By: Parker S.B. No. 498
A BILL TO BE ENTITLED
AN ACT
1-1 relating to continuation, operations, and functions of the Public
1-2 Utility Commission of Texas and the Office of Public Utility
1-3 Counsel; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1
1-6 SECTION 1.01. Section 3, Public Utility Regulatory Act
1-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
1-8 amending Subdivisions (a), (c), (u), and (v) and adding Subdivision
1-9 (f) to read as follows:
1-10 (a) The term "person," when used in this Act, includes
1-11 natural persons, partnerships of two or more persons having a joint
1-12 or common interest, mutual or cooperative associations, <water
1-13 supply or sewer service corporations,> and corporations, as herein
1-14 defined.
1-15 (c) The term "public utility" or "utility," when used in
1-16 this Act, includes any person, corporation, river authority,
1-17 cooperative corporation, or any combination thereof, other than a
1-18 municipal corporation <or a water supply or sewer service
1-19 corporation>, or their lessees, trustees, and receivers, now or
1-20 hereafter owning or operating for compensation in this state
1-21 equipment or facilities for:
1-22 (1) producing, generating, transmitting, distributing,
1-23 selling, or furnishing electricity ("electric utilities"
1-24 hereinafter) provided, however, that this definition shall not be
2-1 construed to apply to or include a qualifying small power producer
2-2 or qualifying cogenerator, as defined in Sections 3(17)(D) and
2-3 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
2-4 796(17)(D) and 796(18)(C));
2-5 (2)(A) the conveyance, transmission, or reception of
2-6 communications over a telephone system as a dominant carrier as
2-7 hereinafter defined ("telecommunications utilities" hereinafter);
2-8 provided that no person or corporation not otherwise a public
2-9 utility within the meaning of this Act shall be deemed such solely
2-10 because of the furnishing or furnishing and maintenance of a
2-11 private system or the manufacture, distribution, installation, or
2-12 maintenance of customer premise communications equipment and
2-13 accessories; and provided further that nothing in this Act shall be
2-14 construed to apply to telegraph services, television stations,
2-15 radio stations, community antenna television services, or
2-16 radio-telephone services that may be authorized under the Public
2-17 Mobile Radio Services rules of the Federal Communications
2-18 Commission, other than such radio-telephone services provided by
2-19 wire-line telephone companies under the Domestic Public Land Mobile
2-20 Radio Service and Rural Radio Service rules of the Federal
2-21 Communications Commission; and provided further that interexchange
2-22 telecommunications carriers (including resellers of interexchange
2-23 telecommunications services), specialized communications common
2-24 carriers, other resellers of communications, other communications
2-25 carriers who convey, transmit, or receive communications in whole
2-26 or in part over a telephone system, and providers of operator
2-27 services as defined in Section 18A(a) of this Act (except that
3-1 subscribers to customer-owned pay telephone service shall not be
3-2 deemed to be telecommunications utilities) <who are not dominant
3-3 carriers> are also telecommunications utilities, but the
3-4 commission's regulatory authority as to them is only as hereinafter
3-5 defined;
3-6 (B) "dominant carrier" when used in this Act
3-7 means (i) a provider of any particular communication service which
3-8 is provided in whole or in part over a telephone system who as to
3-9 such service has sufficient market power in a telecommunications
3-10 market as determined by the commission to enable such provider to
3-11 control prices in a manner adverse to the public interest for such
3-12 service in such market; and (ii) any provider of local exchange
3-13 telephone service within a certificated exchange area as to such
3-14 service. A telecommunications market shall be statewide until
3-15 January 1, 1985. After this date the commission may, if it
3-16 determines that the public interest will be served, establish
3-17 separate markets within the state. Prior to January 1, 1985, the
3-18 commission shall hold such hearings and require such evidence as is
3-19 necessary to carry out the public purpose of this Act and to
3-20 determine the need and effect of establishing separate markets.
3-21 Any such provider determined to be a dominant carrier as to a
3-22 particular telecommunications service in a market shall not be
3-23 presumed to be a dominant carrier of a different telecommunications
3-24 service in that market. The term does not include an interexchange
3-25 carrier that is not a certificated local exchange carrier, with
3-26 respect to interexchange services.
3-27 (3) The term "public utility" or "utility" shall not
4-1 include any person or corporation not otherwise a public utility
4-2 that furnishes the services or commodity described in any paragraph
4-3 of this subsection only to itself, its employees, or tenants as an
4-4 incident of such employee service or tenancy, when such service or
4-5 commodity is not resold to or used by others. The term "electric
4-6 utility" shall not include any person or corporation not otherwise
4-7 a public utility that owns or operates in this state equipment or
4-8 facilities for producing, generating, transmitting, distributing,
4-9 selling, or furnishing electric energy to an electric utility, if
4-10 the equipment or facilities are used primarily for the production
4-11 and generation of electric energy for consumption by the person or
4-12 corporation. The term "public utility," "utility," or "electric
4-13 utility" shall not include any person or corporation not otherwise
4-14 a public utility that owns or operates in this state a recreational
4-15 vehicle park that provides metered electric service in accordance
4-16 with Article 1446d-2, Revised Statutes. A recreational vehicle
4-17 park owner is considered a public utility if the owner fails to
4-18 comply with Article 1446d-2, Revised Statutes, with regard to the
4-19 metered sale of electricity at the recreational vehicle park.
4-20 (f) "Office" means the Office of Public Utility Counsel.
4-21 (u) <"Water supply or sewer service corporation" means a
4-22 nonprofit, member-owned corporation organized and operating under
4-23 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933,
4-24 as amended (Article 1434a, Vernon's Texas Civil Statutes).>
4-25 <(v)> "Local exchange company" means a telecommunications
4-26 utility certificated to provide local exchange service within the
4-27 state.
5-1 SECTION 1.02. Section 5, Public Utility Regulatory Act
5-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-3 as follows:
5-4 Sec. 5. A commission, to be known as the "Public Utility
5-5 Commission of Texas" is hereby created. It shall consist of three
5-6 commissioners, who shall be appointed to staggered, six-year terms
5-7 by the governor, with the advice and consent of two-thirds of the
5-8 members of the senate present, and who shall have and exercise the
5-9 jurisdiction and powers herein conferred upon the commission. Each
5-10 commissioner shall hold office until his successor is appointed and
5-11 qualified. The governor shall designate a member of the commission
5-12 as the chairman of the commission to serve in that capacity at the
5-13 pleasure of the governor <At its first meeting following the
5-14 biennial appointment and qualification of a commissioner, the
5-15 commission shall elect one of the commissioners chairman>.
5-16 Appointments to the commission shall be made without regard to the
5-17 race, color, handicap <creed>, sex, religion, age, or national
5-18 origin of the appointees.
5-19 SECTION 1.03. Section 5a, Public Utility Regulatory Act
5-20 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-21 as follows:
5-22 Sec. 5a. The Public Utility Commission of Texas and the
5-23 Office of Public Utility Counsel are subject to Chapter 325,
5-24 Government Code (Texas Sunset Act). Unless continued in existence
5-25 as provided by that chapter, the commission and the office <Office
5-26 of Public Utility Counsel> are abolished and this Act expires
5-27 September 1, 2001 <1993>.
6-1 SECTION 1.04. Section 6, Public Utility Regulatory Act
6-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
6-3 amending Subsections (a), (b), and (k) and adding Subsections (g),
6-4 (l), (m), (n), (o), and (p) to read as follows:
6-5 (a) To be eligible for appointment as a commissioner, a
6-6 person must be a qualified voter<, not less than 30 years of age>,
6-7 a citizen of the United States, and a resident of the State of
6-8 Texas. No person is eligible for appointment as a commissioner if
6-9 at any time during the two-year period immediately preceding his
6-10 appointment he personally served as an officer, director, owner,
6-11 employee, partner, or legal representative of any public utility or
6-12 any affiliated interest, or he owned or controlled, directly or
6-13 indirectly, stocks or bonds of any class with a value of $10,000,
6-14 or more in a public utility or any affiliated interest. Each
6-15 commissioner shall qualify for office by taking the oath prescribed
6-16 for other state officers and shall execute a bond for $5,000
6-17 payable to the state and conditioned on the faithful performance of
6-18 his duties. All members must be representatives of the general
6-19 public. A person may not serve as a member of the commission or
6-20 act as the legal counsel to the commission if the person <who> is
6-21 required to register as a lobbyist under Chapter 305, Government
6-22 Code, and its subsequent amendments, because of the person's
6-23 activities for compensation on behalf of a profession related to
6-24 the operation of the commission <may not serve as a member of the
6-25 commission or public utility counsel or act as the general counsel
6-26 to the commission>.
6-27 (b) No commissioner or employee of the commission may do any
7-1 of the following during his period of service with the commission:
7-2 (1) have any pecuniary interest, either as an officer,
7-3 director, partner, owner, employee, attorney, consultant, or
7-4 otherwise, in any public utility or affiliated interest, or in any
7-5 person or corporation or other business entity a significant
7-6 portion of whose business consists of furnishing goods or services
7-7 to public utilities or affiliated interests, but not including a
7-8 nonprofit group or association solely supported by gratuitous
7-9 contributions of money, property or services, other than a trade
7-10 association as defined by Subsection (n) of this section;
7-11 (2) own or control any securities in a public utility
7-12 or affiliated interest, either directly or indirectly;
7-13 (3) accept any gift, gratuity, or entertainment
7-14 whatsoever from any public utility or affiliated interest, or from
7-15 any person, corporation, agent, representative, employee, or other
7-16 business entity a significant portion of whose business consists of
7-17 furnishing goods or services to public utilities or affiliated
7-18 interests, or from any agent, representative, attorney, employee,
7-19 officer, owner, director, or partner of any such business entity or
7-20 of any public utility or affiliated interest; provided, however,
7-21 that the receipt and acceptance of any gifts, gratuities, or
7-22 entertainment after termination of service with the commission
7-23 whose cumulative value in any one-year period is less than $100
7-24 shall not constitute a violation of this Act.
7-25 (g) A person is not eligible for appointment as a public
7-26 member of the commission or for employment as the general counsel
7-27 or executive director of the commission if:
8-1 (1) the person serves on the board of directors of a
8-2 company that supplies fuel, utility-related services, or
8-3 utility-related products to regulated or unregulated electric or
8-4 telecommunications utilities; or
8-5 (2) the person or the person's spouse:
8-6 (A) is employed by or participates in the
8-7 management of a business entity or other organization regulated by
8-8 the commission or receiving funds from the commission;
8-9 (B) owns or controls, directly or indirectly,
8-10 more than a 10 percent interest or a pecuniary interest with a
8-11 value exceeding $10,000 in:
8-12 (i) a business entity or other
8-13 organization regulated by the commission or receiving funds from
8-14 the commission; or
8-15 (ii) any utility competitor, utility
8-16 supplier, or other entity affected by a commission decision in a
8-17 manner other than by the setting of rates for that class of
8-18 customer;
8-19 (C) uses or receives a substantial amount of
8-20 tangible goods, services, or funds from the commission, other than
8-21 compensation or reimbursement authorized by law for commission
8-22 membership, attendance, or expenses; or
8-23 (D) notwithstanding Paragraph (B) of this
8-24 subdivision, has an interest in a mutual fund or retirement fund in
8-25 which more than 10 percent of the fund's holdings at the time of
8-26 appointment is in a single utility, utility competitor, or utility
8-27 supplier in this state and the person does not disclose this
9-1 information to the governor, senate, commission, or other entity,
9-2 as appropriate.
9-3 (k) The commission shall provide to <require> its members
9-4 and employees, <to read this section and> as often as necessary,
9-5 <shall provide> information regarding their qualification for
9-6 office or employment under this Act and their responsibilities
9-7 under applicable laws relating to standards of conduct for state
9-8 officers or <and> employees.
9-9 (l) An officer, employee, or paid consultant of a trade
9-10 association in the field of public utilities may not be a member or
9-11 employee of the commission who is exempt from the state's position
9-12 classification plan or is compensated at or above the amount
9-13 prescribed by the General Appropriations Act for step 1, salary
9-14 group 17, of the position classification salary schedule.
9-15 (m) A person who is a spouse of an officer, manager, or paid
9-16 consultant of a trade association in the field of public utilities
9-17 may not be a commission member and may not be a commission employee
9-18 who is exempt from the state's position classification plan or is
9-19 compensated at or above the amount prescribed by the General
9-20 Appropriations Act for step 1, salary group 17, of the position
9-21 classification salary schedule.
9-22 (n) For the purposes of this section, a trade association is
9-23 a nonprofit, cooperative, and voluntarily joined association of
9-24 business or professional persons who are employed by public
9-25 utilities or utility competitors to assist the public utility
9-26 industry, a utility competitor, or the industry's or competitor's
9-27 employees in dealing with mutual business or professional problems
10-1 and in promoting their common interest.
10-2 (o) In this Act, an entity or utility supplier is considered
10-3 to be affected in a manner other than by the setting of rates for
10-4 that class of customer if during a relevant calendar year the
10-5 entity provides goods, products, fuel, or utility-related services
10-6 to a regulated or unregulated provider of telecommunications or
10-7 electric services or to an affiliated interest in an amount equal
10-8 to the greater of $10,000 or 10 percent of the person's business.
10-9 (p) Notwithstanding any other provision of this Act, a
10-10 person otherwise ineligible because of the application of Paragraph
10-11 (B) of Subdivision (2) of Subsection (g) of this section may be
10-12 appointed to the commission and serve as a commissioner or may be
10-13 employed as the general counsel or executive director if the
10-14 person:
10-15 (1) notifies the attorney general and commission that
10-16 the person is ineligible because of the application of Paragraph
10-17 (B) of Subdivision (2) of Subsection (g) of this section; and
10-18 (2) divests the person or the person's spouse of the
10-19 ownership or control before beginning service or employment, or
10-20 within a reasonable time if the person is already serving or
10-21 employed at the time Paragraph (B) of Subdivision (2) of Subsection
10-22 (g) of this section first applies to the person.
10-23 SECTION 1.05. Section 6A, Public Utility Regulatory Act
10-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
10-25 as follows:
10-26 Sec. 6A. (a) It is a ground for removal from the commission
10-27 if a member:
11-1 (1) does not have at the time of appointment the
11-2 qualifications required by Section 6 of this Act; <for appointment
11-3 to the commission; or>
11-4 (2) does not maintain during <the> service on the
11-5 commission the qualifications required by Section 6 of this Act;
11-6 (3) violates a prohibition established by Section 6 of
11-7 this Act;
11-8 (4) cannot discharge the member's duties for a
11-9 substantial part of the term for which the member is appointed
11-10 because of illness or disability; or
11-11 (5) is absent from more than half of the regularly
11-12 scheduled commission meetings that the member is eligible to attend
11-13 during a calendar year unless the absence is excused by majority
11-14 vote of the commission <for appointment to the commission>.
11-15 (b) The validity of an action of the commission is not
11-16 affected by the fact that it is <was> taken when a ground for
11-17 removal of a <member of the> commission member exists <existed>.
11-18 (c) If the executive director has knowledge that a potential
11-19 ground for removal exists, the executive director shall notify the
11-20 governor and the attorney general that a potential ground for
11-21 removal exists.
11-22 SECTION 1.06. Subsections (a), (d), (e), and (f), Section 8,
11-23 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
11-24 Statutes), are amended to read as follows:
11-25 (a) The commission shall employ an executive director, a
11-26 general counsel, and such officers<, administrative law judges,
11-27 hearing examiners, investigators, lawyers, engineers, economists,
12-1 consultants, statisticians, accountants, administrative assistants,
12-2 inspectors, clerical staff,> and other employees as it deems
12-3 necessary to carry out the provisions of this Act. All employees
12-4 receive such compensation as is fixed by the legislature. The
12-5 commission shall develop and implement policies that clearly define
12-6 the respective responsibilities of the commission and the staff of
12-7 the commission.
12-8 (d) <The commission shall employ administrative law judges
12-9 to preside at hearings of major importance before the commission.
12-10 An administrative law judge must be a licensed attorney with not
12-11 less than five years' general experience or three years' experience
12-12 in utility regulatory law. The administrative law judge shall
12-13 perform his duties independently from the commission.>
12-14 <(e)> The executive director or the executive director's
12-15 <his> designee shall develop an intra-agency <intraagency> career
12-16 ladder program. The program shall require intra-agency posting of
12-17 all non-entry-level positions concurrently with any public
12-18 posting<, one part of which shall be the intraagency posting of all
12-19 nonentry level positions for at least 10 days before any public
12-20 posting>. The executive director or the executive director's <his>
12-21 designee shall develop a system of annual performance evaluations
12-22 <based on measurable job tasks>. All merit pay for commission
12-23 employees must be based on the system established under this
12-24 section.
12-25 (e) <(f)> The executive director or the executive director's
12-26 <his/her> designee shall prepare and maintain a written policy
12-27 statement <plan> to assure implementation of a program of equal
13-1 employment opportunity under which <whereby> all personnel
13-2 transactions are made without regard to race, color, handicap
13-3 <disability>, sex, religion, age, or national origin. The policy
13-4 statement must <plans shall> include:
13-5 (1) personnel policies, including policies relating to
13-6 recruitment, evaluation, selection, appointment, training, and
13-7 promotion of personnel <a comprehensive analysis of all the
13-8 agency's work force by race, sex, ethnic origin, class of position,
13-9 and salary or wage>;
13-10 (2) a comprehensive analysis of the commission work
13-11 force that meets federal and state guidelines <plans for
13-12 recruitment, evaluation, selection, appointment, training,
13-13 promotion, and other personnel policies>;
13-14 (3) procedures by which a determination can be made of
13-15 significant underutilization in the commission work force of all
13-16 persons for whom federal or state guidelines encourage a more
13-17 equitable balance <steps reasonably designed to overcome any
13-18 identified underutilization of minorities and women in the agency's
13-19 work force>; and
13-20 (4) reasonable methods to address those areas of
13-21 significant underutilization appropriately.
13-22 (f) A policy statement prepared under Subsection (e) of this
13-23 section must <objectives and goals, timetables for the achievement
13-24 of the objectives and goals, and assignments of responsibility for
13-25 their achievement.>
13-26 <The plans shall be filed with the governor's office within
13-27 60 days of the effective date of this Act,> cover an annual period,
14-1 <and> be updated at least annually, and be filed with the
14-2 governor's office and the Commission on Human Rights.
14-3 (g) The governor's office shall deliver a biennial report to
14-4 the legislature based on the information received under Subsection
14-5 (f) of this section. The report may be made separately or as a
14-6 part of other biennial reports made to the legislature<. Progress
14-7 reports shall be submitted to the governor's office within 30 days
14-8 of November 1 and April 1 of each year and shall include the steps
14-9 the agency has taken within the reporting period to comply with
14-10 these requirements>.
14-11 SECTION 1.07. Section 10, Public Utility Regulatory Act
14-12 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
14-13 as follows:
14-14 Sec. 10. (a) The principal office of the commission shall
14-15 be located in the City of Austin, Texas, and shall be open daily
14-16 during the usual business hours, Saturdays, Sundays, and legal
14-17 holidays excepted. The commission shall hold meetings at its
14-18 office and at such other convenient places in the state as shall be
14-19 expedient and necessary for the proper performance of its duties.
14-20 (b) The commission shall develop and implement policies that
14-21 provide the public with a reasonable opportunity to appear before
14-22 the commission and to speak on any issue under the jurisdiction of
14-23 the commission.
14-24 SECTION 1.08. Subsection (a), Section 14, Public Utility
14-25 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
14-26 amended to read as follows:
14-27 (a) The commission shall file annually with the governor and
15-1 the presiding officer of each house of the legislature a complete
15-2 and detailed written report accounting for all funds received and
15-3 disbursed by the commission during the preceding fiscal year. The
15-4 annual report must be in the form and reported in the time provided
15-5 by the General Appropriations Act <publish an annual report to the
15-6 governor, summarizing its proceedings, listing its receipts and the
15-7 sources of its receipts, listing its expenditures and the nature of
15-8 such expenditures, and setting forth such other information
15-9 concerning the operations of the commission and the public utility
15-10 industry as it considers of general interest>.
15-11 SECTION 1.09. Section 14A, Public Utility Regulatory Act
15-12 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
15-13 as follows:
15-14 Sec. 14A. (a) The commission shall prepare information of
15-15 public <consumer> interest describing the <regulatory> functions of
15-16 the commission and <describing> the commission's procedures by
15-17 which <consumer> complaints are filed with and resolved by the
15-18 commission. The commission shall make the information available to
15-19 the <general> public and appropriate state agencies.
15-20 (b) The commission by rule shall establish methods by which
15-21 consumers and service recipients are notified of the name, mailing
15-22 address, and telephone number of the commission for the purpose of
15-23 directing complaints to the commission.
15-24 (c) The commission shall prepare and maintain a written plan
15-25 that describes how a person who does not speak English can be
15-26 provided reasonable access to the commission's programs. The
15-27 commission shall also comply with federal and state laws for
16-1 program and facility accessibility.
16-2 SECTION 1.10. Subsections (a) and (b), Section 83, Public
16-3 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
16-4 Statutes), are amended to read as follows:
16-5 (a) Any affected person may complain to the regulatory
16-6 authority in writing setting forth any act or thing done or omitted
16-7 to be done by any public utility in violation or claimed violation
16-8 of any law which the regulatory authority has jurisdiction to
16-9 administer, or of any order, ordinance, rule, or regulation of the
16-10 regulatory authority. The commission shall keep an information
16-11 file about each complaint filed with the commission that the
16-12 commission has authority to resolve <relating to a utility>. The
16-13 commission shall retain the file for a reasonable period.
16-14 (b) If a written complaint is filed with the commission that
16-15 the commission has authority to resolve <relating to a utility>,
16-16 the commission, at least <as frequently as> quarterly and until
16-17 final disposition of the complaint, shall notify the parties to the
16-18 complaint of the status of the complaint unless the notice would
16-19 jeopardize an undercover investigation.
