By: Parker S.B. No. 498
73R871 CBH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to continuation, operations, and functions of the Public
1-3 Utility Commission of Texas and the Office of Public Utility
1-4 Counsel; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1.01. Section 3, Public Utility Regulatory Act
1-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
1-9 amending Subdivisions (a), (c), (u), and (v), and adding
1-10 Subdivision (f) to read as follows:
1-11 (a) The term "person," when used in this Act, includes
1-12 natural persons, partnerships of two or more persons having a joint
1-13 or common interest, mutual or cooperative associations, <water
1-14 supply or sewer service corporations,> and corporations, as herein
1-15 defined.
1-16 (c) The term "public utility" or "utility," when used in
1-17 this Act, includes any person, corporation, river authority,
1-18 cooperative corporation, or any combination thereof, other than a
1-19 municipal corporation <or a water supply or sewer service
1-20 corporation>, or their lessees, trustees, and receivers, now or
1-21 hereafter owning or operating for compensation in this state
1-22 equipment or facilities for:
1-23 (1) producing, generating, transmitting, distributing,
1-24 selling, or furnishing electricity ("electric utilities"
2-1 hereinafter) provided, however, that this definition shall not be
2-2 construed to apply to or include a qualifying small power producer
2-3 or qualifying cogenerator, as defined in Sections 3(17)(D) and
2-4 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
2-5 796(17)(D) and 796(18)(C));
2-6 (2)(A) the conveyance, transmission, or reception of
2-7 communications over a telephone system as a dominant carrier as
2-8 hereinafter defined ("telecommunications utilities" hereinafter);
2-9 provided that no person or corporation not otherwise a public
2-10 utility within the meaning of this Act shall be deemed such solely
2-11 because of the furnishing or furnishing and maintenance of a
2-12 private system or the manufacture, distribution, installation, or
2-13 maintenance of customer premise communications equipment and
2-14 accessories; and provided further that nothing in this Act shall be
2-15 construed to apply to telegraph services, television stations,
2-16 radio stations, community antenna television services, or
2-17 radio-telephone services that may be authorized under the Public
2-18 Mobile Radio Services rules of the Federal Communications
2-19 Commission, other than such radio-telephone services provided by
2-20 wire-line telephone companies under the Domestic Public Land Mobile
2-21 Radio Service and Rural Radio Service rules of the Federal
2-22 Communications Commission; and provided further that interexchange
2-23 telecommunications carriers (including resellers of interexchange
2-24 telecommunications services), specialized communications common
2-25 carriers, other resellers of communications, other communications
2-26 carriers who convey, transmit, or receive communications in whole
2-27 or in part over a telephone system, and providers of operator
3-1 services as defined in Section 18A(a) of this Act (except that
3-2 subscribers to customer-owned pay telephone service shall not be
3-3 deemed to be telecommunications utilities) who are not dominant
3-4 carriers are also telecommunications utilities, but the
3-5 commission's regulatory authority as to them is only as hereinafter
3-6 defined;
3-7 (B) "dominant carrier" when used in this Act
3-8 means (i) a provider of any particular communication service which
3-9 is provided in whole or in part over a telephone system who as to
3-10 such service has sufficient market power in a telecommunications
3-11 market as determined by the commission to enable such provider to
3-12 control prices in a manner adverse to the public interest for such
3-13 service in such market; and (ii) any provider of local exchange
3-14 telephone service within a certificated exchange area as to such
3-15 service. A telecommunications market shall be statewide until
3-16 January 1, 1985. After this date the commission may, if it
3-17 determines that the public interest will be served, establish
3-18 separate markets within the state. Prior to January 1, 1985, the
3-19 commission shall hold such hearings and require such evidence as is
3-20 necessary to carry out the public purpose of this Act and to
3-21 determine the need and effect of establishing separate markets.
3-22 Any such provider determined to be a dominant carrier as to a
3-23 particular telecommunications service in a market shall not be
3-24 presumed to be a dominant carrier of a different telecommunications
3-25 service in that market.
