding 12 months |
|
and to ensure the expected recovery of amounts sufficient to |
|
provide for the timely payment of upcoming scheduled CRR bond |
|
payments and financing costs. Such true-up charge adjustments |
|
shall become effective within 30 days of the receipt of the true-up |
|
charge adjustment letter from the gas utility or replacement |
|
servicer to the commission that notifies the commission of the |
|
pending adjustment. Any administrative review of such charge |
|
adjustments shall be limited to notifying the servicer of |
|
mathematical or clerical errors in the calculation, and the |
|
servicer may correct its error and refile its letter, with the |
|
adjustment becoming effective as soon as possible within 30 days |
|
after the refiled letter. |
|
SECTION 12. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.368 to read as follows: |
|
Sec. 104.368. SECURITY INTERESTS; ASSIGNMENT; COMMINGLING; |
|
DEFAULT. (a) CRR property does not constitute an account or |
|
general intangible under Section 9.106, Business & Commerce Code. |
|
The creation, granting, perfection, and enforcement of liens and |
|
security interests in CRR property are governed by this section and |
|
not by the Business & Commerce Code. |
|
(b) A valid and enforceable lien and security interest in |
|
CRR property may be created only by a financing order and the |
|
execution and delivery of a security agreement with a financing |
|
party in connection with the issuance of CRR bonds. The lien and |
|
security interest shall attach automatically from the time that |
|
value is received for the CRR bonds and, on perfection through the |
|
filing of notice with the secretary of state in accordance with the |
|
rules prescribed under subsection (d), shall be a continuously |
|
perfected lien and security interest in the CRR property and all |
|
proceeds of the property, whether accrued or not, shall have |
|
priority in the order of filing and take precedence over any |
|
subsequent judicial or other lien creditor. If notice is filed |
|
within 10 days after value is received for the CRR bonds, the |
|
security interest shall be perfected retroactive to the date value |
|
was received, otherwise, the security interest shall be perfected |
|
as of the date of filing. |
|
(c) Transfer of an interest in CRR property to an assignee |
|
shall be perfected against all third parties, including subsequent |
|
judicial or other lien creditors, when the financing order becomes |
|
effective, transfer documents have been delivered to the assignee, |
|
and a notice of that transfer has been filed in accordance with the |
|
rules prescribed under subsection (d); provided, however, that if |
|
notice of the transfer has not been filed in accordance with this |
|
subsection within 10 days after the delivery of transfer |
|
documentation, the transfer of the interest is not perfected |
|
against third parties until the notice is filed. |
|
(d) The secretary of state shall implement this section by |
|
establishing and maintaining a separate system of records for the |
|
filing of notices under this section and prescribing the rules for |
|
those filings based on Chapter 9, Business & Commerce Code, adapted |
|
to this subchapter and using the terms defined in this subchapter. |
|
(e) The priority of a lien and security interest perfected |
|
under this section is not impaired by any later modification of the |
|
financing order under Section 104.368 or by the commingling of |
|
funds arising from CRR charges with other funds, and any other |
|
security interest that may apply to those funds shall be terminated |
|
when they are transferred to a segregated account for the assignee |
|
or a financing party. If CRR property has been transferred to an |
|
assignee, any proceeds of that property shall be held in trust for |
|
the assignee. |
|
(f) If a default or termination occurs under the CRR bonds, |
|
the financing parties or their representatives, a district court of |
|
Travis County, on application by or on behalf of the financing |
|
parties, shall order the sequestration and payment to them of |
|
revenues arising from the CRR charges. |
|
SECTION 13. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.369 to read as follows: |
|
Sec. 104.369. BOND PROCEEDS. (a) The proceeds of CRR bonds |
|
issued by or on behalf of the authority under this subchapter may be |
|
deposited with a trustee selected by the authority or held by the |
|
comptroller in a dedicated trust fund outside the state treasury in |
|
the custody of the comptroller. |
|
(b) Bond proceeds, including investment income, shall be |
|
held in trust for the exclusive benefit of the commission's policy |
|
of reimbursing such gas utility costs. The authority shall use the |
|
proceeds to: |
|
(1) reimburse each gas utility the regulatory asset |
|
amount determined to be reasonable for that gas utility in the |
|
financing order; |
|
(2) pay the financing costs of issuing the bonds; and |
|
(3) provide bond reserves, as applicable. |
|
(c) Any excess money remaining after the purposes for which |
|
the bonds were issued is satisfied may be used to provide credits to |
|
gas utility customers. |
|
(d) If there are no outstanding bonds or bond interest to be |
|
paid, the remaining proceeds shall be used to provide credits to gas |