16-20 SECTION 1.11. The changes in law made by this article
16-21 relating to the requirements for membership on the Public Utility
16-22 Commission of Texas or to employment as executive director or
16-23 general counsel of the commission apply only to a person appointed
16-24 or hired, as appropriate, on or after the effective date of this
16-25 Act and do not affect the entitlement of a member serving on the
16-26 commission on August 31, 1993, to continue to hold office for the
16-27 remainder of the term for which the person was appointed or the
17-1 ability of a person serving as executive director or general
17-2 counsel on August 31, 1993, to continue to hold that position.
17-3 ARTICLE 2
17-4 SECTION 2.01. (a) Article II, Public Utility Regulatory Act
17-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
17-6 adding Section 5b to read as follows:
17-7 Sec. 5b. The commission is subject to the requirements of
17-8 Article 13, State Purchasing and General Services Act (Article
17-9 601b, Vernon's Texas Civil Statutes), and its subsequent
17-10 amendments.
17-11 (b) This section takes effect September 1, 1995.
17-12 SECTION 2.02. Subsections (i) and (j), Section 6, Public
17-13 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
17-14 Statutes), are amended to read as follows:
17-15 (i) No commissioner shall within two years, and no employee
17-16 of the commission or of the State Office of Administrative Hearings
17-17 involved in hearing utility cases shall, within one year after his
17-18 employment with the commission or the State Office of
17-19 Administrative Hearings has ceased:
17-20 (1)<,> be employed by a public utility which was in
17-21 the scope of the commissioner's or employee's official
17-22 responsibility while the commissioner or employee was associated
17-23 with the commission or the State Office of Administrative Hearings;
17-24 or
17-25 (2) be employed by a utility competitor, utility
17-26 supplier, or other entity affected in a manner other than by the
17-27 setting of rates for that class of customer, provided that this
18-1 subdivision does not apply to an employee other than the general
18-2 counsel or executive director.
18-3 (j) During the time a commissioner or employee of the
18-4 commission or of the State Office of Administrative Hearings
18-5 involved in hearing utility cases is associated with the commission
18-6 or the State Office of Administrative Hearings or at any time
18-7 after, the commissioner or employee may not represent a person,
18-8 corporation, or other business entity before the commission, the
18-9 State Office of Administrative Hearings, or a court in a matter in
18-10 which the commissioner or employee was personally involved while
18-11 associated with the commission or the State Office of
18-12 Administrative Hearings or a matter that was within the
18-13 commissioner's or employee's official responsibility while the
18-14 commissioner or employee was associated with the commission or the
18-15 State Office of Administrative Hearings.
18-16 SECTION 2.03. Article III, Public Utility Regulatory Act
18-17 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
18-18 amending Subsections (b) and (c) of Section 8 and adding Section 8A
18-19 to read as follows:
18-20 (b) The executive director is responsible for the day-to-day
18-21 operations of the agency and shall coordinate the activities of
18-22 commission employees. The executive director shall coordinate with
18-23 the general counsel in providing assistance and technical advice to
18-24 the commissioners in evaluating the evidence and recommendations
18-25 offered by the utility division of the State Office of
18-26 Administrative Hearings <commission shall employ the following:>
18-27 <(1) an executive director;>
19-1 <(2) a director of hearings who has wide experience in
19-2 utility regulation and rate determination;>
19-3 <(3) a chief engineer who is a registered engineer and
19-4 an expert in public utility engineering and rate matters;>
19-5 <(4) a chief accountant who is a certified public
19-6 accountant, experienced in public utility accounting;>
19-7 <(5) a director of research who is experienced in the
19-8 conduct of analyses of industry, economics, energy, fuel, and other
19-9 related matters that the commission may want to undertake;>
19-10 <(6) a director of consumer affairs and public
19-11 information;>
19-12 <(7) a director of utility evaluation;>
19-13 <(8) a director of energy conservation; and>
19-14 <(9) a general counsel>.
19-15 (c) The <general counsel and his staff are responsible for
19-16 the gathering of information relating to all matters within the
19-17 authority of the commission.>
19-18 <The> duties of the general counsel and commission staff
19-19 include:
19-20 (1) accumulation of <evidence and other> information
19-21 from public utilities and from within <the accounting and technical
19-22 and other staffs of> the commission and from other sources for the
19-23 purposes specified herein;
19-24 (2) provision of legal advice and counsel to the
19-25 commission, executive director, and staff as a nonadvocate in any
19-26 case before the commission <preparation and presentation of such
19-27 evidence before the commission or its appointed examiner in
20-1 proceedings>;
20-2 (3) conduct of investigations of public utilities
20-3 under the jurisdiction of the commission;
20-4 (4) preparation of proposed changes in the rules of
20-5 the commission;
20-6 (5) preparation of recommendations that the commission
20-7 undertake investigation of any matter within its authority;
20-8 (6) preparation of recommendations and a report of
20-9 such staff for inclusion in the annual report of the commission;
20-10 and
20-11 (7) <protection and representation of the public
20-12 interest and coordination and direction of the preparation and
20-13 presentation of evidence from the commission staff in all cases
20-14 before the commission as necessary to effect the objectives and
20-15 purposes stated in this Act and ensure protection of the public
20-16 interest; and>
20-17 <(8)> such other activities as are reasonably
20-18 necessary to enable the staff <him> to perform its <his> duties.
20-19 Sec. 8A. (a) In addition to the other duties prescribed by
20-20 this Act, the general counsel and commission staff shall provide
20-21 technical assistance to the commissioners and administrative law
20-22 judges. Except as provided by Subsections (b) and (g) of this
20-23 section, the general counsel or a member of the staff may not
20-24 testify in a hearing in a case before the commission unless the
20-25 administrative law judge or the commission determines that
20-26 testimony on an issue is necessary to complete the record and that
20-27 another party has not addressed the issue.
21-1 (b) Except as otherwise specifically provided by this Act,
21-2 the general counsel and the staff may not be an advocate or a party
21-3 separate from the commission in any proceeding under the
21-4 jurisdiction of the commission. This subsection does not affect
21-5 the authority of the commission to enforce this Act or the
21-6 authority of the general counsel or the staff to handle
21-7 administrative and enforcement actions such as administrative
21-8 penalties and complaints. In an administrative or enforcement
21-9 action that is a docketed case, the general counsel and staff may
21-10 participate as a representative of the agency.
21-11 (c) For the purpose of completing the record in a contested
21-12 case, the staff, on request of a commissioner or administrative law
21-13 judge, shall audit, analyze, examine, review, and investigate:
21-14 (1) rates and charges;
21-15 (2) services provided;
21-16 (3) evidence admitted during a proceeding; and
21-17 (4) any other matter within the commission's
21-18 jurisdiction.
21-19 (d) If an administrative law judge or a commissioner
21-20 receives during a contested proceeding an audit, analysis, or
21-21 report under Subsection (c) of this section, the audit, analysis,
21-22 or report shall be admitted into the record of the proceeding.
21-23 (e) The general counsel and staff may provide technical
21-24 analytical commentary on evidence admitted into the record in a
21-25 proceeding before the commission. Except as required under
21-26 Subsection (a) of this section, the general counsel and staff may
21-27 not offer or consider evidence that is not in the record.
22-1 (f) Commentary prepared by the general counsel or staff on a
22-2 matter before the commission is for the use of the commissioners
22-3 and the administrative law judge and is confidential and not
22-4 subject to subpoena or discovery unless:
22-5 (1) the commission or an administrative law judge
22-6 admits the commentary into the record of the proceeding; or
22-7 (2) the commission agrees to disclose the commentary.
22-8 (g) If an audit, report, or commentary is admitted into the
22-9 record of a proceeding, the person who prepared the audit, report,
22-10 or commentary:
22-11 (1) may testify as to the contents of the audit,
22-12 report, or commentary and may be cross-examined by any party in
22-13 relation to the audit, report, or commentary; and
22-14 (2) may not provide additional technical or analytical
22-15 commentary to the commission during the proceedings on that matter.
22-16 (h) The general counsel and a member of the staff may not
22-17 directly or indirectly initiate, allow, or consider ex parte
22-18 communications concerning a matter before the commission with any
22-19 person other than:
22-20 (1) a commissioner;
22-21 (2) an administrative law judge; or
22-22 (3) a commission employee who has not participated in
22-23 a hearing related to the matter, but only for the purpose of using
22-24 that employee's special skills or knowledge to fulfill the staff
22-25 member's duties.
22-26 (i) This section does not affect the right of other parties
22-27 to appear and participate in a matter before the commission.
23-1 SECTION 2.04. (a) Article II, Public Utility Regulatory Act
23-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
23-3 amending Section 15A and adding Section 15B to read as follows:
23-4 Sec. 15A. (a) The independent Office of Public Utility
23-5 Counsel is hereby established to represent the interests of
23-6 residential and small commercial consumers.
23-7 (b) The chief executive of the office <Office of Public
23-8 Utility Counsel> is the public utility counsel, hereinafter
23-9 referred to as counsellor. The counsellor is appointed by the
23-10 governor with the advice and consent of the senate to a two-year
23-11 term that expires on February 1 of the final year of the term.
23-12 Appointment of the public utility counsel shall be made without
23-13 regard to the race, color, handicap, sex, religion, age, or
23-14 national origin of the appointee <Immediately after this section
23-15 takes effect, the governor shall, with the advice and consent of
23-16 the senate, appoint the public utility counsel>.
23-17 (c) The counsellor may employ such lawyers, economists,
23-18 engineers, consultants, statisticians, accountants, clerical staff,
23-19 and other employees as he or she deems necessary to carry out the
23-20 provisions of this section. All employees shall receive such
23-21 compensation as is fixed by the legislature from the assessment
23-22 imposed by Section 78 of this Act. The public utility counsel or
23-23 the counsellor's designee shall develop an intra-agency career
23-24 ladder program. The program shall require intra-agency postings of
23-25 all non-entry-level positions concurrently with any public posting.
23-26 The public utility counsel or the counsellor's designee shall
23-27 develop a system of annual performance evaluations. All merit pay
24-1 for office employees must be based on the system established under
24-2 this subsection. The office shall provide to the public utility
24-3 counsel and its employees, as often as necessary, information
24-4 regarding their qualification for office or employment under this
24-5 Act and their responsibilities under applicable laws relating to
24-6 standards of conduct for state officers or employees.
24-7 (d) The counsellor shall be a resident of Texas and admitted
24-8 to the practice of law in this state who has demonstrated a strong
24-9 commitment and involvement in efforts to safeguard the rights of
24-10 the public and possesses the knowledge and experience necessary to
24-11 practice effectively in utility proceedings. A person is not
24-12 eligible for appointment as public utility counsel if the person or
24-13 the person's spouse:
24-14 (1) is employed by or participates in the management
24-15 of a business entity or other organization regulated by the
24-16 commission or receiving funds from the commission;
24-17 (2) owns or controls, directly or indirectly, more
24-18 than a 10 percent interest or a pecuniary interest with a value
24-19 exceeding $10,000 in:
24-20 (A) a business entity or other organization
24-21 regulated by the commission or receiving funds from the commission
24-22 or the office; or
24-23 (B) any utility competitor, utility supplier, or
24-24 other entity affected by a commission decision in a manner other
24-25 than by the setting of rates for that class of customer;
24-26 (3) uses or receives a substantial amount of tangible
24-27 goods, services, or funds from the commission or the office, other
25-1 than compensation or reimbursement authorized by law for counsellor
25-2 or commission membership, attendance, or expenses; or
25-3 (4) notwithstanding Subdivision (2) of this
25-4 subsection, has an interest in a mutual fund or retirement fund in
25-5 which more than 10 percent of the fund's holdings is in a single
25-6 utility, utility competitor, or utility supplier in this state and
25-7 the person does not disclose this information to the governor,
25-8 senate, or other entity, as appropriate.
25-9 (e) A person may not serve as counsellor or act as the
25-10 general counsel for the office if the person is required to
25-11 register as a lobbyist under Chapter 305, Government Code, because
25-12 of the person's activities for compensation related to the
25-13 operation of the commission or the office.
25-14 (f) An officer, employee, or paid consultant of a trade
25-15 association in the field of public utilities may not serve as
25-16 counsellor or be an employee of the office who is exempt from the
25-17 state's position classification plan or is compensated at or above
25-18 the amount prescribed by the General Appropriations Act for step 1,
25-19 salary group 17, of the position classification salary schedule. A
25-20 person who is the spouse of an officer, manager, or paid consultant
25-21 of a trade association in the field of public utilities may not
25-22 serve as counsellor and may not be an office employee who is exempt
25-23 from the state's position classification plan or is compensated at
25-24 or above the amount prescribed by the General Appropriations Act
25-25 for step 1, salary group 17, of the position classification salary
25-26 schedule. For the purposes of this subsection, a trade association
25-27 is a nonprofit, cooperative, and voluntarily joined association of
26-1 business or professional persons who are employed by public
26-2 utilities or utility competitors to assist the public utility
26-3 industry, a utility competitor, or the industry's or competitor's
26-4 employees in dealing with mutual business or professional problems
26-5 and in promoting their common interest.
26-6 (g) Notwithstanding any other provision of this Act, a
26-7 person otherwise ineligible because of the application of
26-8 Subdivision (2) of Subsection (d) of this section may be appointed
26-9 as counsellor and may serve as counsellor if the person:
26-10 (1) notifies the attorney general and commission that
26-11 the person is ineligible because of the application of Subdivision
26-12 (2) of Subsection (d) of this section; and
26-13 (2) divests the person or the person's spouse of the
26-14 ownership or control before appointment, or within a reasonable
26-15 time if the person is already serving at the time Subdivision (2)
26-16 of Subsection (d) of this section first applies to the person.
26-17 (h) During the period of the counsellor's employment and for
26-18 a period of two years following the termination of employment, it
26-19 shall be unlawful for any person employed as counsellor to have a
26-20 direct or indirect interest in any utility company regulated under
26-21 the Public Utility Regulatory Act, to provide legal services
26-22 directly or indirectly to or be employed in any capacity by a
26-23 utility company regulated under the Public Utility Regulatory Act,
26-24 its parent, or its subsidiary companies, corporations, or
26-25 cooperatives or a utility competitor, utility supplier, or other
26-26 entity affected in a manner other than by the setting of rates for
26-27 that class of customer; but such person may otherwise engage in the
27-1 private practice of law after the termination of employment as the
27-2 counsellor. It is a ground for removal from office if the
27-3 counsellor:
27-4 (1) does not have at the time of appointment the
27-5 qualifications required by this section;
27-6 (2) does not maintain during service as counsellor the
27-7 qualifications required by this section;
27-8 (3) violates a prohibition established by this
27-9 section; or
27-10 (4) cannot discharge the counsellor's duties for a
27-11 substantial part of the term for which the counsellor is appointed
27-12 because of illness or disability.
27-13 (i) The validity of an action of the office is not affected
27-14 by the fact that it is taken when a ground for removal of the
27-15 counsellor exists.
27-16 (j) The office shall file annually with the governor and the
27-17 presiding officer of each house of the legislature a complete and
27-18 detailed written report accounting for all funds received and
27-19 disbursed by the office during the preceding fiscal year. The
27-20 annual report must be in the form and reported in the time provided
27-21 by the General Appropriations Act.
27-22 (k) The office shall prepare information of public interest
27-23 describing the functions of the office. The office shall make the
27-24 information available to the public and appropriate state agencies.
27-25 (l) The counsellor or the counsellor's designee shall
27-26 prepare and maintain a written policy statement to assure
27-27 implementation of a program of equal employment opportunity under
28-1 which all personnel transactions are made without regard to race,
28-2 color, handicap, sex, religion, age, or national origin. The
28-3 policy statement must include:
28-4 (1) personnel policies, including policies relating to
28-5 recruitment, evaluation, selection, appointment, training, and
28-6 promotion of personnel;
28-7 (2) a comprehensive analysis of the office work force
28-8 that meets federal and state guidelines;
28-9 (3) procedures by which a determination can be made of
28-10 significant underutilization in the office work force of all
28-11 persons for whom federal or state guidelines encourage a more
28-12 equitable balance; and
28-13 (4) reasonable methods to address those areas of
28-14 significant underutilization appropriately.
28-15 (m) A policy statement prepared under Subsection (l) of this
28-16 section must cover an annual period, be updated at least annually,
28-17 and be filed with the governor's office and the Commission on Human
28-18 Rights. The governor's office shall deliver a biennial report to
28-19 the legislature based on the information received under this
28-20 subsection. The report may be made separately or as a part of
28-21 other biennial reports made to the legislature.
28-22 (n) The office shall prepare and maintain a written plan
28-23 that describes how a person who does not speak English can be
28-24 provided reasonable access to the office's programs. The office
28-25 shall also comply with federal and state laws for program and
28-26 facility accessibility.
28-27 (o) The office is subject to the requirements of Article 13,
29-1 State Purchasing and General Services Act (Article 601b, Vernon's
29-2 Texas Civil Statutes), and its subsequent amendments.
29-3 (p) In this section, an entity or utility supplier is
29-4 considered to be affected in a manner other than by the setting of
29-5 rates for that class of customer if during a relevant calendar year
29-6 the entity provides goods, products, fuel, or services to a
29-7 regulated or unregulated provider of telecommunications or electric
29-8 services or to an affiliated interest in an amount equal to the
29-9 lesser of $10,000 or 10 percent of the person's business.
29-10 Sec. 15B. (a) <(f)> The Office of Public Utility Counsel:
29-11 (1) shall assess the impact of utility rate changes
29-12 and other regulatory actions on residential consumers in the State
29-13 of Texas and shall be an advocate in its own name of positions most
29-14 advantageous to a substantial number of such consumers as
29-15 determined by the counsellor;
29-16 (2) shall <may> appear or intervene as a matter of
29-17 right as a party or otherwise on behalf of residential consumers,
29-18 as a class, in all proceedings before the commission that affect
29-19 residential consumers;
29-20 (3) may appear or intervene as a matter of right as a
29-21 party or otherwise on behalf of small commercial consumers, as a
29-22 class, in all proceedings where it is deemed by the counsel that
29-23 small commercial consumers are in need of representation;<.>
29-24 (4) may initiate or intervene as a matter of right or
29-25 otherwise appear in any judicial proceedings involving or arising
29-26 out of any action taken by an administrative agency in a proceeding
29-27 in which the counsel was authorized to appear;
30-1 (5) may have access as any party<, other than staff,>
30-2 to all records gathered by the commission under the authority of
30-3 Subsection (a) of Section 29 of this Act;
30-4 (6) may obtain discovery of any nonprivileged matter
30-5 which is relevant to the subject matter involved in any proceeding
30-6 or petition before the commission;
30-7 (7) may represent individual residential and small
30-8 commercial consumers with respect to their disputed complaints
30-9 concerning utility services unresolved before the commission; and
30-10 (8) may recommend legislation to the legislature which
30-11 in its judgment would positively affect the interests of
30-12 residential and small commercial consumers.
30-13 (b) <(g) Nothing in this section shall be construed as in
30-14 any way limiting the authority of the commission to represent
30-15 residential or small commercial consumers.>
30-16 <(h)> The appearance of the Public Counsel in any proceeding
30-17 in no way precludes the appearance of other parties on behalf of
30-18 residential ratepayers or small commercial consumers. The Public
30-19 Counsel shall not be grouped with any other parties.
30-20 (c) <(i)> There shall be only one Office of Public Utility
30-21 Counsel even though that office may be referenced in one or more
30-22 Acts of the 68th Legislature.
30-23 (b) The changes in law made by this section relating to the
30-24 requirements for service as public utility counsel apply only to an
30-25 appointment made on or after the effective date of this section and
30-26 do not affect the entitlement of the public utility counsel serving
30-27 on August 31, 1993, to continue to hold office for the remainder of
31-1 the term for which the person was appointed.
31-2 (c) Subsection (o), Section 15A, Public Utility Regulatory
31-3 Act (Article 1446c, Vernon's Texas Civil Statutes), as added by
31-4 this section, takes effect September 1, 1995.
31-5 SECTION 2.05. Section 16, Public Utility Regulatory Act
31-6 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
31-7 as follows:
31-8 Sec. 16. (a) The commission has the general power to
31-9 regulate and supervise the business of every public utility within
31-10 its jurisdiction and to do all things, whether specifically
31-11 designated in this Act or implied herein, necessary and convenient
31-12 to the exercise of this power and jurisdiction. The commission
31-13 shall make and enforce rules reasonably required in the exercise of
31-14 its powers and jurisdiction, including rules governing practice and
31-15 procedure before the commission and, as applicable, practice and
31-16 procedure before the utility division of the State Office of
31-17 Administrative Hearings. The commission shall adopt rules
31-18 authorizing an administrative law judge to:
31-19 (1) limit the amount of time that a party may have to
31-20 present its case;
31-21 (2) limit the number of requests for information that
31-22 a party may make in a contested case;
31-23 (3) require a party to a contested case to identify
31-24 contested issues and facts before the hearing begins and to limit
31-25 cross-examination to only those issues and facts and to any new
31-26 issues that may arise as a result of the discovery process; or
31-27 (4) group parties, other than the office, that have
32-1 the same position on an issue to facilitate cross-examination on
32-2 that issue, provided that each party in a group is entitled to
32-3 present that party's witnesses for cross-examination during the
32-4 hearing.
32-5 (b) Rules adopted under Subsection (a) of this section must
32-6 ensure that all parties receive due process.
32-7 (c) The commission may call and hold hearings, other than
32-8 contested case hearings assigned to be heard by the utility
32-9 division of the State Office of Administrative Hearings or other
32-10 hearings delegated to the division under this subsection,
32-11 administer oaths, receive evidence at hearings, issue subpoenas to
32-12 compel the attendance of witnesses and the production of papers and
32-13 documents, and make findings of fact and decisions with respect to
32-14 administering the provisions of this Act or the rules, orders, or
32-15 other actions of the commission. Notwithstanding any other
32-16 provision of this Act or other law, in proceedings other than those
32-17 involving major rate changes, the commission may delegate to an
32-18 administrative law judge in the utility division of the State
32-19 Office of Administrative Hearings <or hearings examiner> the
32-20 authority to make a final decision and to issue findings of fact,
32-21 conclusions of law, and other necessary orders in a proceeding in
32-22 which there is no contested issue of fact or law. The commission,
32-23 by rule, shall define the procedures by which it delegates final
32-24 decision making authority authorized by this section. For review
32-25 purposes the final decision of the administrative law judge <or
32-26 hearings examiner> has the same effect as a final decision of the
32-27 commission unless a commissioner requests formal review of the
33-1 decision.
33-2 (d) <(b) The commission shall develop a long-term statewide
33-3 electrical energy forecast which shall be sent to the governor
33-4 biennially. The forecast will include an assessment of how
33-5 alternative energy sources, conservation, and load management will
33-6 meet the state's electricity needs.>
33-7 <(c) Every generating electric utility in the state shall
33-8 prepare and transmit to the commission by December 31, 1983, and
33-9 every two years thereafter a report specifying at least a 10-year
33-10 forecast for assessments of load and resources for its service
33-11 area. The report shall include a list of facilities which will be
33-12 required to supply electric power during the forecast periods. The
33-13 report shall be in a form prescribed by the commission. The report
33-14 shall include:>
33-15 <(1) a tabulation of estimated peak load, resources,
33-16 and reserve margins for each year during the forecast or assessment
33-17 period;>
33-18 <(2) a list of existing electric generating plants in
33-19 service with a description of planned and potential generating
33-20 capacity at existing sites;>
33-21 <(3) a list of facilities which will be needed to
33-22 serve additional electrical requirements identified in the
33-23 forecasts or assessments, the general location of such facilities,
33-24 and the anticipated types of fuel to be utilized in the proposed
33-25 facilities, including an estimation of shutdown costs and disposal
33-26 of spent fuel for nuclear power plants;>
33-27 <(4) a description of additional system capacity which
34-1 might be achieved through, among other things, improvements in (A)
34-2 generating or transmission efficiency, (B) importation of power,
34-3 (C) interstate or interregional pooling, (D) other improvements in
34-4 efficiencies of operation; and (E) conservation measures;>
34-5 <(5) an estimation of the mix and type of fuel
34-6 resources for the forecast or assessment period;>
34-7 <(6) an annual load duration curve and a forecast of
34-8 anticipated peak loads for the forecast or assessment period for
34-9 the residential, commercial, industrial, and such other major
34-10 demand sectors in the service area of the electric utility as the
34-11 commission shall determine; and>
34-12 <(7) a description of projected population growth,
34-13 urban development, industrial expansion, and other growth factors
34-14 influencing increased demand for electric energy and the basis for
34-15 such projections.>
34-16 <(d) The commission shall establish and every electric
34-17 utility shall utilize a reporting methodology for preparation of
34-18 the forecasts of future load and resources.>
34-19 <(e) The commission shall review and evaluate the electric
34-20 utilities' forecast of load and resources and any public comment on
34-21 population growth estimates prepared by Bureau of Business
34-22 Research, University of Texas at Austin.>
34-23 <(f) Within 12 months after the receipt of the reports
34-24 required in Subsection (b) of this section, the commission shall
34-25 hold a public hearing and subsequently issue a final report to the
34-26 governor and notify every electric utility of the commission's
34-27 electric forecast for that utility. The commission shall consider
35-1 its electric forecast in all certification proceedings covering new
35-2 generation plant.>
35-3 <(g)> The commission shall make and enforce rules to
35-4 encourage the economical production of electric energy by
35-5 qualifying cogenerators and qualifying small power producers.
35-6 (e) <(h)> The commission shall inquire into the management
35-7 of the business of all public utilities under its jurisdiction,
35-8 shall keep itself informed as to the manner and method in which the
35-9 management and business is conducted, and shall obtain from any
35-10 public utility all necessary information to enable the commission
35-11 to perform management audits. The commission may audit each
35-12 utility under the jurisdiction of the commission as frequently as
35-13 needed<, but shall audit each utility at least once every 10
35-14 years>. Six months after any audit, the utility shall report to
35-15 the commission on the status of the implementation of the
35-16 recommendations of the audit and shall file subsequent reports at
35-17 such times as the commission deems appropriate.
35-18 SECTION 2.06. (a) Subsections (c), (d), (l), and (n),
35-19 Section 18, Public Utility Regulatory Act (Article 1446c, Vernon's
35-20 Texas Civil Statutes), are amended to read as follows:
35-21 (c) Except as provided by Subsections (l) and (m) of this
35-22 section and Section 18A of this Act, the commission shall only
35-23 have the following jurisdiction over all telecommunications
35-24 utilities who are not dominant carriers:
35-25 (1) to require registration as provided in Subsection
35-26 (d) of this section;
35-27 (2) to conduct such investigations as are necessary to
36-1 determine the existence, impact, and scope of competition in the
36-2 telecommunications industry, including identifying dominant
36-3 carriers in the local exchange and intralata interexchange
36-4 telecommunications industry and defining the telecommunications
36-5 market or markets, and in connection therewith may call and hold
36-6 hearings, issue subpoenas to compel the attendance of witnesses and
36-7 the production of papers and documents, and make findings of fact
36-8 and decisions with respect to administering the provisions of this
36-9 Act or the rules, orders, and other actions of the commission;
36-10 (3) to require the filing of such reports as the
36-11 commission may direct from time to time;
36-12 (4) to require the maintenance of statewide average
36-13 rates or prices of telecommunications service;
36-14 (5) to require that every local exchange area have
36-15 access to interexchange telecommunications service, except that an
36-16 interexchange telecommunications carrier must be allowed to
36-17 discontinue service to a local exchange area if comparable service
36-18 is available in the area and the discontinuance is not contrary to
36-19 the public interest. This section does not authorize the
36-20 commission to require an interexchange telecommunications carrier
36-21 that has not provided services to a local exchange area during the
36-22 previous 12 months and that has never provided services to that
36-23 same local exchange area for a cumulative period of one year at any
36-24 time in the past to initiate services to that local exchange area;
36-25 and
36-26 (6) to require the quality of interexchange
36-27 telecommunications service provided in each exchange to be adequate
37-1 to protect the public interest and the interests of customers of
37-2 that exchange if the commission determines that service to a local
37-3 exchange has deteriorated to the point that long distance service
37-4 is not reliable.
37-5 (d) All providers of communications service described in
37-6 Subsection (c) of this section who are providing such service to
37-7 the public on the effective date of this Act shall register with
37-8 the commission within 90 days of the effective date of this Act
37-9 unless the provider has previously registered with the commission.
37-10 All providers of communications service described in Subsection (c)
37-11 of this section who commence such service to the public thereafter
37-12 shall register with the commission within 30 days of commencing
37-13 service. Such registration shall be accomplished by filing with
37-14 the commission a description of the location and type of service
37-15 provided, the cost to the public of such service, and such other
37-16 registration information as the commission may direct.
37-17 Notwithstanding any other provision of this Act, an interexchange
37-18 telecommunications carrier doing business in this state shall
37-19 continue to maintain on file with the commission tariffs or lists
37-20 governing the terms of providing its services.
37-21 (l) Notwithstanding any other provision of this Act, the
37-22 commission may enter such orders as may be necessary to protect the
37-23 public interest, including the imposition on any specific service
37-24 or services of its full regulatory authority under Articles III
37-25 through XI of this Act, if the commission upon complaint from
37-26 another interexchange telecommunications carrier finds by a
37-27 preponderance of the evidence upon notice and hearing that an
38-1 interexchange telecommunications carrier has engaged in predatory
38-2 pricing or attempted to engage in predatory pricing <conduct that
38-3 demonstrates the ability to control prices in a manner adverse to
38-4 the public interest>.
38-5 (n) In any proceeding before the commission alleging conduct
38-6 or activities by an interexchange telecommunications carrier
38-7 against another interexchange carrier in contravention of
38-8 Subsections (l), (m), and (o) of this section, the burden of proof
38-9 shall be upon the complaining interexchange telecommunications
38-10 carrier; however, in such proceedings brought by customers or their
38-11 representatives who are not themselves interexchange
38-12 telecommunications carriers or in such proceedings initiated by the
38-13 commission <commission's general counsel>, the burden of proof
38-14 shall be upon the respondent interexchange telecommunications
38-15 carrier. However, if the commission finds it to be in the public
38-16 interest, the commission may impose the burden of proof in such
38-17 proceedings on the complaining party.
38-18 (b) Sections 100 and 101, Public Utility Regulatory Act
38-19 (Article 1446c, Vernon's Texas Civil Statutes), are repealed.
38-20 SECTION 2.07. Article III, Public Utility Regulatory Act
38-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
38-22 adding Section 19 to read as follows:
38-23 Sec. 19. (a) The commission by rule shall develop an
38-24 integrated resource planning process to provide reliable energy
38-25 service at the lowest overall cost.
38-26 (b) The commission shall adopt and periodically update a
38-27 statewide integrated resource plan. The commission shall send the
39-1 plan to the governor when it adopts or revises the plan and notify
39-2 each electric utility of the approval of the statewide plan and of
39-3 the utility's individual utility plan.
39-4 (c) The statewide plan shall include:
39-5 (1) the approved individual plans of electric
39-6 generating utilities;
39-7 (2) an assessment of how alternative energy sources,
39-8 conservation, and load management will meet the state's electricity
39-9 needs;
39-10 (3) the commission's goals for the use of various
39-11 energy resources; and
39-12 (4) other information required by the commission.
39-13 (d) In the manner specified by the commission, each
39-14 generating electric utility shall submit to the commission on a
39-15 staggered schedule adopted by the commission a plan to increase its
39-16 supply of electricity or to decrease the demands made on its system
39-17 by its customers.
39-18 (e) The contents of such a plan shall include but are not
39-19 limited to the methods that are used by the utility to:
39-20 (1) forecast the future demands; and
39-21 (2) determine the lowest cost combination of resources
39-22 to meet the demands or the lowest cost method to reduce the
39-23 demands.
39-24 (f) After a utility has filed its plan, the commission shall
39-25 convene a public hearing on the adequacy of the plan. A commission
39-26 hearing is not required for a plan filed by a municipally owned
39-27 electric utility or a plan filed by a river authority or generating
40-1 electric cooperative that does not intend to build a new generating
40-2 plant. At the hearing, any interested person may intervene,
40-3 present evidence, and cross-examine witnesses regarding the
40-4 contents and adequacy of the plan.
40-5 (g) After the hearing, the commission shall determine
40-6 whether:
40-7 (1) the utility's plan is based on substantially
40-8 accurate data and an adequate method of forecasting;
40-9 (2) the plan identifies and takes into account any
40-10 present and projected reductions in the demand for energy that may
40-11 result from measures to improve conservation and energy efficiency
40-12 in various customer classes of the area being served;
40-13 (3) the plan adequately demonstrates the economic,
40-14 environmental, and other benefits to this state and to the
40-15 customers of the utility associated with the following possible
40-16 measures and sources of supply:
40-17 (A) improvements in conservation and energy
40-18 efficiency;
40-19 (B) demand-side management;
40-20 (C) purchases and sales of power;
40-21 (D) wheeling of power;
40-22 (E) renewable resources;
40-23 (F) cogeneration; and
40-24 (G) any other facilities; and
40-25 (4) the plan demonstrates the participation of
40-26 nongenerating utilities in the development of the plan, if the
40-27 utility makes wholesale sales to nongenerating utilities.
41-1 (h) The commission may determine the measures and sources of
41-2 supply set forth in Subdivision (3) of Subsection (g) of this
41-3 section that, on balance, provide reliable energy services at the
41-4 lowest overall cost.
41-5 (i) Within 365 days after the date on which a utility has
41-6 filed its plan, the commission shall issue a final order on the
41-7 plan. The commission may approve, disapprove, or amend and approve
41-8 the plan.
41-9 (j) In carrying out its duties related to the integrated
41-10 resource planning process, the commission may:
41-11 (1) allow timely recovery of reasonable costs of
41-12 conservation, load management, and purchased power, notwithstanding
41-13 Subdivision (1) of Subsection (g) of Section 43 of this Act;
41-14 (2) authorize additional incentives for conservation,
41-15 load management, purchased power, and renewable resources;
41-16 (3) require a utility to provide transmission service
41-17 to another utility or any other entity authorized to generate and
41-18 sell electricity; and
41-19 (4) review the state's transmission system to
41-20 determine and make recommendations to electric utilities on the
41-21 need to build new power lines, upgrade power lines, and make other
41-22 improvements and additions as necessary, and who should pay the
41-23 cost of these improvements if made, review the actions of the
41-24 electric utilities in light of such recommendations, and take such
41-25 actions into account in fixing a reasonable return on invested
41-26 capital under Subsection (b) of Section 39 of this Act.
41-27 (k) Before permitting cost recovery or incentives for the
42-1 utility for a conservation or demand-side management program, the
42-2 commission must first find that the program is cost-effective in
42-3 comparison with all other available resources.
42-4 (l) In prescribing requirements under this section,
42-5 including reporting requirements, the commission shall consider and
42-6 recognize the different generating capacities of small and large
42-7 utilities.
42-8 (m) The process must include procedures for electric
42-9 utilities to solicit proposals for alternative energy resources,
42-10 whether supply-side or demand-side. In any such solicitation, the
42-11 utility shall consider the feasibility, cost, reliability, and
42-12 other relevant factors of the solicited resources.
42-13 (n) The commission may impose and revise limits on the cost
42-14 of a resource addition that may be included in the utility's
42-15 invested capital, for ratemaking purposes, based on the costs
42-16 relied on by the commission in approving the utility's integrated
42-17 resource plan or certificate of convenience and necessity.
42-18 (o) In addition to its other authority and responsibility
42-19 under this section, the commission shall establish rules and
42-20 guidelines which will ensure the development of renewable energy
42-21 technologies consistent with the criteria of the integrated
42-22 resource planning process.
42-23 SECTION 2.08. Subsection (b), Section 39, Public Utility
42-24 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
42-25 amended to read as follows:
42-26 (b) In fixing a reasonable return on invested capital, the
42-27 regulatory authority shall consider, in addition to other
43-1 applicable factors, efforts to comply with the most recent
43-2 statewide integrated resource plan and the utility's most recent
43-3 approved individual integrated resource <energy> plan, the efforts
43-4 and achievements of such utility in the conservation of resources,
43-5 the quality of the utility's services, the efficiency of the
43-6 utility's operations, and the quality of the utility's management.
43-7 SECTION 2.09. Subsections (a) and (c), Section 52, Public
43-8 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
43-9 Statutes), are amended to read as follows:
43-10 (a) A public utility shall submit to the commission an
43-11 application to obtain a certificate of public convenience and
43-12 necessity or an amendment thereof. The utility shall file
43-13 concurrently with the office a copy of the application.
43-14 (c) Each applicant for a certificate shall file with the
43-15 commission and the office such evidence as is required by the
43-16 commission to show that the applicant has received the required
43-17 consent, franchise, or permit of the proper municipality or other
43-18 public authority.
43-19 SECTION 2.10. Section 52, Public Utility Regulatory Act
43-20 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
43-21 adding Subsection (d) to read as follows:
43-22 (d) Except as provided by rule, the commission may not
43-23 accept an application for a certificate of convenience and
43-24 necessity relating to the construction of an electric generating
43-25 plant if the utility's most recent individual integrated resource
43-26 plan has been filed with the commission but has not yet been
43-27 approved.
44-1 SECTION 2.11. Section 54, Public Utility Regulatory Act
44-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
44-3 as follows:
44-4 Sec. 54. (a) When an application for a certificate of
44-5 public convenience and necessity is filed, the commission shall
44-6 give notice of such application to interested parties and, if
44-7 requested, shall fix a time and place for a hearing and give notice
44-8 of the hearing. Any person interested in the application may
44-9 intervene at the hearing.
44-10 (b) Except for certificates for prior operations granted
44-11 under Section 53 and certificates for the construction of an
44-12 electric generating plant, the commission may grant applications
44-13 and issue certificates only if the commission finds that the
44-14 certificate is necessary for the service, accommodation,
44-15 convenience, or safety of the public. The commission may grant
44-16 applications and issue certificates for the construction of an
44-17 electric generating plant only if the proposed plant has been
44-18 approved by the commission as part of the utility's most recent
44-19 approved individual integrated resource plan and the utility has
44-20 conducted a solicitation based on the resource for which it is
44-21 seeking a certificate. The commission may issue the certificate as
44-22 prayed for, or refuse to issue it, or issue it for the construction
44-23 of a portion only of the contemplated system or facility or
44-24 extension thereof, or for the partial exercise only of the right or
44-25 privilege.
44-26 (c) Except as provided by Subsection (d) of this section,
44-27 certificates <Certificates> of convenience and necessity shall be
45-1 granted on a nondiscriminatory basis after consideration by the
45-2 commission of the adequacy of existing service, the need for
45-3 additional service, the effect of the granting of a certificate on
45-4 the recipient of the certificate and on any public utility of the
45-5 same kind already serving the proximate area, and on such factors
45-6 as community values, recreational and park areas, historical and
45-7 aesthetic values, environmental integrity, and the probable
45-8 improvement of service or lowering of cost to consumers in such
45-9 area resulting from the granting of such certificate.
45-10 (d) A <In addition to the requirements of this section, an
45-11 electric utility applying for certificate of convenience and
45-12 necessity for a new generating plant must first file a notice of
45-13 intent to file an application for certification.>
45-14 <(1) The notice of intent shall set out alternative
45-15 methods considered to help meet the electrical needs, related
45-16 electrical facilities, and the advantages and disadvantages of the
45-17 alternatives. In addition, the notice shall indicate compatibility
45-18 with the most recent long-term forecast provided in this Act.>
45-19 <(2) The commission shall conduct a hearing on the
45-20 notice of intent to determine the appropriateness of the proposed
45-21 generating plant as compared to the alternatives and shall issue a
45-22 report on its findings. In conjunction with the issuance of the
45-23 report, the commission shall render a decision approving or
45-24 disapproving the notice. Such decision shall be rendered within
45-25 180 days from the date of filing the notice of intent.>
45-26 <(e) On approval of the notice of intent, a> utility may
45-27 apply for certification for a generating plant<,> site<,> and site
46-1 facilities no later than 12 months before construction is to
46-2 commence.
46-3 (1) The application for certification shall contain
46-4 such information as the commission may require to justify the
46-5 proposed generating plant<,> site<,> and site facilities and to
46-6 allow a determination showing compatibility with the utility's most
46-7 recent approved individual integrated resource plan <forecast>.
46-8 (2) Certificates of convenience and necessity shall be
46-9 granted on a nondiscriminatory basis if the commission finds that
46-10 the proposed new plant is required under the utility's most recent
46-11 approved individual integrated resource plan <service area
46-12 forecast, that it is the best and most economical choice of
46-13 technology for that service area as compatible with the
46-14 commission's forecast, and that conservation and alternative energy
46-15 sources cannot meet the need>. In making this determination, the
46-16 commission shall review the solicitation process and the utility's
46-17 decision with respect to the offers it received. In determining
46-18 whether to grant a certificate, the commission shall consider the
46-19 factors prescribed by this subsection and Subsection (c) of this
46-20 section. The commission may not reconsider issues that were
46-21 decided by the commission in the utility's most recent individual
46-22 integrated resource plan.
46-23 (e) The <(f) If the application for a certificate of
46-24 convenience and necessity involves new transmission facilities,
46-25 the> commission shall approve or deny an application for a
46-26 certificate of convenience and necessity relating to construction
46-27 of an electric generating plant within 180 days <the application
47-1 within one year> after the date the application is filed. If the
47-2 commission does not approve or deny the application before this
47-3 deadline, any party may seek a writ of mandamus in a district court
47-4 of Travis County to compel the commission to make a decision on the
47-5 application.
47-6 SECTION 2.12. Section 62, Public Utility Regulatory Act
47-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
47-8 adding Subsection (c) to read as follows:
47-9 (c) The commission may revoke a certificate for a generating
47-10 plant under construction if the commission finds that construction
47-11 of the plant is no longer the lowest-cost option taking into
47-12 consideration the cost to complete the plant relative to other
47-13 alternatives and finds that it is no longer in the public interest.
47-14 The commission shall provide appropriate treatment for all prudent
47-15 expenditures associated with the planning, design, construction,
47-16 cancellation, and dismantlement of the plant.
47-17 SECTION 2.13. Section 43A, Public Utility Regulatory Act
47-18 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
47-19 as follows:
47-20 Sec. 43A. A local exchange company may make changes in its
47-21 tariffed rules, regulations, or practices that do not affect its
47-22 charges or rates by filing the proposed changes concurrently with
47-23 the office and <with> the commission at least 35 days prior to the
47-24 effective date of the changes. The commission may require such
47-25 notice to ratepayers as it considers appropriate. The commission
47-26 may on complaint by any affected person or on its own motion hold a
47-27 hearing, after reasonable notice, to determine the propriety of the
48-1 change. Pending the hearing and decision, the commission may
48-2 suspend the operation of the proposed changes for a period not to
48-3 exceed 120 days after the date on which the changes would otherwise
48-4 go into effect. The commission shall approve, deny, or modify the
48-5 proposed changes before expiration of the suspension period. In
48-6 any proceeding under this section, the burden of proving that the
48-7 requested relief is in the public interest and complies with this
48-8 Act shall be borne by the local exchange company.
48-9 SECTION 2.14. Subsection (b), Section 43B, Public Utility
48-10 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
48-11 amended to read as follows:
48-12 (b) At least 60 days before the date of the change, the
48-13 local exchange company shall file concurrently with the commission
48-14 and the office a statement of intent to change rates containing:
48-15 (1) a copy of the notice required by Subsection (a) of
48-16 this section;
48-17 (2) the number of access lines the company has in
48-18 service in this state;
48-19 (3) the date of the most recent commission order
48-20 setting rates of the company;
48-21 (4) the increase in total gross annual local revenues
48-22 that will be produced by the proposed rates;
48-23 (5) the increase in total gross annual local revenues
48-24 that will be produced by the proposed rates together with any local
48-25 rate changes which went into effect during the 12 months preceding
48-26 the proposed effective date of the requested rate change and any
48-27 other proposed local rate changes then pending before the
49-1 commission;
49-2 (6) the increase in rates for each service category;
49-3 and
49-4 (7) other information the commission by rule requires.
49-5 SECTION 2.15. Sections 63, 64, and 65, Public Utility
49-6 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
49-7 amended to read as follows:
49-8 Sec. 63. No public utility may sell, acquire, lease, or rent
49-9 any plant as an operating unit or system in this state for a total
49-10 consideration in excess of $100,000 or merge or consolidate with
49-11 another public utility operating in this state unless the public
49-12 utility reports such transaction to the commission and the office
49-13 within a reasonable time. All transactions involving the sale of
49-14 50 percent or more of the stock of a public utility shall also be
49-15 reported to the commission and the office within a reasonable time.