|
utility customers. |
|
SECTION 13. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.370 to read as follows: |
|
Sec. 104.370. REPAYMENT OF CRR BONDS. (a) If any CRR bonds |
|
and related financing costs remain outstanding, a uniform, monthly, |
|
volumetric CRR charges shall be paid by all existing and future |
|
customers that receive service from a gas utility for whom a |
|
regulatory asset determination under Section 104.363. A gas |
|
utility and its successors, assigns and or replacements, shall |
|
continue to bill and collect, as servicer, CRR charges from the gas |
|
utility's existing and future customers until all CRR bonds and |
|
financing costs are paid in full. |
|
(b) With regard to outstanding CRR bonds issued by the |
|
authority under this subchapter, the authority shall report to the |
|
commission the amount of the bond obligations outstanding and the |
|
estimated amount of bond administrative expenses each year. |
|
(c) All revenue collected from the CRR charges shall be |
|
promptly remitted by the applicable servicers to the authority to |
|
pay bond obligations, ongoing financing costs, and bond |
|
administrative expenses to ensure timely payment of bond |
|
obligations and financing costs. |
|
(d) Revenues received from the CRR charges may be applied |
|
only as provided by this subchapter. |
|
(e) Bond obligations are payable only from sources provided |
|
for payment in this subchapter. |
|
SECTION 14. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.371 to read as follows: |
|
Sec. 104.371. PLEDGE OF STATE. (a) CRR bonds issued under |
|
this subchapter, and any related ancillary agreement, or credit |
|
agreement, are not a debt of the state or any state agency or |
|
political subdivision of the state and are not a pledge of the faith |
|
and credit of any of them. A CRR bond, ancillary agreement, or |
|
credit agreement is payable solely from CRR charges as provided by |
|
this subchapter. |
|
(b) The state, including the commission and the authority |
|
pledge, however, for the benefit and protection of the financing |
|
parties and the gas utility, that it will not take or permit any |
|
action that would impair the value of CRR property, or, except as |
|
permitted by Section 104.368, reduce, alter, or impair the CRR |
|
charges to be imposed, collected, and remitted to financing |
|
parties, until the principal, interest and premium, and contracts |
|
to be performed in connection with the related CRR bonds and |
|
financing costs have been paid and performed in full. The authority |
|
or any other entity issuing CRR bonds is authorized to include this |
|
pledge in any documentation relating to those bonds. |
|
SECTION 15. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.372 to read as follows: |
|
Sec. 104.372. TAX EXEMPTION. (a) A CRR bond issued under |
|
this subchapter, any transaction relating to CRR bonds, and profits |
|
made from the sale of CRR bonds are exempt from taxation by this |
|
state or by a municipality or other political subdivision of this |
|
state. |
|
(b) A gas utility's receipt or collection of CRR charge |
|
amounts is exempt from state and local income, sales, franchise, |
|
gross receipts, and other taxes or similar assessment. |
|
(c) Any tax obligation of the gas utility arising from its |
|
receipt of CRR bond proceeds, or from the collection or remittance |
|
of CRR charges is an expense that shall be recovered by the gas |
|
utility. |
|
SECTION 16. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.373 to read as follows: |
|
Sec. 104.373. NOT PUBLIC UTILITY. An assignee or financing |
|
party shall not be considered to be a public utility or person |
|
providing natural gas service solely by virtue of the transactions |
|
described in this subchapter. |
|
SECTION 17. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.374 to read as follows: |
|
Sec. 104.374. NO PERSONAL LIABILITY. The Commissioners of |
|
the commission, commission employees, the board of directors of the |
|
authority, and the employees of the authority shall not be |
|
personally liable as a result of exercising the duties and |
|
responsibilities established under this subchapter. |
|
SECTION 18. Chapter 104, Utilities Code, is amended by |
|
adding Section 104.375 to read as follows: |
|
Sec. 104.375. SEVERABILITY. Effective on the date the CRR |
|
bonds are issued under this subchapter, if any provision in this |
|
title or portion of this title is held to be invalid or is |
|
invalidated, superseded, replaced, repealed, or expires for any |
|
reason, that occurrence does not affect the validity or |
|
continuation of this subchapter or any other provision of this |
|
title that is relevant to the issuance, administration, payment, |
|
retirement, or refunding of CRR bonds or to any actions of the gas |
|
utility, its successors, an assignee, a collection agent, or a |
|
financing party, which shall remain in full force and effect. |
|
SECTION 20. This Act takes effect immediately if it |
|
receives a vote of two-thirds of all the members elected to each |
|
house, as provided by Section 39, Article III, Texas Constitution. |
|
If this Act does not receive the vote necessary for immediate |
|
effect, this Act takes effect September 1, 2021. |