49-16 On the filing of a report with the commission, the commission shall
49-17 investigate the same with or without public hearing, to determine
49-18 whether the action is consistent with the public interest. In
49-19 reaching its determination, the commission shall take into
49-20 consideration the reasonable value of the property, facilities, or
49-21 securities to be acquired, disposed of, merged or consolidated. If
49-22 the commission finds that such transactions are not in the public
49-23 interest, the commission shall take the effect of the transaction
49-24 into consideration in the rate-making proceedings and disallow the
49-25 effect of such transaction if it will unreasonably affect rates or
49-26 service. The provisions of this section shall not be construed as
49-27 being applicable to the purchase of units of property for
50-1 replacement or to the addition to the facilities of the public
50-2 utility by construction.
50-3 Sec. 64. No public utility may purchase voting stock in
50-4 another public utility doing business in Texas, unless the utility
50-5 reports such purchase to the commission and the office.
50-6 Sec. 65. No public utility may loan money, stocks, bonds,
50-7 notes, or other evidences of indebtedness to any corporation or
50-8 person owning or holding directly or indirectly any stock of the
50-9 public utility unless the public utility reports the transaction to
50-10 the commission and the office within a reasonable time.
50-11 SECTION 2.16. Chapter 591, Acts of the 72nd Legislature,
50-12 Regular Session, 1991 (Article 6252-13f, Vernon's Texas Civil
50-13 Statutes), is amended by adding Section 4A to read as follows:
50-14 Sec. 4A. UTILITY DIVISION. (a) The office shall establish
50-15 a utility division to perform the contested case hearings for the
50-16 Public Utility Commission of Texas as prescribed by the Public
50-17 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
50-18 Statutes) and its subsequent amendments and other applicable law.
50-19 (b) The utility division shall conduct hearings relating to
50-20 contested cases before the commission, other than a hearing
50-21 conducted by one or more commissioners. The commission by rule may
50-22 delegate the responsibility to hear any other matter before the
50-23 commission if consistent with the duties and responsibilities of
50-24 the division.
50-25 (c) Only an administrative law judge in the utility division
50-26 may conduct a hearing on behalf of the commission. An
50-27 administrative law judge in the utility division may conduct
51-1 hearings for other state agencies as time allows. The office may
51-2 transfer an administrative law judge into the division on a
51-3 temporary or permanent basis and may contract with qualified
51-4 individuals to serve as temporary administrative law judges as
51-5 necessary.
51-6 (d) To be eligible to preside at a hearing, an
51-7 administrative law judge, regardless of temporary or permanent
51-8 status, must be licensed to practice law in this state and have not
51-9 less than five years of general experience or three years of
51-10 experience in utility regulatory law.
51-11 (e) At the time the office receives jurisdiction of a
51-12 proceeding, the commission shall provide to the administrative law
51-13 judge a list of issues or areas that must be addressed. In
51-14 addition, the commission may identify and provide to the
51-15 administrative law judge at any time additional issues or areas
51-16 that must be addressed.
51-17 (f) The office and the commission shall jointly adopt rules
51-18 providing for certification to the commission of an issue that
51-19 involves an ultimate finding of compliance with or satisfaction of
51-20 a statutory standard the determination of which is committed to the
51-21 discretion or judgment of the commission by law. The rules must
51-22 address, at a minimum, the issues that are appropriate for
51-23 certification and the procedure to be used in certifying the issue.
51-24 Each agency shall publish the jointly adopted rules.
51-25 (g) Notwithstanding Section 13(j), Administrative Procedure
51-26 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
51-27 Statutes), and its subsequent amendments, the commission may change
52-1 a finding of fact or conclusion of law made by the administrative
52-2 law judge or vacate or modify an order issued by the administrative
52-3 law judge only if the commission:
52-4 (1) determines that the administrative law judge:
52-5 (A) did not properly apply or interpret
52-6 applicable law, agency rules or policies, or prior administrative
52-7 decisions; or
52-8 (B) issued a finding of fact that is not
52-9 supported by a preponderance of the evidence; and
52-10 (2) states in writing the specific reason and legal
52-11 basis for its determination under Subdivision (1) of this
52-12 subsection.
52-13 (h) An administrative law judge, on the judge's own motion
52-14 or on motion of a party and after notice and an opportunity for a
52-15 hearing, may impose appropriate sanctions as provided by Subsection
52-16 (i) of this section against a party or its representative for:
52-17 (1) filing a motion or pleading that is groundless and
52-18 brought:
52-19 (A) in bad faith;
52-20 (B) for the purpose of harassment; or
52-21 (C) for any other improper purpose, such as to
52-22 cause unnecessary delay or needless increase in the cost of the
52-23 proceeding;
52-24 (2) abuse of the discovery process in seeking, making,
52-25 or resisting discovery; or
52-26 (3) failure to obey an order of the administrative law
52-27 judge or the commission.
53-1 (i) A sanction imposed under Subsection (h) of this section
53-2 may include, as appropriate and justified, issuance of an order:
53-3 (1) disallowing further discovery of any kind or of a
53-4 particular kind by the offending party;
53-5 (2) charging all or any part of the expenses of
53-6 discovery against the offending party or its representative;
53-7 (3) holding that designated facts be deemed admitted
53-8 for purposes of the proceeding;
53-9 (4) refusing to allow the offending party to support
53-10 or oppose a designated claim or defense or prohibiting the party
53-11 from introducing designated matters in evidence;
53-12 (5) disallowing in whole or in part requests for
53-13 relief by the offending party and excluding evidence in support of
53-14 such requests;
53-15 (6) punishing the offending party or its
53-16 representative for contempt to the same extent as a district court;
53-17 (7) requiring the offending party or its
53-18 representative to pay, at the time ordered by the administrative
53-19 law judge, the reasonable expenses, including attorney fees,
53-20 incurred by other parties because of the sanctionable behavior; and
53-21 (8) striking pleadings or testimony, or both, in whole
53-22 or in part, or staying further proceedings until the order is
53-23 obeyed.
53-24 SECTION 2.17. (a) Section 13.09, State Purchasing and
53-25 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
53-26 is amended to read as follows:
53-27 Sec. 13.09. APPLICATION. The state agencies subject to this
54-1 article are:
54-2 (1) the Texas Department of Mental Health and Mental
54-3 Retardation;
54-4 (2) the Texas Department of Human Services;
54-5 (3) the Texas Department of Criminal Justice;
54-6 (4) the Department of Agriculture;
54-7 (5) the Central Education Agency;
54-8 (6) the Texas Higher Education Coordinating Board;
54-9 (7) the State Department of Highways and Public
54-10 Transportation; <and>
54-11 (8) the commission;
54-12 (9) the Public Utility Commission of Texas; and
54-13 (10) the Office of Public Utility Counsel.
54-14 (b) This section takes effect September 1, 1995.
54-15 SECTION 2.18. (a) A task force is established to administer
54-16 the transfer of the hearings division from the Public Utility
54-17 Commission of Texas to the State Office of Administrative Hearings
54-18 and the transfer of personnel from the commission to the Office of
54-19 Public Utility Counsel. The task force is composed of:
54-20 (1) the governor or the governor's designee;
54-21 (2) the members of the Legislative Budget Board or the
54-22 members' designees;
54-23 (3) the chairman of the Public Utility Commission of
54-24 Texas;
54-25 (4) the public utility counsel; and
54-26 (5) the chief administrative law judge of the State
54-27 Office of Administrative Hearings.
55-1 (b) The governor or the governor's designee is the presiding
55-2 officer of the task force.
55-3 (c) The task force shall:
55-4 (1) determine the personnel, equipment, data,
55-5 facilities, and other items that will be transferred under this Act
55-6 and the schedule for the transfers; and
55-7 (2) mediate and resolve disputes between the
55-8 respective agencies relating to a transfer.
55-9 (d) After the transfers have been completed, the task force
55-10 shall prepare a written report detailing the specifics of the
55-11 transfers and shall submit the report to the governor and the
55-12 legislature.
55-13 (e) In determining a transfer under this Act, the task force
55-14 shall ensure that the transfer does not adversely affect a
55-15 proceeding before the Public Utility Commission of Texas or the
55-16 rights of the parties to the proceeding.
55-17 SECTION 2.19. (a) On September 1, 1993, all personnel,
55-18 including hearings examiners and administrative law judges,
55-19 equipment, data, facilities, and other items of the hearings
55-20 division of the Public Utility Commission of Texas, other than the
55-21 personnel, equipment, data, facilities, and other items of the
55-22 central records office, are transferred to the utility division of
55-23 the State Office of Administrative Hearings. Until September 1,
55-24 1994, an employee transferred to the utility division may be
55-25 terminated or subject to salary reduction only for cause and only
55-26 in relation to poor performance or unacceptable conduct. A
55-27 hearings examiner transferred to the State Office of Administrative
56-1 Hearings becomes an administrative law judge on the date of
56-2 transfer.
56-3 (b) A hearings examiner or administrative law judge
56-4 transferred from the Public Utility Commission of Texas to the
56-5 State Office of Administrative Hearings shall continue to hear any
56-6 case assigned to the person as if the transfer had not occurred.
56-7 (c) The changes in law made by this article that relate to
56-8 the powers and duties of the general counsel and Public Utility
56-9 Commission of Texas staff and to the procedures governing a hearing
56-10 before the utility division of the State Office of Administrative
56-11 Hearings apply only to a case that is filed on or after September
56-12 1, 1993. For cases filed before September 1, 1993, the general
56-13 counsel and commission staff shall continue to perform the duties
56-14 prescribed by the provisions amended by this article as those
56-15 duties existed on August 31, 1993. In addition, the procedures
56-16 prescribed by the provisions amended by this article shall continue
56-17 to be used in a hearing, as those procedures existed on August 31,
56-18 1993. The former law is continued in effect for those purposes.
56-19 (d) The Public Utility Commission of Texas by rule shall
56-20 adopt a statewide integrated resource planning process as required
56-21 by Section 19, Public Utility Regulatory Act (Article 1446c,
56-22 Vernon's Texas Civil Statutes), as added by this article, not later
56-23 than September 1, 1994.
56-24 (e) The changes in law made by this article to Subsection
56-25 (d), Section 52, and Section 54, Public Utility Regulatory Act
56-26 (Article 1446c, Vernon's Texas Civil Statutes), take effect
56-27 September 1, 1994, and apply only to an application for a
57-1 certificate of convenience and necessity filed on or after that
57-2 date, except that, in the case of any utility for which the
57-3 commission has not yet approved an individual integrated resource
57-4 plan as of September 1, 1994, applications for certificates of
57-5 convenience and necessity shall be governed by the law in effect
57-6 prior to the effective date of this Act until the commission
57-7 approves an integrated resource plan for that utility.
57-8 (f) Section 2.18 of this article takes effect immediately.
57-9 ARTICLE 3
57-10 SECTION 3.01. (a) Article III, Public Utility Regulatory
57-11 Act (Article 1446c, Vernon's Texas Civil Statutes), is amended by
57-12 adding Section 16A to read as follows:
57-13 Sec. 16A. (a) The commission by rule shall adopt procedures
57-14 governing the use of settlements to resolve contested cases.
57-15 (b) The rules shall ensure that:
57-16 (1) each party retains the right to:
57-17 (A) have a full hearing before the commission on
57-18 issues that remain in dispute; and
57-19 (B) judicial review of issues that remain in
57-20 dispute;
57-21 (2) an issue of fact raised by a nonsettling party
57-22 cannot be waived by a settlement or stipulation of the other
57-23 parties; and
57-24 (3) the nonsettling party may use the issue of fact
57-25 raised by that party as the basis for judicial review.
57-26 (b) This section applies only to a proceeding for which a
57-27 final order has not been issued before the effective date of this
58-1 Act. On or after the effective date of this Act, the Public
58-2 Utility Commission of Texas may not approve a settlement unless the
58-3 settlement has been reached in accordance with rules adopted under
58-4 Section 16A, Public Utility Regulatory Act (Article 1446c, Vernon's
58-5 Texas Civil Statutes), as added by this Act, and its subsequent
58-6 amendments.
58-7 SECTION 3.02. Section 30, Public Utility Regulatory Act
58-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
58-9 as follows:
58-10 Sec. 30. The regulatory authority may require an annual
58-11 reporting from each utility company of all its expenditures for
58-12 business gifts and entertainment, and institutional,
58-13 consumption-inducing and other advertising or public relations
58-14 expenses. The regulatory authority shall not allow as costs or
58-15 expenses for rate-making purposes any of these expenditures which
58-16 the regulatory authority determines not to be in the public
58-17 interest. Charitable or civic contributions and the <The> cost of
58-18 legislative-advocacy expenses shall not in any case be allowed as
58-19 costs or expenses for rate-making purposes. Reasonable costs of
58-20 participating in a proceeding under this Act <charitable or civic
58-21 contributions> may be allowed not to exceed the amount approved by
58-22 the regulatory authority.
58-23 SECTION 3.03. Article VI, Public Utility Regulatory Act
58-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
58-25 amending Section 41 and adding Section 41C to read as follows:
58-26 Sec. 41. The components of invested capital and net income
58-27 shall be determined according to the following rules:
59-1 (a) Invested Capital. Utility rates shall be based
59-2 upon the original cost of property used by and useful to the public
59-3 utility in providing service including construction work in
59-4 progress at cost as recorded on the books of the utility. The cost
59-5 of local exchange company pay telephone property, as that term is
59-6 defined by Section 41C of this Act, may not be included in the rate
59-7 base, except as provided by Section 41C of this Act. The inclusion
59-8 of construction work in progress is an exceptional form of rate
59-9 relief to be granted only upon the demonstration by the utility
59-10 that such inclusion is necessary to the financial integrity of the
59-11 utility. Construction work in progress shall not be included in
59-12 the rate base for major projects under construction to the extent
59-13 that such projects have been inefficiently or imprudently planned
59-14 or managed. Original cost shall be the actual money cost, or the
59-15 actual money value of any consideration paid other than money, of
59-16 the property at the time it shall have been dedicated to public
59-17 use, whether by the utility which is the present owner or by a
59-18 predecessor, less depreciation.
59-19 (b) Separations and Allocations. Costs of facilities,
59-20 revenues, expenses, taxes, and reserves shall be separated or
59-21 allocated as prescribed by the regulatory authority.
59-22 (c) Net Income. By "net income" is meant the total
59-23 revenues of the public utility less all reasonable and necessary
59-24 expenses as determined by the regulatory authority. The regulatory
59-25 authority shall determine expenses and revenues in a manner
59-26 consistent with the following:
59-27 (1) Transactions with Affiliated Interests.
60-1 Payment to affiliated interests for costs of any services, or any
60-2 property, right or thing, or for interest expense shall not be
60-3 allowed either as capital cost or as expense except to the extent
60-4 that the regulatory authority shall find such payment to be
60-5 reasonable and necessary for each item or class of items as
60-6 determined by the commission. Any such finding shall include
60-7 specific findings of the reasonableness and necessity of each item
60-8 or class of items allowed and a finding that the price to the
60-9 utility is no higher than prices charged by the supplying affiliate
60-10 to its other affiliates or divisions for the same item or class of
60-11 items, or to unaffiliated persons or corporations. The price paid
60-12 by gas utilities to affiliated interests for natural gas from Outer
60-13 Continental Shelf lands shall be subject to a rebuttable
60-14 presumption that such price is reasonable if the price paid does
60-15 not exceed the price permitted by federal regulation if such gas is
60-16 regulated by any federal agency or if not regulated by a federal
60-17 agency does not exceed the price paid by nonaffiliated parties for
60-18 natural gas from Outer Continental Shelf lands. The burden of
60-19 establishing that such a price paid is not reasonable shall be on
60-20 any party challenging the reasonableness of such price.
60-21 (2) Income Taxes. If the public utility is a
60-22 member of an affiliated group that is eligible to file a
60-23 consolidated income tax return, and if it is advantageous to the
60-24 public utility to do so, income taxes shall be computed as though a
60-25 consolidated return had been so filed and the utility had realized
60-26 its fair share of the savings resulting from the consolidated
60-27 return, unless it is shown to the satisfaction of the regulatory
61-1 authority that it was reasonable to choose not to consolidate
61-2 returns. The amounts of income taxes saved by a consolidated group
61-3 of which a public utility is a member by reason of the elimination
61-4 in the consolidated return of the intercompany profit on purchases
61-5 by the public utility from an affiliate shall be applied to reduce
61-6 the cost of the property or services so purchased. The investment
61-7 tax credit allowed against federal income taxes, to the extent
61-8 retained by the utility, shall be applied as a reduction in the
61-9 rate based contribution of the assets to which such credit applies,
61-10 to the extent and at such rate as allowed by the Internal Revenue
61-11 Code.
61-12 (3) Expenses Disallowed. The regulatory
61-13 authority shall not consider for ratemaking purposes the following
61-14 expenses:
61-15 (A) legislative advocacy expenses, whether
61-16 made directly or indirectly, including but not limited to
61-17 legislative advocacy expenses included in trade association dues;
61-18 (B) payments, except those made under an
61-19 insurance or risk-sharing arrangement executed before the date of
61-20 loss, made to cover costs of an accident, equipment failure, or
61-21 negligence at a utility facility owned by a person or governmental
61-22 body not selling power inside the State of Texas;
61-23 (C) Costs of processing a refund or credit
61-24 under Subsection (e) of Section 43 of this Act; <or>
61-25 (D) charitable or civic contributions; or
61-26 (E) any expenditure found by the
61-27 regulatory authority to be unreasonable, unnecessary, or not in the
62-1 public interest, including but not limited to executive salaries,
62-2 advertising expenses, legal expenses, and civil or administrative
62-3 penalties or fines.
62-4 The regulatory authority may promulgate reasonable rules and
62-5 regulations with respect to the allowance or disallowance of any
62-6 expenses for ratemaking purposes. The commission shall adopt
62-7 reasonable rules with respect to the allowance or disallowance of
62-8 costs of participating in a proceeding under this Act.
62-9 Sec. 41C. (a) The commission shall adopt rules allowing
62-10 providers of pay telephone service to designate certain pay
62-11 telephones as public interest pay telephones. The service of these
62-12 telephones constitutes public interest pay telephone service if the
62-13 utility demonstrates that the pay telephone will not recover its
62-14 cost because the pay telephone is located in:
62-15 (1) a rural or remote area where the volume of traffic
62-16 at the pay telephone is not sufficient to cover the cost of
62-17 providing the service; or
62-18 (2) an area where the expense associated with the
62-19 provision of the pay telephone service is significant due to theft,
62-20 vandalism, or other similar problems such that the volume of
62-21 traffic at the pay telephone is not sufficient to cover the costs
62-22 of providing the service.
62-23 (b) A utility may not include in the company's rate base the
62-24 costs of local exchange company pay telephone property or include
62-25 in the company's revenue and expense calculations the expense of
62-26 providing local exchange company pay telephone service to the
62-27 public.
63-1 (c) A utility may include in the company's cost of service
63-2 the expense of public interest pay telephone property and the
63-3 expense of providing public interest pay telephone service. The
63-4 utility has the burden of proof in establishing that the pay
63-5 telephone service constitutes public interest pay telephone
63-6 service. In addition, it is not sufficient for the utility to
63-7 merely show that the pay telephone is not expected to recover its
63-8 costs.
63-9 (d) The commission shall adopt rules to provide that the
63-10 total value of a contract is considered in determining whether a
63-11 pay telephone included in a contract for the provision of
63-12 telecommunications is a public interest pay telephone.
63-13 (e) The commission shall adopt rules to implement this
63-14 section.
63-15 (f) In this section:
63-16 (1) "Local exchange company pay telephone property"
63-17 means all property the local exchange company requires to provide
63-18 pay telephone service to the public, including the cost of pay
63-19 telephone hardware, pay telephone enclosures, pay telephone
63-20 internal software, lines costs, and switch costs. The term does
63-21 not include property the local exchange company requires to provide
63-22 public interest pay telephone service.
63-23 (2) "Local exchange company pay telephone service"
63-24 means each act done, rendered, or performed, each thing furnished
63-25 or supplied, and each facility used, furnished, or supplied by a
63-26 public utility to provide to the public pay telephone service. The
63-27 term does not include an act, thing, or facility used to provide
64-1 public interest pay telephone service.
64-2 (3) "Public interest pay telephone property" means all
64-3 property the local exchange company requires to provide pay
64-4 telephone service to the public from a pay telephone designated in
64-5 accordance with Subsection (a) of this section, including the cost
64-6 of pay telephone hardware, pay telephone enclosures, pay telephone
64-7 internal software, lines costs, and switch costs.
64-8 (4) "Public interest pay telephone service" means each
64-9 act done, rendered, or performed, each thing furnished or supplied,
64-10 and each facility used, furnished, or supplied by a public utility
64-11 to provide to the public pay telephone service from a pay telephone
64-12 designated in accordance with Subsection (a) of this section.
64-13 SECTION 3.04. Section 42, Public Utility Regulatory Act
64-14 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
64-15 as follows:
64-16 Sec. 42. (a) Whenever the regulatory authority, after
64-17 reasonable notice and hearing, on its own motion or on complaint by
64-18 any affected person, finds that the existing rates of any public
64-19 utility for any service are unreasonable or in any way in violation
64-20 of any provision of law, the regulatory authority shall determine
64-21 the just and reasonable rates, including maximum or minimum rates,
64-22 to be thereafter observed and in force, and shall fix the same by
64-23 order to be served on the public utility; and such rates shall
64-24 constitute the legal rates of the public utility until changed as
64-25 provided in this Act. Whenever a public utility does not itself
64-26 produce or generate that which it distributes, transmits, or
64-27 furnishes to the public for compensation, but obtains the same from
65-1 another source, the regulatory authority shall have the power and
65-2 authority to investigate the cost of such production or generation
65-3 in any investigation of the reasonableness of the rates of such
65-4 public utility.
65-5 (b) Not later than the 120th day after the regulatory
65-6 authority notifies the utility that the regulatory authority has
65-7 decided to proceed with an inquiry under this section relating to
65-8 the rates of the utility, the utility shall file a rate-filing
65-9 package concurrently with the regulatory authority and the office.
65-10 The regulatory authority shall make a final determination
65-11 concerning the matter not later than the 185th day after the date
65-12 on which the utility files the rate-filing package. However, the
65-13 185-day period is extended two days for each one day of actual
65-14 hearings on the merits of the case that exceeds 15 days.
65-15 (c) At any time after an initial complaint is filed under
65-16 this section, the regulatory authority may issue an interim order
65-17 fixing temporary rates for the utility that will continue until a
65-18 final determination on the matter is made. On issuance of a final
65-19 order, the regulatory authority may require the utility to refund
65-20 to customers or to credit against future bills all sums collected
65-21 during the period in which those temporary rates were in effect
65-22 that are in excess of the rate finally ordered, plus interest at
65-23 the current rate as finally determined by the commission or, if the
65-24 amounts collected during the period in which the temporary rates
65-25 were in effect are less than the amounts that would have been
65-26 collected under the rate finally ordered, the regulatory authority
65-27 shall authorize the utility to surcharge bills to recover the
66-1 difference between those amounts, plus interest on the amount of
66-2 the difference at the current rate as finally determined by the
66-3 commission.
66-4 (d) If the 185-day period has been extended as provided by
66-5 Subsection (b) of this section and the regulatory authority has not
66-6 issued a final order or fixed temporary rates on or before the
66-7 185th day, the rates charged by the utility on that 185th day
66-8 automatically become temporary rates. On issuance of a final
66-9 order, the regulatory authority shall require the utility to refund
66-10 to customers or to credit against future bills all sums collected
66-11 during the period in which those temporary rates were in effect
66-12 that are in excess of the rate finally ordered, plus interest at
66-13 the current rate as finally determined by the commission or, if the
66-14 amounts collected during the period in which the temporary rates
66-15 were in effect are less than the amounts that would have been
66-16 collected under the rate finally ordered, the regulatory authority
66-17 shall authorize the utility to surcharge bills to recover the
66-18 difference between those amounts, plus interest on the amount of
66-19 the difference at the current rate as finally determined by the
66-20 commission.
66-21 SECTION 3.05. Section 71A, Public Utility Regulatory Act
66-22 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
66-23 as follows:
66-24 Sec. 71A. (a) The commission may impose an administrative
66-25 penalty against a person regulated under this Act who violates this
66-26 Act or a rule or order adopted under this Act.
66-27 (b) The penalty for a violation may be in an amount not to
67-1 exceed $5,000. Each day a violation continues or occurs is a
67-2 separate violation for purposes of imposing a penalty.
67-3 (c) The amount of the penalty shall be based on:
67-4 (1) the seriousness of the violation, including the
67-5 nature, circumstances, extent, and gravity of any prohibited acts,
67-6 and the hazard or potential hazard created to the health, safety,
67-7 or economic welfare of the public;
67-8 (2) the economic harm to property or the environment
67-9 caused by the violation;
67-10 (3) the history of previous violations;
67-11 (4) the amount necessary to deter future violations;
67-12 (5) efforts to correct the violation; and
67-13 (6) any other matter that justice may require.
67-14 (d) If the executive director determines that a violation
67-15 has occurred, the executive director may issue to the commission a
67-16 report that states the facts on which the determination is based
67-17 and the director's recommendation on the imposition of a penalty,
67-18 including a recommendation on the amount of the penalty.
67-19 (e) Within 14 days after the date the report is issued, the
67-20 executive director shall give written notice of the report to the
67-21 person. The notice may be given by certified mail. The notice
67-22 must include a brief summary of the alleged violation and a
67-23 statement of the amount of the recommended penalty and must inform
67-24 the person that the person has a right to a hearing on the
67-25 occurrence of the violation, the amount of the penalty, or both the
67-26 occurrence of the violation and the amount of the penalty.
67-27 (f) Within 20 days after the date the person receives the
68-1 notice, the person in writing may accept the determination and
68-2 recommended penalty of the executive director or may make a written
68-3 request for a hearing on the occurrence of the violation, the
68-4 amount of the penalty, or both the occurrence of the violation and
68-5 the amount of the penalty.
68-6 (g) If the person accepts the determination and recommended
68-7 penalty of the executive director, the commission by order shall
68-8 approve the determination and impose the recommended penalty.
68-9 (h) If the person requests a hearing or fails to respond
68-10 timely to the notice, the executive director shall set a hearing
68-11 and give notice of the hearing to the person. The hearing shall be
68-12 held by an administrative law judge of the State Office of
68-13 Administrative Hearings. The administrative law judge shall make
68-14 findings of fact and conclusions of law and promptly issue to the
68-15 commission a proposal for a decision about the occurrence of the
68-16 violation and the amount of a proposed penalty. Based on the
68-17 findings of fact, conclusions of law, and proposal for a decision,
68-18 the commission by order may find that a violation has occurred and
68-19 impose a penalty or may find that no violation occurred. Before
68-20 any penalty may be assessed hereunder, the commission shall
68-21 establish by clear and convincing evidence that a violation has
68-22 occurred.
68-23 (i) The notice of the commission's order given to the person
68-24 under the Administrative Procedure and Texas Register Act (Article
68-25 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
68-26 amendments must include a statement of the right of the person to
68-27 judicial review of the order.
69-1 (j) Within 30 days after the date the commission's order is
69-2 final as provided by Subsection (c), Section 16, Administrative
69-3 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
69-4 Civil Statutes), and its subsequent amendments, the person shall:
69-5 (1) pay the amount of the penalty;
69-6 (2) pay the amount of the penalty and file a petition
69-7 for judicial review contesting the occurrence of the violation, the
69-8 amount of the penalty, or both the occurrence of the violation and
69-9 the amount of the penalty; or
69-10 (3) without paying the amount of the penalty, file a
69-11 petition for judicial review contesting the occurrence of the
69-12 violation, the amount of the penalty, or both the occurrence of the
69-13 violation and the amount of the penalty.
69-14 (k) Within the 30-day period, a person who acts under
69-15 Subdivision (3) of Subsection (j) of this section may:
69-16 (1) stay enforcement of the penalty by:
69-17 (A) paying the amount of the penalty to the
69-18 court for placement in an escrow account; or
69-19 (B) giving to the court a supersedeas bond that
69-20 is approved by the court for the amount of the penalty and that is
69-21 effective until all judicial review of the commission's order is
69-22 final; or
69-23 (2) request the court to stay enforcement of the
69-24 penalty by:
69-25 (A) filing with the court a sworn affidavit of
69-26 the person stating that the person is financially unable to pay the
69-27 amount of the penalty and is financially unable to give the
70-1 supersedeas bond; and
70-2 (B) giving a copy of the affidavit to the
70-3 executive director by certified mail.
70-4 (l) The executive director, on receipt of a copy of an
70-5 affidavit under Subdivision (2) of Subsection (k) of this section,
70-6 may file with the court, within five days after the date the copy
70-7 is received, a contest to the affidavit. The court shall hold a
70-8 hearing on the facts alleged in the affidavit as soon as
70-9 practicable and shall stay the enforcement of the penalty on
70-10 finding that the alleged facts are true. The person who files an
70-11 affidavit has the burden of proving that the person is financially
70-12 unable to pay the amount of the penalty and to give a supersedeas
70-13 bond.
70-14 (m) If the person does not pay the amount of the penalty and
70-15 the enforcement of the penalty is not stayed, the executive
70-16 director may refer the matter to the attorney general for
70-17 collection of the amount of the penalty.
70-18 (n) Judicial review of the order of the commission:
70-19 (1) is instituted by filing a petition as provided by
70-20 Section 19, Administrative Procedure and Texas Register Act
70-21 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
70-22 subsequent amendments; and
70-23 (2) is under the substantial evidence rule.
70-24 (o) If the court sustains the occurrence of the violation,
70-25 the court may uphold or reduce the amount of the penalty and order
70-26 the person to pay the full or reduced amount of the penalty. If
70-27 the court does not sustain the occurrence of the violation, the
71-1 court shall order that no penalty is owed.
71-2 (p) When the judgment of the court becomes final, the court
71-3 shall proceed under this subsection. If the person paid the amount
71-4 of the penalty and if that amount is reduced or is not upheld by
71-5 the court, the court shall order that the appropriate amount plus
71-6 accrued interest be remitted to the person. The rate of the
71-7 interest is the rate charged on loans to depository institutions by
71-8 the New York Federal Reserve Bank, and the interest shall be paid
71-9 for the period beginning on the date the penalty was paid and
71-10 ending on the date the penalty is remitted. If the person gave a
71-11 supersedeas bond and if the amount of the penalty is not upheld by
71-12 the court, the court shall order the release of the bond. If the
71-13 person gave a supersedeas bond and if the amount of the penalty is
71-14 reduced, the court shall order the release of the bond after the
71-15 person pays the amount.
71-16 (q) A penalty collected under this section shall be remitted
71-17 to the comptroller for deposit in the general revenue fund.
71-18 (r) All proceedings under this section are subject to the
71-19 Administrative Procedure and Texas Register Act (Article 6252-13a,
71-20 Vernon's Texas Civil Statutes) and its subsequent amendments <At
71-21 the request of the commission, the attorney general shall bring
71-22 suit for the appointment of a receiver to collect the assets and
71-23 carry on the business of a water or sewer utility that violates a
71-24 final order of the commission or allows any property owned or
71-25 controlled by it to be used in violation of a final order of the
71-26 commission.>
71-27 <(b) The court shall appoint a receiver if such appointment
72-1 is necessary to guarantee the collection of assessments, fees,
72-2 penalties, or interest, to guarantee continued service to the
72-3 customers of the utility, or to prevent continued or repeated
72-4 violation of the final order.>
72-5 <(c) The receiver shall execute a bond to assure the proper
72-6 performance of the receiver's duties in an amount to be set by the
72-7 court.>
72-8 <(d) After appointment and execution of bond the receiver
72-9 shall take possession of the assets of the utility specified by the
72-10 court. Until discharged by the court, the receiver shall perform
72-11 the duties that the court directs to preserve the assets and carry
72-12 on the business of the utility and shall strictly observe the final
72-13 order involved.>
72-14 <(e) Upon a showing of good cause by the utility, the court
72-15 may dissolve the receivership and order the assets and control of
72-16 the business returned to the utility>.
72-17 SECTION 3.06. Section 116, Public Utility Regulatory Act
72-18 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
72-19 as follows:
72-20 Sec. 116. <(a)> A person who owns or operates an ADAD and
72-21 who operates the ADAD without a valid permit or with an expired
72-22 permit or who operates the ADAD in violation of this article or a
72-23 commission rule or order is subject to an administrative penalty in
72-24 accordance with Section 71A of this Act <of not more than $1,000
72-25 for each day or portion of a day during which the ADAD was
72-26 operating in violation of this section.>
72-27 <(b) The administrative penalty authorized by this section
73-1 is civil in nature and is cumulative of any other penalty provided
73-2 by law.>
73-3 <(c) The commission by rule shall prescribe the procedures
73-4 for assessing an administrative penalty under this section. The
73-5 procedures shall require proper notice and hearing in accordance
73-6 with the Administrative Procedure and Texas Register Act (Article
73-7 6252-13a, Vernon's Texas Civil Statutes).>
73-8 <(d) A person may appeal the final order of the commission
73-9 under the Administrative Procedure and Texas Register Act (Article
73-10 6252-13a, Vernon's Texas Civil Statutes), using the substantial
73-11 evidence rule on appeal.>
73-12 <(e) The proceeds of administrative penalties collected
73-13 under this section shall be deposited to the credit of the General
73-14 Revenue Fund>.
73-15 SECTION 3.07. Sections 78 and 80, Public Utility Regulatory
73-16 Act (Article 1446c, Vernon's Texas Civil Statutes), are amended to
73-17 read as follows:
73-18 Sec. 78. An assessment is hereby imposed upon each public
73-19 utility within the commission's jurisdiction, including
73-20 interexchange telecommunications carriers, serving the ultimate
73-21 consumer equal to one-sixth of one percent of its gross receipts
73-22 from rates charged the ultimate consumers in Texas for the purpose
73-23 of defraying the costs and expenses incurred in the administration
73-24 of this Act. The legislature may <Thereafter the commission shall,
73-25 subject to the approval of the Legislature,> adjust this
73-26 assessment to provide a level of income sufficient to fund the
73-27 commission and the office of public utility counsel. <Any
74-1 interexchange telecommunications carrier found dominant as to any
74-2 service market under Section 100(b) or filing a petition under
74-3 Section 100(f) of this Act shall be required to reimburse the
74-4 Office of Public Utility Counsel for the costs of participation
74-5 before the commission on behalf of residential ratepayers in any of
74-6 the proceedings under Section 100 of this Act to the extent found
74-7 reasonable by the commission. Recovery of costs under this section
74-8 by the Office of Public Utility Counsel shall not exceed $175,000
74-9 per annum.> Nothing in this Act or any other provision of law
74-10 shall prohibit interexchange telecommunications carriers who do not
74-11 provide local exchange telephone service from collecting the fee
74-12 imposed under this Act as an additional item separately stated on
74-13 the customer bill as "Utility Gross Receipts Assessment."
74-14 Sec. 80. (a) All fees, penalties, and interest paid under
74-15 the provisions of Sections 78 and 79 of this article shall be
74-16 collected by the comptroller of public accounts and paid into the
74-17 general revenue fund. <The commission shall notify the comptroller
74-18 of public accounts of any adjustment of the assessment imposed in
74-19 Section 78 when made.>
74-20 (b) All money paid to the commission or to the Office of
74-21 Public Utility Counsel under this Act shall be deposited in the
74-22 state treasury.
74-23 SECTION 3.08. Subsection (c), Section 6, Chapter 1132, Acts
74-24 of the 70th Legislature, Regular Session, 1987 (Article 4413(55),
74-25 Vernon's Texas Civil Statutes), is amended to read as follows:
74-26 (c) Any order or ruling of the Public Utility Commission of
74-27 Texas entered pursuant to this Act shall be deemed to have been
75-1 entered or adopted under the Public Utility Regulatory Act and, for
75-2 purposes of enforcement, is subject to enforcement pursuant to
75-3 Article XI <Sections 71 through 77> of the Public Utility
75-4 Regulatory Act and its subsequent amendments.
75-5 SECTION 3.09. (a) This article takes effect September 1,
75-6 1993, and applies to a proceeding for which a final order has not
75-7 been issued before that date.
75-8 (b) The changes in Sections 71A and 116, Public Utility
75-9 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), and
75-10 to Subsection (c), Section 6, Chapter 1132, Acts of the 70th
75-11 Legislature, Regular Session, 1987 (Article 4413(55), Vernon's
75-12 Texas Civil Statutes), made by this article apply only to a
75-13 violation committed on or after the effective date of this article.
75-14 A violation committed before the effective date of this article is
75-15 governed by the law in effect when the violation occurred, and that
75-16 law is continued in effect for that purpose.
75-17 ARTICLE 4
75-18 SECTION 4.01. Subsections (a) and (h), Section 43B, Public
75-19 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
75-20 Statutes), are amended to read as follows:
75-21 (a) Except as otherwise provided by this section, a local
75-22 exchange company that <is a cooperative corporation or that> has
75-23 fewer than 5,000 access lines in service in this state may change
75-24 rates by publishing notice of the change at least 60 days before
75-25 the date of the change in the place and form as prescribed by the
75-26 commission. The notice must include:
75-27 (1) the reasons for the rate change;
76-1 (2) a description of the affected service;
76-2 (3) an explanation of the right of the subscriber to
76-3 petition the commission for a hearing on the rate change; and
76-4 (4) a list of rates that are affected by the proposed
76-5 rate change.
76-6 (h) The commission is granted all necessary power and
76-7 authority to prescribe and collect fees and assessments from local
76-8 exchange companies necessary to recover the commission's and the
76-9 Office of Public Utility Counsel's costs of activities carried out
76-10 and services provided under Subsection (i) of Section 43 and
76-11 Sections 43A, <and> 43B, and 43C of this Act.
76-12 SECTION 4.02. Article VI, Public Utility Regulatory Act
76-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
76-14 adding Section 43C to read as follows:
76-15 Sec. 43C. (a) A local exchange company that is a
76-16 cooperative corporation may vote to partially deregulate the
76-17 company by sending a ballot to each corporation member. The ballot
76-18 may be included in a bill or sent separately. The ballot shall
76-19 provide for voting for or against the proposition: "Authorizing
76-20 the partial deregulation of the (name of local exchange company)."
76-21 (b) The company may offer extended local calling services or
76-22 new services on an optional basis, restructure rates of existing
76-23 services, or make changes in its rates or tariffs if:
76-24 (1) a majority of the ballots returned to the company
76-25 not later than the 45th day after the date on which the ballots are
76-26 mailed favor deregulation; and
76-27 (2) the company:
77-1 (A) files concurrently with the commission and
77-2 the office a statement of intent, as prescribed by Subsection (c)
77-3 of this section, not later than the 61st day before the date on
77-4 which the proposed change will take effect;
77-5 (B) provides notice of the proposed change to
77-6 all customers and municipalities as prescribed by Subsection (d) of
77-7 this section; and
77-8 (C) files with the commission affidavits
77-9 verifying the provision of notice as prescribed by Subsection (e)
77-10 of this section.
77-11 (c) The statement of intent required by Paragraph (A) of
77-12 Subdivision (2) of Subsection (b) of this section must include:
77-13 (1) a copy of a resolution approving the proposed
77-14 change and authorizing the filing of the statement of intent signed
77-15 by a majority of the members of the local exchange telephone
77-16 company's board of directors;
77-17 (2) a description of the services affected by the
77-18 proposed change;
77-19 (3) a copy of the proposed tariff for the affected
77-20 service;
77-21 (4) a copy of the customer notice required by
77-22 Subdivision (2) of Subsection (b) of this section;
77-23 (5) the amount by which the company's total gross
77-24 annual revenues will increase or decrease as a result of the
77-25 change; and
77-26 (6) a statement explaining in detail the estimated
77-27 effect of the change on the utility's revenue by revenue class and
78-1 stating the classes and number of classes affected.
78-2 (d) The local exchange company shall provide to all affected
78-3 customers and parties, including municipalities, at least two
78-4 notices of the proposed change by bill insert or by individual
78-5 notice. The company shall provide the first notice not later than
78-6 the 61st day before the date on which the proposed change will take
78-7 effect. The company shall provide the last notice not later than
78-8 the 31st day before the date on which the proposed change will take
78-9 effect. Each notice prescribed by this subsection must include:
78-10 (1) a description of the services affected by the
78-11 proposed change;
78-12 (2) the effective date of the proposed change;
78-13 (3) an explanation of the customer's right to petition
78-14 the commission for a review under Subsection (f) of this section;
78-15 (4) an explanation of the customer's right to obtain a
78-16 copy of the proposed tariff from the company;
78-17 (5) the amount by which the company's total gross
78-18 annual revenues will increase or decrease as a result of the
78-19 proposed change; and
78-20 (6) a list of rates that are affected by the proposed
78-21 rate change.
78-22 (e) Not later than the 15th day before the date on which the
78-23 proposed change will take effect, the local exchange telephone
78-24 company shall file with the commission affidavits that verify that
78-25 the company provided each notice prescribed under Subsection (d) of
78-26 this section.
78-27 (f) The commission shall review a proposed change filed
79-1 under this section if:
79-2 (1) the commission receives, not later than the 30th
79-3 day after the date notice is provided under Subsection (d) of this
79-4 section, complaints relating to the proposed change:
79-5 (A) signed by at least five percent of the
79-6 affected local service customers; or
79-7 (B) from an affected intrastate access customer,
79-8 or group of affected intrastate access customers, that in the
79-9 preceding 12 months accounted for more than 10 percent of the
79-10 company's total intrastate access revenues; or
79-11 (2) the company does not comply with the procedural
79-12 requirements of this section.
79-13 (g) Notwithstanding any other provision of this section, the
79-14 commission may conduct a review in accordance with Section 42 of
79-15 this Act. On review, the commission may suspend the actions of the
79-16 local exchange telephone company during the pendency of review.
79-17 (h) A company that is partially deregulated under this
79-18 section may vote to reverse the deregulation by sending a ballot to
79-19 each corporation member. The ballot may be included in a bill or
79-20 sent separately. The ballot shall provide for voting for or
79-21 against the proposition: "Reversing the partial deregulation of
79-22 the (name of local exchange company)." The partial deregulation is
79-23 reversed if a majority of the ballots returned to the company not
79-24 later than the 45th day after the date on which the ballots are
79-25 mailed favor reversal.
79-26 (i) The commission by rule shall prescribe the voting
79-27 procedures a company is required to use under this section.
80-1 (j) This section does not:
80-2 (1) prohibit a local exchange telephone company from
80-3 filing for a new service or rate change under another applicable
80-4 section of this Act; or
80-5 (2) affect the application of other provisions of this
80-6 Act not directly related to rate-making or the authority of the
80-7 commission to require the company to file reports required under
80-8 this Act or under rules adopted by the commission.
80-9 SECTION 4.03. Section 45, Public Utility Regulatory Act
80-10 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
80-11 as follows:
80-12 Sec. 45. (a) No public utility may, as to rates or
80-13 services, make or grant any unreasonable preference or advantage to
80-14 any corporation or person within any classification, or subject any
80-15 corporation or person within any classification to any unreasonable
80-16 prejudice or disadvantage. No public utility may establish and
80-17 maintain any unreasonable differences as to rates of service either
80-18 as between localities or as between classes of service.
80-19 (b) A public utility may not impose a restriction, including
80-20 a geographic requirement per location or a minimum line
80-21 requirement, that will limit the availability of central office
80-22 based PBX-type services to any business, either individually or as
80-23 part of a sharing arrangement. A public utility may not
80-24 discriminate between individual businesses obtaining central office
80-25 based PBX-type services and businesses obtaining those services
80-26 through a sharing arrangement.
80-27 SECTION 4.04. Section 27, Public Utility Regulatory Act
81-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
81-2 adding Subsection (g) to read as follows:
81-3 (g) Dominant carriers shall submit to the commission, on an
81-4 annual basis, cost accounting information on all of the services
81-5 provided by the carrier in the State of Texas in an easily read
81-6 form that complies with generally accepted accounting principles.
81-7 The cost accounting information of each service provided by the
81-8 carrier shall be separated from the cost accounting information of
81-9 other services and shall indicate all of the costs attributable
81-10 directly or indirectly to each service. All costs for services
81-11 provided by the carrier in the State of Texas shall be fully
81-12 allocated in a manner as if each service was a stand alone
81-13 business. All information submitted to the commission shall be
81-14 available to the public. The commission is granted all necessary
81-15 power and authority under this Act to promulgate rules and
81-16 establish procedures for the purposes of enforcing and implementing
81-17 this section.
81-18 SECTION 4.05. Article VII, Public Utility Regulatory Act
81-19 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
81-20 adding Section 61A to read as follows:
81-21 Sec. 61A. (a) Within six months of the effective date of
81-22 this section, the commission shall adopt rules providing that
81-23 owners and operators of pay telephones:
81-24 (1) shall not impose any charge for local directory
81-25 assistance calls or calls made pursuant to Chapter 772, Health and
81-26 Safety Code; and
81-27 (2) shall, if other than a local exchange company, not
82-1 impose a total charge for a local call that is an amount greater
82-2 than the rate charged for a local call placed from a pay telephone
82-3 owned by a local exchange company at the same location.
82-4 (b)(1) The commission shall have the authority over private
82-5 pay telephone providers to investigate and prohibit the blocking of
82-6 access by consumers to interexchange carriers and other
82-7 telecommunications utilities for the completion of calls or for
82-8 access to the operator services of the local exchange carrier
82-9 serving the area where the private pay telephone is located. The
82-10 commission may grant a temporary waiver for blocking if the private
82-11 pay telephone provider demonstrates that unblocking could result in
82-12 fraudulent use.
82-13 (2) Except as provided under Subdivision (3) of this
82-14 subsection, the commission shall have all necessary authority over
82-15 private pay telephone providers and other telecommunications
82-16 utilities to order just and reasonable compensation for intrastate
82-17 dial-around calls if the commission finds such compensation to be
82-18 in the public interest.
82-19 (3) Any compensation provided under Subdivision (2) of
82-20 this subsection may not be paid until the private pay telephone
82-21 provider certifies that the pay telephone is unblocked. The
82-22 commission shall order compensation paid to a private pay telephone
82-23 provider under this section to be refunded in full if the
82-24 provider's pay telephone is found to be blocking access to a
82-25 telecommunications utility other than the presubscribed operator
82-26 services provider.
82-27 (4) This section applies notwithstanding Subsection
83-1 (c) of Section 18 of this Act.
83-2 ARTICLE 5
83-3 SECTION 5.01. Section 23, Public Utility Regulatory Act
83-4 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
83-5 as follows:
83-6 Sec. 23. (a) Any municipality regulating its public
83-7 utilities pursuant to this Act may <shall> require from those
83-8 utilities all necessary data to make a reasonable determination of
83-9 rate base, expenses, investment, and rate of return within the
83-10 municipal boundaries. The standards for such determination shall
83-11 be based on the procedures and requirements of this Act and said
83-12 municipality shall retain any and all personnel necessary to make
83-13 the determination of reasonable rates required under this Act.
83-14 (b) Not later than the 31st day before the date on which a
83-15 utility files a statement of intent under Subsection (a) of Section
83-16 43 of this Act, the utility shall provide to each municipality
83-17 having original jurisdiction notice of intent to file the
83-18 statement. Not later than the 30th day after a municipality
83-19 receives notice of intent to file a statement, the municipality may
83-20 request that the utility file with the municipality a statement of
83-21 intent in accordance with Subsection (a) of Section 43 of this Act.
83-22 If requested, the utility shall file the statement of intent with
83-23 the municipality at the same time the statement is filed with the
83-24 commission and the office.
83-25 SECTION 5.02. Subsection (a), Section 43, Public Utility
83-26 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
83-27 amended to read as follows:
84-1 (a) Except as provided by Subsection (b) of Section 23 of
84-2 this Act, no <No> utility may make changes in its rates except by
84-3 filing a statement of intent concurrently with the office and with
84-4 the regulatory authority having original jurisdiction at least 35
84-5 days prior to the effective date of the proposed change. The
84-6 statement of intent shall include proposed revisions of tariffs and
84-7 schedules and a statement specifying in detail each proposed
84-8 change, the effect the proposed change is expected to have on the
84-9 revenues of the company, the classes and numbers of utility
84-10 consumers affected, and such other information as may be required
84-11 by the regulatory authority's rules and regulations. A copy of the
84-12 statement of intent shall be mailed or delivered to the appropriate
84-13 officer of each affected municipality, and notice shall be given by
84-14 publication in conspicuous form and place of a notice to the public
84-15 of such proposed change once in each week for four successive weeks
84-16 prior to the effective date of the proposed change in a newspaper
84-17 having general circulation in each county containing territory
84-18 affected by the proposed change, and by mail to such other affected
84-19 persons as may be required by the regulatory authority's rules and
84-20 regulations. The regulatory authority may waive the publication of
84-21 notice requirement prescribed by this subsection in a proceeding
84-22 that involves a rate reduction for all affected ratepayers only.
84-23 The applicant shall give notice of the proposed rate change by mail
84-24 to all affected utility customers. The regulatory authority by
84-25 rule shall also define other proceedings for which the publication
84-26 of notice requirement prescribed by this subsection may be waived
84-27 on a showing of good cause, provided that no waiver may be granted
85-1 in any proceeding involving a rate increase to any class or
85-2 category of ratepayer.
85-3 SECTION 5.03. Subsection (g), Section 43, Public Utility
85-4 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
85-5 amended to read as follows:
85-6 (g)(1) A rate or tariff set by the commission shall not
85-7 authorize a utility to automatically adjust and pass through to its
85-8 customers changes in fuel or other costs of the utility.
85-9 (2)(A) Subdivision (1) of this subsection does not
85-10 prohibit the commission from reviewing and providing for
85-11 adjustments of a utility's fuel factor. The commission by rule
85-12 shall implement procedures that provide for the timely adjustment
85-13 of a utility's fuel factor, with or without a hearing. The
85-14 procedures shall provide that the findings required by Subdivision
85-15 (1) of Subsection (c) of Section 41 of this Act regarding fuel
85-16 transactions with affiliated interests are made in a fuel
85-17 reconciliation proceeding or in a rate case filed under Subsection
85-18 (a) of this section or under Section 42 of this Act. The
85-19 procedures shall provide an affected party notice and the
85-20 opportunity to request a hearing before the commission. However,
85-21 the commission may adjust a utility's fuel factor without a hearing
85-22 if the commission determines that a hearing is not necessary. If
85-23 the commission holds a hearing, the <Any revision of a utility's
85-24 billings to its customers to allow for the recovery of additional
85-25 fuel costs may be made only upon a public hearing and order of the
85-26 commission.>
85-27 <(B) The> commission may consider any evidence
86-1 that is appropriate and in the public interest at such hearing.
86-2 The commission shall render a timely decision approving,
86-3 disapproving, or modifying the adjustment to the utility's fuel
86-4 factor.
86-5 (B) The commission by rule shall provide for the
86-6 reconciliation of a utility's fuel costs on a timely basis.
86-7 (C) A proceeding under this subsection shall not
86-8 be considered a rate case under Section 43 of this Act.
86-9 (3)(A) <The commission may, after a hearing, grant
86-10 interim relief for fuel cost increases that are the result of
86-11 unusual and emergency circumstances or conditions.>
86-12 <(4)(A)> This subsection applies only to increases or
86-13 decreases in the cost of purchased electricity which have been:
86-14 (i) accepted by a federal regulatory
86-15 authority; or
86-16 (ii) approved after a hearing by the
86-17 Public Utility Commission of Texas.
86-18 (B) The Public Utility Commission of Texas may
86-19 utilize any appropriate method to provide for the adjustment of the
86-20 cost of purchased electricity upon such terms and conditions as the
86-21 commission may determine. Such purchased electricity costs may be
86-22 recovered concurrently with the effective date of the changed costs
86-23 to the purchasing utility or as soon thereafter as is reasonably
86-24 practical.
86-25 SECTION 5.04. Subsection (h), Section 43, Public Utility
86-26 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
86-27 amended to read as follows:
87-1 (h) The commission by rule may prescribe a schedule for
87-2 electric utilities to appear before the commission in a general
87-3 rate proceeding under this section. The schedule shall cover at
87-4 least a five-year period. The commission shall review and by rule
87-5 shall revise the schedule at least every five years. The rules
87-6 prescribing the schedule must:
87-7 (1) provide that the schedule applies only to
87-8 investor-owned electric utilities and to the electric operations of
87-9 river authorities;
87-10 (2) allow a utility to initiate a rate proceeding
87-11 before its scheduled time if:
87-12 (A) the utility is earning a return on equity,
87-13 computed over the immediately preceding 12-month period, that is
87-14 less than the utility's allowed return on equity as established by
87-15 the commission in the utility's most recent general rate case; or
87-16 (B) a new generating facility or other major
87-17 construction project has been completed and has been placed in
87-18 service;
87-19 (3) specifically authorize a utility to initiate a
87-20 rate proceeding before its scheduled time by a showing of good
87-21 cause;
87-22 (4) define the good cause conditions that will allow a
87-23 utility to initiate a rate proceeding before its scheduled time;
87-24 and
87-25 (5) define the conditions under which a utility may
87-26 bypass a scheduled rate proceeding if a rate change is not needed
87-27 <A water or sewer utility exempted in Subsection (a) of this
88-1 section may change its rates by filing a statement of change with
88-2 the commission at least 30 days after providing notice of the
88-3 change to its customers. The changed rates may be put into effect
88-4 on the filing of the statement of change. At the request of
88-5 one-tenth of the customers of the utility within 60 days after the
88-6 day the rates are put into effect, the commission may hold a
88-7 hearing, which may be an informal proceeding. On a finding by the
88-8 commission that the changed rates are not just and reasonable, the
88-9 commission shall set the utility's rates according to its usual
88-10 procedure. The utility shall refund or credit against future bills
88-11 all sums collected since the filing of the statement of change in
88-12 excess of the rate finally set plus interest at the current rate as
88-13 finally determined by the commission. No filing for a rate change
88-14 under this section may be made for a period of six months from the
88-15 last such filing by the same utility>.
88-16 SECTION 5.05. Article VI, Public Utility Regulatory Act
88-17 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
88-18 adding Section 37A to read as follows:
88-19 Sec. 37A. (a) An electric cooperative corporation that
88-20 provides retail electric utility service at distribution voltage is
88-21 exempt from rate regulation if a majority of the members voting in
88-22 an election on the deregulation of the electric cooperative vote to
88-23 approve the exemption and the electric cooperative sends notice of
88-24 the action to each applicable regulatory authority. An electric
88-25 cooperative that wants to hold an election under this section shall
88-26 send a ballot by mail to each electric cooperative member. The
88-27 electric cooperative may include the ballot in a monthly billing.
89-1 The ballot shall provide for voting for or against rate
89-2 deregulation of the electric cooperative. If the proposition is
89-3 approved, the electric cooperative shall send each ballot to the
89-4 commission not later than the 10th day after the date the electric
89-5 cooperative counts the ballots. Based on the ballots received, the
89-6 commission shall administratively certify that the electric
89-7 cooperative is or is not deregulated for rate-making purposes. An
89-8 electric cooperative may not hold another election on the issue of
89-9 being exempt from rate regulation before the first anniversary of
89-10 the most recent election on the issue. Subsections (b) through (n)
89-11 of this section apply to an electric cooperative that has elected
89-12 to be exempt from rate regulation.
89-13 (b) No regulatory authority shall fix and regulate the rates
89-14 of an electric cooperative that has made an election under this
89-15 section to be exempt from rate regulation except as provided for
89-16 the commission in Subsections (g) and (i) of this section.
89-17 Notwithstanding Subsection (a) of Section 17 of this Act, the
89-18 commission has exclusive original jurisdiction in all of the
89-19 electric cooperative's service area in a proceeding initiated under
89-20 Subsection (g) or (i) of this section.
89-21 (c) An electric cooperative may change its rates by:
89-22 (1) adopting a resolution approving the proposed
89-23 change;
89-24 (2) mailing notice of the proposed change to:
89-25 (A) the commission;
89-26 (B) each affected municipality;
89-27 (C) each affected customer, which notice may be
90-1 included in a monthly billing; and
90-2 (D) each electric utility providing retail
90-3 service in the electric cooperative's service area or in the
90-4 adjoining service area; and
90-5 (3) making available at each of the electric
90-6 cooperative's business offices for review by all interested persons
90-7 a cost-of-service study that:
90-8 (A) is not more than five years old at the time
90-9 the electric cooperative adopts rates under this subsection; and
90-10 (B) bears the certification of a professional
90-11 engineer or certified public accountant.
90-12 (d)(1) The notice required by Subsection (c) of this section
90-13 must contain the following information:
90-14 (A) the increase or decrease in total operating
90-15 revenues over actual test year revenues or over test year revenues
90-16 adjusted to annualize the recovery of changes in the cost of
90-17 purchased electricity, stated both as a dollar amount and as a
90-18 percentage;
90-19 (B) the classes of utility customers affected
90-20 and the creation and application of any new rate classes;
90-21 (C) the increase or decrease for each class
90-22 stated as a percentage of actual test year revenues for the class
90-23 or of test year revenues for the class adjusted to annualize the
90-24 recovery of changes in the cost of purchased electricity;
90-25 (D) a statement that the commission may review
90-26 the rate change if the commission receives a petition in accordance
90-27 with Subsection (g) of this section;
91-1 (E) the address and telephone number of the
91-2 commission;
91-3 (F) a statement that a customer opposed to the
91-4 rate change should notify the electric cooperative in writing of
91-5 the person's opposition and should provide a return address; and
91-6 (G) a statement that members may review a copy
91-7 of any written opposition the electric cooperative receives.
91-8 (2) The electric cooperative may not be required to
91-9 include additional information in the notice.
91-10 (e) The electric cooperative shall make available for review
91-11 by a member of the cooperative at each of the electric
91-12 cooperative's business offices a copy of any written opposition to
91-13 the rate change the electric cooperative receives.
91-14 (f) The electric cooperative shall file tariffs with the
91-15 commission. If the electric cooperative complies with Subsection
91-16 (c) of this section, the commission shall approve the tariffs not
91-17 later than the 10th day after the 60-day period prescribed by
91-18 Subsection (g) of this section expires, unless a review is required
91-19 under Subsection (g) or (i) of this section. If the tariffs are
91-20 approved or if a review is not required and the commission fails to
91-21 act during the period prescribed by this subsection, the change in
91-22 rates takes effect on the 70th day after the date on which the
91-23 electric cooperative first complies with all requirements of
91-24 Subsection (c) of this section or on a later date determined by the
91-25 electric cooperative. Except as provided by Subsections (g) and
91-26 (i) of this section, the rates of the electric cooperative are not
91-27 subject to review.
92-1 (g) The commission shall review a change in rates under this
92-2 section if, not later than the 60th day after the date the electric
92-3 cooperative first complies with all requirements of Subsection (c)
92-4 of this section, the commission receives a petition requesting
92-5 review signed by:
92-6 (1) at least 10 percent of the members of the electric
92-7 cooperative;
92-8 (2) members of the electric cooperative who purchased
92-9 more than 50 percent of the electric cooperative's annual energy
92-10 sales to a customer class in the test year, provided that the
92-11 petition includes a certification of the purchases; or
92-12 (3) an executive officer of an affected electric
92-13 utility, provided that the petition prescribes the particular class
92-14 or classes for which a review is requested.
92-15 (h) When a person files a petition under Subsection (g) of
92-16 this section, the person shall notify the electric cooperative in
92-17 writing of the action.
92-18 (i) The commission may on its own motion review the rates of
92-19 an electric cooperative if the commission first finds that there is
92-20 good cause to believe that the electric cooperative is earning more
92-21 than a reasonable return.
92-22 (j) The commission shall conduct a review under Subdivision
92-23 (1) or (2) of Subsection (g) of this section or under Subsection
92-24 (i) of this section in accordance with Section 43 of this Act and
92-25 the other applicable rate-setting principles of Article VI of this
92-26 Act, except that:
92-27 (1) the period for review does not begin until the
93-1 electric cooperative files a rate-filing package as required by
93-2 commission rules;
93-3 (2) the proposed change may not be suspended during
93-4 the pendency of the review; however, the electric cooperative shall
93-5 refund or credit against future bills all sums collected in excess
93-6 of the rate finally set by the commission, if the commission so
93-7 orders; and
93-8 (3) the electric cooperative shall observe the rates
93-9 set by the commission until the rates are changed as provided by
93-10 this section or by other sections of this Act.
93-11 (k) For a review conducted under Subdivision (3) of
93-12 Subsection (g) of this section, the electric cooperative shall file
93-13 with the commission a copy of the cost-of-service study required
93-14 under Subsection (c)(3) of this section not later than the 10th day
93-15 after the date the electric cooperative receives from the affected
93-16 electric utility notice that a petition has been filed. The
93-17 commission shall determine for each class for which review has been
93-18 requested the annual cost of providing service to the class, as
93-19 stated in the electric cooperative's cost-of-service study, and the
93-20 revenues for the class that would be produced by multiplying the
93-21 rate set by the electric cooperative by the annual billing units
93-22 for the class, as stated in the cost-of-service study. If the
93-23 electric cooperative proposes a rate class solely for a new
93-24 customer, the electric cooperative shall estimate the reasonable
93-25 annual cost of providing service to the class, and the electric
93-26 cooperative shall base class revenues on reasonable estimates of
93-27 billing units.
94-1 (l) The rate for each class for which review has been
94-2 requested under Subdivision (3) of Subsection (g) of this section
94-3 is suspended during the pendency of the review. The commission
94-4 shall dismiss the petition and approve the rates if the revenues
94-5 for the class are equal to or greater than the cost of providing
94-6 service to the class. The commission shall disapprove the rate if
94-7 the revenues for the class are less than the cost of providing
94-8 service to the class; however, this action does not affect
94-9 reconsideration of the rate as a part of any subsequent rate-making
94-10 proceeding. The rate adopted by the electric cooperative is deemed
94-11 approved and may be placed into effect if the commission fails to
94-12 make its final determination administratively not later than the
94-13 45th day after the date the electric cooperative files its
94-14 cost-of-service study.
94-15 (m) Except as provided by Subsection (a) of this section,
94-16 the members of an electric cooperative may at any time revoke the
94-17 electric cooperative's election to be exempt from rate regulation
94-18 or elect to again be exempt from rate regulation by majority vote
94-19 of the members voting.
94-20 (n) This section does not affect the application of other
94-21 provisions of this Act not directly related to rates or to the
94-22 authority of the commission to require an electric cooperative to
94-23 file reports required under this Act or rules adopted by the
94-24 commission. A service fee or a service rule or regulation set by
94-25 the electric cooperative under this section must comply with
94-26 commission rules applicable to all electric utilities. The
94-27 commission may determine whether an electric cooperative has
95-1 unlawfully charged, collected, or received a rate for electric
95-2 utility service.
95-3 SECTION 5.06. Article III, Public Utility Regulatory Act
95-4 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
95-5 adding Section 19A to read as follows:
95-6 Sec. 19A. (a) The commission shall adopt rules to encourage
95-7 economical production of electric capacity and energy for sale at
95-8 wholesale with the goal of benefiting ratepayers with competition
95-9 and diversity in electric power generation.
95-10 (b) Except as otherwise provided by this section, the
95-11 commission may adopt rules that provide for the exemption of exempt
95-12 wholesale generators from any provision of this Act and from other
95-13 rules adopted by the commission if the commission determines that
95-14 the exemption is in the public interest.
95-15 (c) The commission may not provide for an exemption from the
95-16 provisions of:
95-17 (1) Section 28 of this Act relating to requiring
95-18 reports from the exempt wholesale generator;
95-19 (2) Subsections (a) and (b) of Section 29 of this Act
95-20 relating to access to books and records of the exempt wholesale
95-21 generator;
95-22 (3) Subsection (c) of Section 29 of this Act to the
95-23 extent necessary to ensure the reliability and financial integrity
95-24 of the exempt wholesale generator;
95-25 (4) Section 35 of this Act relating to safety
95-26 regulations; or
95-27 (5) Subdivision (1) of Subsection (c) of Section 41
96-1 relating to affiliate interests, if an affiliate of the exempt
96-2 wholesale generator is an electric utility whose cost of service is
96-3 regulated by the commission.
96-4 (d) The commission by rule shall require commission approval
96-5 of contracts between electric utilities and exempt wholesale
96-6 generators. Approval of a contract by the commission does not
96-7 affect the purchasing utility's burden of proving in a rate case or
96-8 a fuel reconciliation proceeding that the costs incurred in
96-9 relation to the contract were reasonable.
96-10 (e) The commission may not approve a contract under
96-11 Subsection (d) unless the commission determines that the contract
96-12 and the parties to the contract meet the standards the commission
96-13 determines to be in the public interest, including standards
96-14 requiring that:
96-15 (1) the financial integrity of the exempt wholesale
96-16 generator or the use by the generator of a capital structure that
96-17 employs proportionally greater amounts of debt than the capital
96-18 structure of the utility, or both, does not threaten the
96-19 generator's reliability;
96-20 (2) there are reasonable assurances of an adequate
96-21 fuel supply;
96-22 (3) the original prices, terms, and conditions of the
96-23 contract at the time the contract was entered were reasonable and
96-24 that it was reasonable for the parties to contract; and
96-25 (4) the exempt wholesale generator meets technical and
96-26 operating standards necessary for safe and reliable service.
96-27 (f) A finding that the original prices, terms, and
97-1 conditions of the contract at the time the contract was entered
97-2 were reasonable and that it was reasonable for the parties to
97-3 contract does not preclude the commission from reviewing the
97-4 utility's subsequent actions relating to the contract.
97-5 (g) In determining whether a contract is in the public
97-6 interest, the commission shall evaluate the potential for increases
97-7 or decreases in the cost of capital for electric utilities and any
97-8 resulting increases or decreases in retail rates that may result
97-9 from purchases of long-term wholesale power supplies instead of the
97-10 construction of new generation facilities by the utility.
97-11 (h) A facility is not considered an eligible facility if
97-12 ratepayers pay or have paid a rate or charge for or in connection
97-13 with the construction of the facility or for electric energy
97-14 produced by the facility, other than a portion of a rate or charge
97-15 that represents recovery of the cost of a wholesale rate or charge.
97-16 (i) An electric utility whose cost of service is regulated
97-17 by the commission may not contract to purchase electric energy or
97-18 capacity from an exempt wholesale generator that is an affiliate of
97-19 the utility. However, the utility may purchase energy or capacity
97-20 from an affiliated exempt wholesale generator during a system
97-21 emergency.
97-22 (j) The commission may not authorize an exempt wholesale
97-23 generator to make a sale for a purpose other than resale.
97-24 (k) The commission is entitled to have access to the
97-25 financial, technical, and operational records and books of an
97-26 exempt wholesale generator to the extent necessary to enforce this
97-27 section or rules adopted under this section.
98-1 (l) A decision of an electric utility to purchase power from
98-2 an exempt wholesale generator is subject to any capacity planning
98-3 and resource need review process, including required solicitations
98-4 for resources, that the commission may adopt.
98-5 (m) This section does not exempt an entity that generates
98-6 power in this state from an applicable environmental or siting
98-7 regulation.
98-8 (n) In this section:
98-9 (1) "Eligible facility" has the meaning assigned by
98-10 the Public Utility Holding Company Act of 1935 (15 U.S.C. Section
98-11 79z-5a(a)).
98-12 (2) "Exempt wholesale generator" has the meaning
98-13 assigned by the Public Utility Holding Company Act of 1935 (15
98-14 U.S.C. Section 79z-5a(a)).
98-15 SECTION 5.07. Article XIII, Public Utility Regulatory Act
98-16 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
98-17 adding Section 88B to read as follows:
98-18 Sec. 88B. (a) If the United States Congress enacts an
98-19 energy tax based on British thermal units (Btu) and the tax becomes
98-20 law, each electric utility shall state on each customer's bill the
98-21 amount included in the bill that is derived from that tax.
98-22 (b) The commission by rule shall prescribe the procedure an
98-23 electric utility shall use to determine the amount derived from the
98-24 tax and shall specify the form used for the statement.
98-25 ARTICLE 6
98-26 SECTION 6.01. Subsections (a), (b), and (e), Section 17,
98-27 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
99-1 Statutes), are amended to read as follows:
99-2 (a) Subject to the limitations imposed in this Act, and for
99-3 the purpose of regulating rates and services so that such rates may
99-4 be fair, just, and reasonable, and the services adequate and
99-5 efficient, the governing body of each municipality shall have
99-6 exclusive original jurisdiction over all electric<, water, and
99-7 sewer> utility rates, operations, and services provided by an
99-8 electric<, water, and sewer> utility within its city or town
99-9 limits.
99-10 (b) A <At any time after two years have passed from the date
99-11 this Act becomes effective, a> municipality may elect to have the
99-12 commission exercise exclusive original jurisdiction over electric<,
99-13 water, or sewer> utility rates, operations, and services within the
99-14 incorporated limits of the municipality. The governing body of a
99-15 municipality may by ordinance elect to surrender its original
99-16 jurisdiction to the commission, or the governing body may submit
99-17 the question of the surrender to the qualified voters at a
99-18 municipal election. Upon receipt of a petition signed by the
99-19 lesser of 20,000 or ten percent of the number of qualified voters
99-20 voting in the last preceding general election in that municipality,
99-21 the governing body shall submit the question of the surrender of
99-22 the municipality's original jurisdiction to the commission at a
99-23 municipal election.
99-24 (e) The commission shall have exclusive original
99-25 jurisdiction over electric<, water, and sewer> utility rates,
99-26 operations, and services not within the incorporated limits of a
99-27 municipality exercising exclusive original jurisdiction over those
100-1 rates, operations, and services as provided in this Act.
100-2 SECTION 6.02. Subsections (p), (q), and (r), Section 18,
100-3 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
100-4 Statutes), are amended to read as follows:
100-5 (p) <Before January 15 of each odd-numbered year, the
100-6 commission shall report to the legislature on the scope of
100-7 competition in regulated telecommunications markets and the impact
100-8 of competition on customers in both competitive and noncompetitive
100-9 markets, with a specific focus on rural markets. The report shall
100-10 include an assessment of the impact of competition on the rates and
100-11 availability of telecommunications services for residential and
100-12 business customers and shall specifically address any effects on
100-13 universal service. The report shall provide a summary of
100-14 commission actions over the preceding two years that reflect
100-15 changes in the scope of competition in regulated telecommunications
100-16 markets. The report shall also include recommendations to the
100-17 legislature for further legislation that the commission finds
100-18 appropriate to promote the public interest in the context of a
100-19 partially competitive telecommunications market.>
100-20 <(q)> The commission may exempt from any requirement of this
100-21 section an interexchange telecommunications carrier that the
100-22 commission determines does not have a significant effect on the
100-23 public interest, and it may exempt any interexchange carrier which
100-24 solely relies on the facilities of others to complete long distance
100-25 calls if the commission deems this action to be in the public
100-26 interest.
100-27 (q) <(r)> Requirements imposed by Subsections (c), (d), (k),
101-1 (l), (m), (n), (o), and (p)<, and (q)> of this section on an
101-2 interexchange telecommunications carrier shall apply to nondominant
101-3 carriers and shall constitute the minimum requirements to be
101-4 imposed by the commission for any dominant carrier.
101-5 SECTION 6.03. Subsection (c), Section 26, Public Utility
101-6 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), as
101-7 amended by Chapters 325 and 1167, Acts of the 71st Legislature,
101-8 Regular Session, 1989, is amended to reconcile those amendments to
101-9 read as follows:
101-10 (c)(1) Ratepayers of a municipally owned electric utility
101-11 outside the municipal limits may appeal any action of the governing
101-12 body affecting the rates of the municipally owned electric utility
101-13 through filing with the commission a petition for review signed by
101-14 the lesser of 10,000 or 5 percent of the ratepayers served by such
101-15 utility outside the municipal limits. For purposes of this
101-16 subsection each person receiving a separate bill shall be
101-17 considered as a ratepayer. But no person shall be considered as
101-18 being more than one ratepayer notwithstanding the number of bills
101-19 received. Such petition for review shall be considered properly
101-20 signed if signed by any person, or spouse of any such person, in
101-21 whose name residential utility service is carried.
101-22 (2) The municipality that owns the electric utility
101-23 shall on request disclose to any person the number of ratepayers
101-24 who reside outside the municipal limits. The municipality shall
101-25 provide the information by telephone or in a written form, as
101-26 preferred by the person making the request. The municipality may
101-27 not charge a fee for providing the information. The municipality
102-1 shall on request provide to any person a list of the names and
102-2 addresses of the ratepayers who reside outside the municipal
102-3 limits. The municipality may charge a reasonable fee to cover the
102-4 cost of providing the list.
102-5 (3) <(2)> Not later than the 14th day after the date
102-6 on which the governing body makes a final decision, the
102-7 municipality shall issue a written report stating the effect of the
102-8 decision on each class of ratepayers. The appeal process shall be
102-9 instituted by filing a petition for review with the commission and
102-10 serving copies on all parties to the original rate proceeding. The
102-11 petition must be filed not later than the 45th day after the date
102-12 on which the municipality issues the written report prescribed by
102-13 this subsection.
102-14 (4) Not later than the 90th day after the date on
102-15 which a petition for review that meets the requirements of this
102-16 subsection is filed, the municipality shall file with the
102-17 commission a rate application that complies in all material
102-18 respects with the rules and forms prescribed by the commission.
102-19 The commission may, for good cause shown, extend the <time> period
102-20 for filing the rate application.
102-21 SECTION 6.04. Section 41B, Public Utility Regulatory Act
102-22 (Article 1446c, Vernon's Texas Civil Statutes), as added by Chapter
102-23 1182, Acts of the 71st Legislature, Regular Session, 1989, is
102-24 amended to read as follows:
102-25 Sec. 41C <41B>. The commission shall not have the authority
102-26 to interfere with employee wages and benefits, working conditions,
102-27 or other terms or conditions of employment that are the product of
103-1 a collective bargaining agreement recognized under federal law.
103-2 Employee wage rates and benefit levels that are the product of such
103-3 bargaining shall be presumed reasonable.
103-4 SECTION 6.05. Subsection (c), Section 43, Public Utility
103-5 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
103-6 amended to read as follows:
103-7 (c) Whenever there is filed with the Regulatory Authority
103-8 any schedule modifying or resulting in a change in any rates then
103-9 in force, the Regulatory Authority shall on complaint by any
103-10 affected person or may on its own motion, at any time within 30
103-11 days from the date when such change would or has become effective,
103-12 and, if it so orders, without answer or other formal pleading by
103-13 the utility, but on reasonable notice, including notice to the
103-14 governing bodies of all affected municipalities and counties, enter
103-15 on a hearing to determine the propriety of such change. The
103-16 Regulatory Authority shall hold such a hearing in every case in
103-17 which the change constitutes a major change in rates, provided that
103-18 an informal proceeding may satisfy this requirement if no complaint
103-19 has been received before the expiration of 45 days after notice of
103-20 the change shall have been filed. In each case where the
103-21 commission determines it is in the public interest to collect
103-22 testimony at a regional hearing for the inclusion in the record,
103-23 the commission shall hold a regional hearing at an appropriate
103-24 location. A regional hearing is not required in a case involving a
103-25 <water, sewer, or> member-owned utility, unless the commission
103-26 determines otherwise.
103-27 SECTION 6.06. Section 49, Public Utility Regulatory Act
104-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
104-2 as follows:
104-3 Sec. 49. For the purposes of this article only,
104-4 "retail<: (a) "Retail> public utility" means any person,
104-5 corporation, <water supply or sewer service corporation,>
104-6 municipality, political subdivision or agency, or cooperative
104-7 corporation, now or hereafter operating, maintaining, or
104-8 controlling in Texas facilities for providing retail utility
104-9 service.
104-10 <(b) For the purposes of this article only, "public utility"
104-11 includes a water supply or sewer service corporation.>
104-12 SECTION 6.07. Subsections (a) and (b), Section 72, Public
104-13 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
104-14 Statutes), are amended to read as follows:
104-15 (a) Any public utility<, water supply or sewer service
104-16 corporation,> or affiliated interest that knowingly violates a
104-17 provision of this Act, fails to perform a duty imposed on it, or
104-18 fails, neglects, or refuses to obey an order, rule, regulation,
104-19 direction, or requirement of the commission or decree or judgment
104-20 of a court, shall be subject to a civil penalty of not less than
104-21 $1,000 nor more than $5,000 for each offense.
104-22 (b) A public utility<, water supply or sewer service
104-23 corporation,> or affiliated interest commits a separate offense
104-24 each day it continues to violate the provisions of Subsection (a)
104-25 of this section.
104-26 SECTION 6.08. Subsection (a), Section 74, Public Utility
104-27 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
105-1 amended to read as follows:
105-2 (a) Except as provided by Section 117 <87B> of this Act, any
105-3 person or persons who willfully and knowingly violate the
105-4 provisions of this Act shall be guilty of a third degree felony.
105-5 SECTION 6.09. The following sections of the Public Utility
105-6 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes) are
105-7 repealed:
105-8 (1) Section 71B;
105-9 (2) Section 87A; and
105-10 (3) Section 90.
105-11 ARTICLE 7
105-12 SECTION 7.01. Article XIII, Public Utility Regulatory Act
105-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
105-14 adding Sections 91A and 91B to read as follows:
105-15 Sec. 91A. (a) The commission may receive, monitor, and
105-16 attempt to mediate complaints relating to cellular telephone
105-17 service that have been submitted by cellular customers or carriers.
105-18 (b) This section does not give the commission the authority
105-19 to regulate in any way cellular services or rates.
105-20 (c) This section expires August 31, 1995.
105-21 Sec. 91B. (a) The lieutenant governor and speaker of the
105-22 house of representatives shall appoint a joint interim committee to
105-23 study state telecommunications regulatory policy and utility tax
105-24 policy.
105-25 (b) Members of the committee serve without compensation. If
105-26 a member of the legislature is appointed, the legislative member is
105-27 entitled to reimbursement for expenses from the member's house to
106-1 the same extent as for other legislative duties. Other members are
106-2 entitled to reimbursement for expenses from funds appropriated to
106-3 the commission to the same extent as state employees would be
106-4 reimbursed under the General Appropriations Act. Expenses of
106-5 cooperating and support agencies and offices, including the cost of
106-6 staff provided under Subsection (f) or (g) of this section, shall
106-7 be borne by those agencies.
106-8 (c) The joint committee shall study:
106-9 (1) state telecommunications regulatory policy with
106-10 specific attention to matters prescribed by the lieutenant governor
106-11 and speaker of the house of representatives; and
106-12 (2) tax issues, including investment tax credits,
106-13 accelerated depreciation, consolidated returns, affiliates, and
106-14 disallowances, for all utilities except for gas utilities.
106-15 (d) In addition to the duties prescribed by Subsection (c)
106-16 of this section, the committee shall supervise the commission in
106-17 the collection of information on current cellular telephone
106-18 services as prescribed by Section 91A of this Act.
106-19 (e) The joint committee shall develop a report that analyzes
106-20 the state's telecommunications regulatory policy, utility tax
106-21 policies, and the cellular telephone information collected by the
106-22 commission and that includes specific policy options and
106-23 recommended rule or statutory changes to implement the policy
106-24 options. The joint committee may make preliminary reports but
106-25 shall make a final report not later than November 1, 1994.
106-26 (f) On request of the committee, the commission, the office,
106-27 the Texas Legislative Council, the governor's office, the senate,
107-1 and the house of representatives shall provide staff as necessary
107-2 to carry out the duties of the joint committee.
107-3 (g) If necessary to the discharge of its duties, the joint
107-4 committee may request the assistance of a state agency, department,
107-5 or office. The agency, department, or office shall provide the
107-6 requested assistance.
107-7 (h) The committee is abolished on the date it issues its
107-8 final report under Subsection (e) of this section.
107-9 (i) This section expires August 31, 1995.
107-10 SECTION 7.02. (a) Effective September 1, 1995, Subsection
107-11 (c), Section 3, Public Utility Regulatory Act (Article 1446c,
107-12 Vernon's Texas Civil Statutes), is amended to read as follows:
107-13 (c) The term "public utility" or "utility," when used in
107-14 this Act, includes any person, corporation, river authority,
107-15 cooperative corporation, or any combination thereof, other than a
107-16 municipal corporation <or a water supply or sewer service
107-17 corporation>, or their lessees, trustees, and receivers, now or
107-18 hereafter owning or operating for compensation in this state
107-19 equipment or facilities for:
107-20 (1) producing, generating, transmitting, distributing,
107-21 selling, or furnishing electricity ("electric utilities"
107-22 hereinafter) provided, however, that this definition shall not be
107-23 construed to apply to or include a qualifying small power producer
107-24 or qualifying cogenerator, as defined in Sections 3(17)(D) and
107-25 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
107-26 796(17)(D) and 796(18)(C));
107-27 (2)<(A) the conveyance, transmission, or reception of
108-1 communications over a telephone system as a dominant carrier as
108-2 hereinafter defined ("telecommunications utilities" hereinafter);
108-3 provided that no person or corporation not otherwise a public
108-4 utility within the meaning of this Act shall be deemed such solely
108-5 because of the furnishing or furnishing and maintenance of a
108-6 private system or the manufacture, distribution, installation, or
108-7 maintenance of customer premise communications equipment and
108-8 accessories; and provided further that nothing in this Act shall be
108-9 construed to apply to telegraph services, television stations,
108-10 radio stations, community antenna television services, or
108-11 radio-telephone services that may be authorized under the Public
108-12 Mobile Radio Services rules of the Federal Communications
108-13 Commission, other than such radio-telephone services provided by
108-14 wire-line telephone companies under the Domestic Public Land Mobile
108-15 Radio Service and Rural Radio Service rules of the Federal
108-16 Communications Commission; and provided further that interexchange
108-17 telecommunications carriers (including resellers of interexchange
108-18 telecommunications services), specialized communications common
108-19 carriers, other resellers of communications, other communications
108-20 carriers who convey, transmit, or receive communications in whole
108-21 or in part over a telephone system, and providers of operator
108-22 services as defined in Section 18A(a) of this Act (except that
108-23 subscribers to customer-owned pay telephone service shall not be
108-24 deemed to be telecommunications utilities) who are not dominant
108-25 carriers are also telecommunications utilities, but the
108-26 commission's regulatory authority as to them is only as hereinafter
108-27 defined;>
109-1 <(B) "dominant carrier" when used in this Act
109-2 means (i) a provider of any particular communication service which
109-3 is provided in whole or in part over a telephone system who as to
109-4 such service has sufficient market power in a telecommunications
109-5 market as determined by the commission to enable such provider to
109-6 control prices in a manner adverse to the public interest for such
109-7 service in such market; and (ii) any provider of local exchange
109-8 telephone service within a certificated exchange area as to such
109-9 service. A telecommunications market shall be statewide until
109-10 January 1, 1985. After this date the commission may, if it
109-11 determines that the public interest will be served, establish
109-12 separate markets within the state. Prior to January 1, 1985, the
109-13 commission shall hold such hearings and require such evidence as is
109-14 necessary to carry out the public purpose of this Act and to
109-15 determine the need and effect of establishing separate markets.
109-16 Any such provider determined to be a dominant carrier as to a
109-17 particular telecommunications service in a market shall not be
109-18 presumed to be a dominant carrier of a different telecommunications
109-19 service in that market.>
109-20 <(3)> The term "public utility" or "utility" shall not
109-21 include any person or corporation not otherwise a public utility
109-22 that furnishes the services or commodity described in any paragraph
109-23 of this subsection only to itself, its employees, or tenants as an
109-24 incident of such employee service or tenancy, when such service or
109-25 commodity is not resold to or used by others. The term "electric
109-26 utility" shall not include any person or corporation not otherwise
109-27 a public utility that owns or operates in this state equipment or
110-1 facilities for producing, generating, transmitting, distributing,
110-2 selling, or furnishing electric energy to an electric utility, if
110-3 the equipment or facilities are used primarily for the production
110-4 and generation of electric energy for consumption by the person or
110-5 corporation. The term "public utility," "utility," or "electric
110-6 utility" shall not include any person or corporation not otherwise
110-7 a public utility that owns or operates in this state a recreational
110-8 vehicle park that provides metered electric service in accordance
110-9 with Article 1446d-2, Revised Statutes. A recreational vehicle
110-10 park owner is considered a public utility if the owner fails to
110-11 comply with Article 1446d-2, Revised Statutes, with regard to the
110-12 metered sale of electricity at the recreational vehicle park.
110-13 (b) Effective September 1, 1995, Section 18, Public Utility
110-14 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
110-15 amended to read as follows:
110-16 Sec. 18. (a) <It is the policy of this state to protect the
110-17 public interest in having adequate and efficient telecommunications
110-18 service available to all citizens of the state at just, fair, and
110-19 reasonable rates.> The legislature finds that the interexchange
110-20 telecommunications industry through technical advancements, federal
110-21 judicial and administrative actions, and the formulation of new
110-22 telecommunications enterprises has become and will continue to be
110-23 in many and growing areas a competitive industry which does not
110-24 lend itself to traditional public utility regulatory rules,
110-25 policies, and principles; and that therefore, the public interest
110-26 requires that new rules, policies, and principles be formulated and
110-27 applied to protect the public interest and to provide equal
111-1 opportunity to all interexchange telecommunications utilities in a
111-2 competitive marketplace. It is the purpose of this section to
111-3 grant to the commission the authority and the power under this Act
111-4 to carry out the public policy herein stated.
111-5 (b) <Subject to the limitations imposed in this Act, and for
111-6 the purpose of carrying out the public policy above stated and of
111-7 regulating rates, operations, and services so that such rates may
111-8 be just, fair, and reasonable, and the services adequate and
111-9 efficient, the commission shall have exclusive original
111-10 jurisdiction over the business and property of all
111-11 telecommunications utilities in this state. In the exercise of its
111-12 jurisdiction to regulate the rates, operations, and services of a
111-13 telecommunications utility providing service in a municipality on
111-14 the state line adjacent to a municipality in an adjoining state,
111-15 the commission may cooperate with the utility regulatory commission
111-16 of the adjoining state or the federal government and may hold joint
111-17 hearings and make joint investigations with any of those
111-18 commissions.>
111-19 <(c)> Except as provided by Subsections (e) and (f) of this
111-20 section and Section 18A of this Act, the commission shall only have
111-21 the following jurisdiction over all telecommunications utilities
111-22 that are interexchange telecommunications carriers but who are not
111-23 certificated local exchange companies <dominant carriers>:
111-24 (1) to require registration as provided in Subsection
111-25 (c) <(d)> of this section;
111-26 (2) to conduct such investigations as are necessary to
111-27 determine the existence, impact, and scope of competition in the
112-1 telecommunications industry, <including identifying dominant
112-2 carriers and defining the telecommunications market or markets,>
112-3 and in connection therewith may call and hold hearings, issue
112-4 subpoenas to compel the attendance of witnesses and the production
112-5 of papers and documents, and make findings of fact and decisions
112-6 with respect to administering the provisions of this Act or the
112-7 rules, orders, and other actions of the commission;
112-8 (3) to require the filing of such reports as the
112-9 commission may direct from time to time;
112-10 (4) to require the maintenance of statewide average
112-11 rates or prices of telecommunications service;
112-12 (5) to require that every local exchange area have
112-13 access to interexchange telecommunications service, except that an
112-14 interexchange telecommunications carrier must be allowed to
112-15 discontinue service to a local exchange area if comparable service
112-16 is available in the area and the discontinuance is not contrary to
112-17 the public interest. This section does not authorize the
112-18 commission to require an interexchange telecommunications carrier
112-19 that has not provided services to a local exchange area during the
112-20 previous 12 months and that has never provided services to that
112-21 same local exchange area for a cumulative period of one year at any
112-22 time in the past to initiate services to that local exchange area;
112-23 and
112-24 (6) to require the quality of interexchange
112-25 telecommunications service provided in each exchange to be adequate
112-26 to protect the public interest and the interests of customers of
112-27 that exchange if the commission determines that service to a local
113-1 exchange has deteriorated to the point that long distance service
113-2 is not reliable.
113-3 (c) <(d)> All providers of communications service described
113-4 in Subsection (b) <(c)> of this section who are providing such
113-5 service to the public on the effective date of this Act shall
113-6 register with the commission within 90 days of the effective date
113-7 of this Act unless the provider has previously registered with the
113-8 commission. All providers of communications service described in
113-9 Subsection (b) <(c)> of this section who commence such service to
113-10 the public thereafter shall register with the commission within 30
113-11 days of commencing service. Such registration shall be
113-12 accomplished by filing with the commission a description of the
113-13 location and type of service provided, the cost to the public of
113-14 such service, and such other registration information as the
113-15 commission may direct. Notwithstanding any other provision of this
113-16 Act, an interexchange telecommunications carrier doing business in
113-17 this state shall continue to maintain on file with the commission
113-18 tariffs or lists governing the terms of providing its services.
113-19 (d) <(e)(1) For the purpose of carrying out the public
113-20 policy stated in Subsection (a) of this section and any other
113-21 section of this Act notwithstanding, the commission is granted all
113-22 necessary power and authority under this Act to promulgate rules
113-23 and establish procedures applicable to local exchange companies for
113-24 determining the level of competition in specific telecommunications
113-25 markets and submarkets and providing appropriate regulatory
113-26 treatment to allow local exchange companies to respond to
113-27 significant competitive challenges. Nothing in this section is
114-1 intended to change the burden of proof of the local exchange
114-2 company under Sections 38, 39, 40, and 41 of Article VI of this
114-3 Act.>
114-4 <(2) In determining the level of competition in a
114-5 specific market or submarket, the commission shall hold an
114-6 evidentiary hearing to consider the following:>
114-7 <(A) the number and size of telecommunications
114-8 utilities or other persons providing the same, equivalent, or
114-9 substitutable service;>
114-10 <(B) the extent to which the same, equivalent,
114-11 or substitutable service is available;>
114-12 <(C) the ability of customers to obtain the
114-13 same, equivalent, or substitutable services at comparable rates,
114-14 terms, and conditions;>
114-15 <(D) the ability of telecommunications utilities
114-16 or other persons to make the same, equivalent, or substitutable
114-17 service readily available at comparable rates, terms, and
114-18 conditions;>
114-19 <(E) the existence of any significant barrier to
114-20 the entry or exit of a provider of the service; and>
114-21 <(F) other relevant information deemed
114-22 appropriate.>
114-23 <(3) The regulatory treatments which the commission
114-24 may implement include but are not limited to:>
114-25 <(A) approval of a range of rates for a specific
114-26 service;>
114-27 <(B) approval of customer-specific contracts for
115-1 a specific service; provided, however, that the commission shall
115-2 approve a contract to provide central office based PBX-type
115-3 services for systems of 200 stations or more, billing and
115-4 collection services, high-speed private line services of 1.544
115-5 megabits or greater, and customized services, provided that the
115-6 contract is filed at least 30 days before initiation of the service
115-7 contracted for; that the contract is accompanied with an affidavit
115-8 from the person or entity contracting for the telecommunications
115-9 service stating that he considered the acquisition of the same,
115-10 equivalent, or substitutable services by bid or quotation from a
115-11 source other than the local exchange company; that the local
115-12 exchange company is recovering the appropriate costs of providing
115-13 the services; and that approval of the contract is in the public
115-14 interest. The contract shall be approved or denied within 30 days
115-15 after filing, unless the commission for good cause extends the
115-16 effective date for an additional 35 days; and>
115-17 <(C) the detariffing of rates.>
115-18 <(f) Moreover, in order to encourage the rapid introduction
115-19 of new or experimental services or promotional rates, the
115-20 commission shall promulgate rules and establish procedures which
115-21 allow the expedited introduction of, the establishment and
115-22 adjustment of rates for, and withdrawal of such services, including
115-23 requests for such services made to the commission by the governing
115-24 body of a municipality served by a local exchange company having
115-25 more than 500,000 access lines throughout the state. Rates
115-26 established or adjusted at the request of a municipality may not
115-27 result in higher rates for ratepayers outside the boundaries of the
116-1 municipality and may not include any rates for local exchange
116-2 company interexchange services or interexchange carrier access
116-3 service.>
116-4 <(g) In promulgating new rules and establishing the
116-5 procedures contemplated in Subsections (e) and (f) of this section,
116-6 the commission shall seek to balance the public interest in a
116-7 technologically advanced telecommunications system providing a wide
116-8 range of new and innovative services with traditional regulatory
116-9 concerns for preserving universal service, prohibiting
116-10 anticompetitive practices, and preventing the subsidization of
116-11 competitive services with revenues from regulated monopoly
116-12 services. The commission shall promulgate these rules and
116-13 establish these procedures so as to incorporate an appropriate mix
116-14 of regulatory and market mechanisms reflecting the level and nature
116-15 of competition in the marketplace. Rates established under
116-16 Subsections (e) and (f) of this section shall not be
116-17 (1) unreasonably preferential, prejudicial, or discriminatory;
116-18 (2) subsidized either directly or indirectly by regulated monopoly
116-19 services; or (3) predatory or anticompetitive.>
116-20 <(h) The commission shall initiate a rulemaking proceeding
116-21 and take public comment and promulgate rules which prescribe the
116-22 standards necessary to ensure that all rates set under the
116-23 provisions of this section cover their appropriate costs as
116-24 determined by the commission. Until such rules are promulgated,
116-25 the commission shall use a costing methodology that is in the
116-26 public interest in determining whether the rates set under the
116-27 provisions of this section cover their appropriate costs.>
117-1 <(i) The commission is granted all necessary power and
117-2 authority to prescribe and collect fees and assessments from local
117-3 exchange companies necessary to recover the commission's and the
117-4 Office of Public Utility Counsel's costs of activities carried out
117-5 and services provided under Subsections (e), (f), (g), (h), (i),
117-6 (j), and (k) of this section.>
117-7 <(j) Subsections (e) and (f) of this section are not
117-8 applicable to basic local exchange service, including local
117-9 measured service. Paragraph (B) of Subdivision (3) of Subsection
117-10 (e) of this section is not applicable to message telecommunications
117-11 services, switched access services for interexchange carriers, or
117-12 wide area telecommunications service. A local exchange company may
117-13 not price similar services provided pursuant to contracts under
117-14 Paragraph (B) of Subdivision (3) of Subsection (e) of this section
117-15 in an unreasonably discriminatory manner. For purposes of this
117-16 section, similar services shall be defined as those services which
117-17 are provided at or near the same point in time, which have the same
117-18 characteristics and which are provided under the same or similar
117-19 circumstances.>
117-20 <(k)> Before January 15 of each odd-numbered year, the
117-21 commission shall report to the legislature on the scope of
117-22 competition in regulated telecommunications markets and the impact
117-23 of competition on customers in both competitive and noncompetitive
117-24 markets, with a specific focus on rural markets. The report shall
117-25 include an assessment of the impact of competition on the rates and
117-26 availability of telecommunications services for residential and
117-27 business customers and shall specifically address any effects on
118-1 universal service. The report shall provide a summary of
118-2 commission actions over the preceding two years which reflect
118-3 changes in the scope of competition in regulated telecommunications
118-4 markets. The report shall also include recommendations to the
118-5 legislature for further legislation which the commission finds
118-6 appropriate to promote the public interest in the context of a
118-7 partially competitive telecommunications market.
118-8 (e) <(l)> Notwithstanding any other provision of this Act,
118-9 the commission may enter such orders as may be necessary to protect
118-10 the public interest, including the imposition on any specific
118-11 service or services of its full regulatory authority under Articles
118-12 III through XI of this Act, if the commission upon complaint from
118-13 another interexchange telecommunications carrier finds by a
118-14 preponderance of the evidence upon notice and hearing that an
118-15 interexchange telecommunications carrier has engaged in predatory
118-16 pricing or attempted to engage in predatory pricing <conduct that
118-17 demonstrates the ability to control prices in a manner adverse to
118-18 the public interest>.
118-19 (f) <(m)> Notwithstanding any other provision of this Act,
118-20 the commission may enter such orders as may be necessary to protect
118-21 the public interest if the commission finds upon notice and hearing
118-22 that an interexchange telecommunications carrier has:
118-23 (1) failed to maintain statewide average rates;
118-24 (2) abandoned interexchange message telecommunications
118-25 service to a local exchange area in a manner contrary to the public
118-26 interest; or
118-27 (3) engaged in a pattern of preferential or
119-1 discriminatory activities prohibited by Sections 45 and 47 of this
119-2 Act, except that nothing in this Act shall prohibit volume
119-3 discounts or other discounts based on reasonable business purposes.
119-4 (g) <(n)> In any proceeding before the commission alleging
119-5 conduct or activities by an interexchange telecommunications
119-6 carrier against another interexchange carrier in contravention of
119-7 Subsections (e), (f), and (h) <(l), (m), and (o)> of this section,
119-8 the burden of proof shall be upon the complaining interexchange
119-9 telecommunications carrier; however, in such proceedings brought by
119-10 customers or their representatives who are not themselves
119-11 interexchange telecommunications carriers or in such proceedings
119-12 initiated by the commission <commission's general counsel>, the
119-13 burden of proof shall be upon the respondent interexchange
119-14 telecommunications carrier. However, if the commission finds it to
119-15 be in the public interest, the commission may impose the burden of
119-16 proof in such proceedings on the complaining party.
119-17 (h) <(o)> The commission shall have the authority to require
119-18 that a service provided by an interexchange telecommunications
119-19 carrier described in Subsection (b) <(c)> of this section be made
119-20 available in an exchange served by the carrier within a reasonable
119-21 time after receipt of a bona fide request for such service in that
119-22 exchange, subject to the ability of the local exchange carrier to
119-23 provide the required access or other service. No carrier shall be
119-24 required to extend a service to an area if provision of that
119-25 service would impose, after consideration of the public interest to
119-26 be served, unreasonable costs upon or require unreasonable
119-27 investments by the interexchange telecommunications carrier. The
120-1 commission may require such information from interexchange carriers
120-2 and local exchange carriers as may be necessary to enforce this
120-3 provision.
120-4 (i) <(p) Before January 15 of each odd-numbered year, the
120-5 commission shall report to the legislature on the scope of
120-6 competition in regulated telecommunications markets and the impact
120-7 of competition on customers in both competitive and noncompetitive
120-8 markets, with a specific focus on rural markets. The report shall
120-9 include an assessment of the impact of competition on the rates and
120-10 availability of telecommunications services for residential and
120-11 business customers and shall specifically address any effects on
120-12 universal service. The report shall provide a summary of
120-13 commission actions over the preceding two years that reflect
120-14 changes in the scope of competition in regulated telecommunications
120-15 markets. The report shall also include recommendations to the
120-16 legislature for further legislation that the commission finds
120-17 appropriate to promote the public interest in the context of a
120-18 partially competitive telecommunications market.>
120-19 <(q)> The commission may exempt from any requirement of this
120-20 section an interexchange telecommunications carrier that the
120-21 commission determines does not have a significant effect on the
120-22 public interest, and it may exempt any interexchange carrier which
120-23 solely relies on the facilities of others to complete long distance
120-24 calls if the commission deems this action to be in the public
120-25 interest.
120-26 (j) <(r)> Requirements imposed by Subsections (b), (c), (e),
120-27 (f), (g), (h), (i), and (k) <(c), (d), (l), (m), (n), (o), (p), and
121-1 (q)> of this section on <an> interexchange telecommunications
121-2 carriers who are not certificated local exchange companies
121-3 <carrier> shall apply to other <nondominant> carriers who are not
121-4 certificated local exchange companies <and shall constitute the
121-5 minimum requirements to be imposed by the commission for any
121-6 dominant carrier>.
121-7 (k) The commission shall have exclusive original
121-8 jurisdiction over interexchange telecommunications carriers. For
121-9 purposes of this section, interexchange telecommunications carriers
121-10 (including resellers of interexchange telecommunications services),
121-11 specialized communications common carriers, other resellers of
121-12 communications, other communications carriers who convey, transmit,
121-13 or receive communications in whole or in part over a telephone
121-14 system, and providers of operator services as defined by Section
121-15 18A(a) of this Act (except that subscribers to customer-owned pay
121-16 telephone service shall not be deemed to be telecommunications
121-17 utilities) are telecommunications utilities, but the commission's
121-18 regulatory authority as to them is only as provided by this
121-19 section.
121-20 (c) The following provisions of the Public Utility
121-21 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes) are
121-22 repealed effective September 1, 1995:
121-23 (1) Subsection (i), Section 43;
121-24 (2) Section 43A;
121-25 (3) Section 43B;
121-26 (4) Section 43C;
121-27 (5) Section 61;
122-1 (6) Section 93;
122-2 (7) Section 93B;
122-3 (8) Article XIV; and
122-4 (9) Article XV.
122-5 SECTION 7.03. Until September 1, 1995, the Public Utility
122-6 Commission of Texas shall compute federal income tax expense for
122-7 inclusion in utility rates in a manner that is consistent with the
122-8 normalization rules relating to investment tax credits and
122-9 accelerated depreciation contained in the Internal Revenue Code of
122-10 1986.
122-11 SECTION 7.04. The method of calculating income taxes and the
122-12 treatment of federal income tax expenses and savings for ratemaking
122-13 purposes for investor-owned electric utilities that serve fewer
122-14 than 225,000 customers in at least two states shall be the same as
122-15 the method adopted by the Public Utility Commission of Texas in
122-16 commission rate orders signed and dated between September 1, 1988,
122-17 and September 1, 1992. This section governs all proceedings,
122-18 orders, judgments, and decrees in rate applications relating to
122-19 such investor-owned electric utilities that are pending or are
122-20 subject to or on appeal as of the date of enactment of this Act,
122-21 before any regulatory authority or court, and to all such rate
122-22 applications filed until the Legislature of the State of Texas
122-23 takes action on the study required by Section 7.01 of this Act.
122-24 SECTION 7.05. Article XIII, Public Utility Regulatory Act
122-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
122-26 adding Section 93A to read as follows:
122-27 Sec. 93A. (a) To address telephone calling needs between
123-1 nearby telephone exchanges, the commission shall initiate a
123-2 rulemaking proceeding to approve rules to provide for an expedited
123-3 hearing to allow the expanding of toll free calling areas according
123-4 to the following criteria:
123-5 (1) Toll free calling boundaries may only be expanded
123-6 under this section after the filing of a petition signed by the
123-7 lesser of five percent of the subscribers or 100 subscribers within
123-8 an exchange. If such a petition is filed with the commission, then
123-9 the commission shall order the local exchange company to provide
123-10 for the balloting of its subscribers within the petitioning
123-11 exchange and, if there is an affirmative vote of 70 percent of
123-12 those responding, the commission shall consider the request.
123-13 (2) The commission shall provide for the expansion of
123-14 toll free calling areas for each local exchange customer in the
123-15 petitioning exchange if the petitioning exchange serves not more
123-16 than 10,000 lines and if:
123-17 (A) the petitioning exchange is located within
123-18 22 miles of the exchange requested for toll free calling service;
123-19 or
123-20 (B) the petitioning exchange shares a community
123-21 of interest with the exchange requested for toll free calling
123-22 service. For purposes of this section, "community of interest"
123-23 includes areas that have a relationship because of schools,
123-24 hospitals, local governments, business centers, and other
123-25 relationships the unavailability of which would cause a hardship to
123-26 the residents of the area but need not include an area where the
123-27 affected central offices are more than 50 miles apart.
124-1 (3) The local exchange company shall recover all of
124-2 its costs incurred and all loss of revenue from any expansion of
124-3 toll free calling areas under this section through a request other
124-4 than a revenue requirement showing by: (A) a monthly fee for toll
124-5 free calling service of not more than $3.50 per line for
124-6 residential customers nor more than $7 per line for business
124-7 customers, to be collected from all of the customers in the
124-8 petitioning exchange and only until the local exchange company's
124-9 next general rate case; and/or (B) a monthly fee for toll free
124-10 calling service for all of the local exchange company's local
124-11 exchange service customers in the state in addition to the
124-12 company's current local exchange rates. A local exchange company
124-13 may not recover regulatory case expenses under this section by
124-14 surcharging petitioning exchange subscribers.
124-15 (b) The commission and a local exchange company are not
124-16 required to comply with this section with regard to a petitioning
124-17 exchange or petitioned exchange if:
124-18 (1) the commission determines that there has been a
124-19 good and sufficient showing of a geographic or technological
124-20 infeasibility to serve the area; or
124-21 (2) the local exchange company has less than 10,000
124-22 lines; or
124-23 (3) the petitioning or petitioned exchange is served
124-24 by a cooperative; or
124-25 (4) extended area service or extended metropolitan
124-26 service is currently available between the petitioning and
124-27 petitioned exchanges; or
125-1 (5) the petitioning or petitioned exchange is a
125-2 metropolitan exchange. The commission may expand the toll free
125-3 calling area into an exchange not within a metropolitan exchange
125-4 but within the local calling area contiguous to a metropolitan
125-5 exchange that the commission determines to have a community of
125-6 interest relationship with the petitioning exchange. For the
125-7 purposes of this section, metropolitan exchange, local calling area
125-8 of a metropolitan exchange, and exchange have the same meanings and
125-9 boundaries as currently defined and approved by the commission.
125-10 However, under no circumstances shall a petitioning or petitioned
125-11 exchange be split in the provision of a toll free calling area.
125-12 (c) The commission may, in order to promote the wide
125-13 dispersion of pay telephones, either exempt such telephones from
125-14 the provisions of this section or may change the rates to be
125-15 charged from such telephones in an amount sufficient to promote
125-16 this goal.
125-17 SECTION 7.06. Nothing in this Act shall be construed to
125-18 abrogate any agreement specified in the February 2, 1990,
125-19 Stipulation and Agreement in Public Utility Commission of Texas
125-20 Docket No. 8585/8218 (Stipulation). Any flow through of access
125-21 reductions by an interexchange telecommunications carrier which is
125-22 required by said Stipulation shall provide reductions to each
125-23 affected type of service in the same relative proportion as the
125-24 annual access minutes of use billed to that type of service. Any
125-25 interexchange telecommunications carrier required by the
125-26 Stipulation to flow through access reductions resulting from Docket
125-27 No. 8585/8218 shall deliver revised tariff sheets reflecting such
126-1 flow through, together with supporting documentation, to the Public
126-2 Utility Commission of Texas staff, for review and concurrence,
126-3 within 60 days of implementation of the last rate reduction
126-4 required by said Stipulation.
126-5 ARTICLE 8
126-6 SECTION 8.01. Section 1, Chapter 556, Acts of the 68th
126-7 Legislature, Regular Session, 1983 (Article 9021, Vernon's Texas
126-8 Civil Statutes), is amended by amending Subdivision (1) and adding
126-9 Subdivisions (3) and (4) to read as follows:
126-10 (1) "Equipment" means a line, wire, cable, pipe,
126-11 conduit, conductor, pole, or other facility for transmission of
126-12 community antenna or cable television service or for the provision
126-13 of telecommunications service.
126-14 (3) "Telecommunications common carrier" means a person
126-15 who provides telecommunications service.
126-16 (4) "Telecommunications service" means the electronic
126-17 or optical transmission of information between separate points by a
126-18 prearranged means.
126-19 SECTION 8.02. Section 2, Chapter 556, Acts of the 68th
126-20 Legislature, Regular Session, 1983 (Article 9021, Vernon's Texas
126-21 Civil Statutes), is amended to read as follows:
126-22 Sec. 2. Installation and Maintenance. In any unincorporated
126-23 area in the state, a person in the business of providing community
126-24 antenna or cable television service to the public or of operating
126-25 as a telecommunications common carrier may install and maintain
126-26 equipment through, under, along, across, and over a utility
126-27 easement, a public road, an alley, or a body of public water in the
127-1 state, in accordance with this Act.
127-2 SECTION 8.03. (a) A building owner, building manager, or
127-3 tenant that allows building access to a telecommunications common
127-4 carrier or telecommunications utility for the installation and
127-5 maintenance of telecommunications equipment shall allow building
127-6 access for that purpose to all telecommunications common carriers
127-7 on a nondiscriminatory basis and with reasonable terms and
127-8 conditions.
127-9 (b) A landlord, building owner, or building manager may not
127-10 discriminate between tenants in a rental charge or otherwise on the
127-11 basis that a particular telecommunications carrier is serving or is
127-12 not serving a tenant.
127-13 (c) In this section:
127-14 (1) "Telecommunications common carrier" means a person
127-15 who provides telecommunications service.
127-16 (2) "Telecommunications service" means the electronic
127-17 or optical transmission of information between separate points by a
127-18 prearranged means.
127-19 ARTICLE 9
127-20 SECTION 9.01. Section 112, Public Utility Regulatory Act
127-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
127-22 as follows:
127-23 Sec. 112. This article does not apply to the use of an ADAD
127-24 to make a telephone call:
127-25 (1) relating to an emergency or a public service under
127-26 a program developed or approved by the emergency management
127-27 coordinator of the county in which the call was received; <or>
128-1 (2) made by a public or private primary or secondary
128-2 school system to locate or account for a truant student;
128-3 (3) in response to the express request of the
128-4 consumer;
128-5 (4) primarily in connection with an existing debt or
128-6 contract for which payment or performance has not been completed at
128-7 the time of the call; or
128-8 (5) to a consumer with whom the telephone solicitor
128-9 has a prior or existing business relationship.
128-10 ARTICLE 10
128-11 SECTION 10.01. Except as otherwise provided by this Act,
128-12 this Act takes effect September 1, 1993.
128-13 SECTION 10.02. The importance of this legislation and the
128-14 crowded condition of the calendars in both houses create an
128-15 emergency and an imperative public necessity that the
128-16 constitutional rule requiring bills to be read on three several
128-17 days in each house be suspended, and this rule is hereby suspended,
128-18 and that this Act take effect and be in force according to its
128-19 terms, and it is so enacted.