3-26 (3) The term "public utility" or "utility" shall not
3-27 include any person or corporation not otherwise a public utility
4-1 that furnishes the services or commodity described in any paragraph
4-2 of this subsection only to itself, its employees, or tenants as an
4-3 incident of such employee service or tenancy, when such service or
4-4 commodity is not resold to or used by others. The term "electric
4-5 utility" shall not include any person or corporation not otherwise
4-6 a public utility that owns or operates in this state equipment or
4-7 facilities for producing, generating, transmitting, distributing,
4-8 selling, or furnishing electric energy to an electric utility, if
4-9 the equipment or facilities are used primarily for the production
4-10 and generation of electric energy for consumption by the person or
4-11 corporation. The term "public utility," "utility," or "electric
4-12 utility" shall not include any person or corporation not otherwise
4-13 a public utility that owns or operates in this state a recreational
4-14 vehicle park that provides metered electric service in accordance
4-15 with Article 1446d-2, Revised Statutes. A recreational vehicle
4-16 park owner is considered a public utility if the owner fails to
4-17 comply with Article 1446d-2, Revised Statutes, with regard to the
4-18 metered sale of electricity at the recreational vehicle park.
4-19 (f) "Office" means the Office of Public Utility Counsel.
4-20 (u) <"Water supply or sewer service corporation" means a
4-21 nonprofit, member-owned corporation organized and operating under
4-22 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933,
4-23 as amended (Article 1434a, Vernon's Texas Civil Statutes).>
4-24 <(v)> "Local exchange company" means a telecommunications
4-25 utility certificated to provide local exchange service within the
4-26 state.
4-27 SECTION 1.02. Section 5, Public Utility Regulatory Act
5-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-2 as follows:
5-3 Sec. 5. A commission, to be known as the "Public Utility
5-4 Commission of Texas" is hereby created. It shall consist of three
5-5 commissioners, who shall be appointed to staggered, six-year terms
5-6 by the governor, with the advice and consent of two-thirds of the
5-7 members of the senate present, and who shall have and exercise the
5-8 jurisdiction and powers herein conferred upon the commission. Each
5-9 commissioner shall hold office until his successor is appointed and
5-10 qualified. The governor shall designate a member of the commission
5-11 as the chairman of the commission to serve in that capacity at the
5-12 pleasure of the governor <At its first meeting following the
5-13 biennial appointment and qualification of a commissioner, the
5-14 commission shall elect one of the commissioners chairman>.
5-15 Appointments to the commission shall be made without regard to the
5-16 race, color, handicap <creed>, sex, religion, age, or national
5-17 origin of the appointees.
5-18 SECTION 1.03. Section 5a, Public Utility Regulatory Act
5-19 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-20 as follows:
5-21 Sec. 5a. The Public Utility Commission of Texas and the
5-22 Office of Public Utility Counsel are subject to Chapter 325,
5-23 Government Code (Texas Sunset Act). Unless continued in existence
5-24 as provided by that chapter, the commission and the office <Office
5-25 of Public Utility Counsel> are abolished and this Act expires
5-26 September 1, 2001 <1993>.
5-27 SECTION 1.04. Section 6, Public Utility Regulatory Act
6-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
6-2 amending Subsections (a), (b), and (k), and by adding Subsections
6-3 (g), (l), (m), and (n) to read as follows:
6-4 (a) To be eligible for appointment as a commissioner, a
6-5 person must be a qualified voter, not less than 30 years of age, a
6-6 citizen of the United States, and a resident of the State of Texas.
6-7 No person is eligible for appointment as a commissioner if at any
6-8 time during the two-year period immediately preceding his
6-9 appointment he personally served as an officer, director, owner,
6-10 employee, partner, or legal representative of any public utility or
6-11 any affiliated interest, or he owned or controlled, directly or
6-12 indirectly, stocks or bonds of any class with a value of $10,000,
6-13 or more in a public utility or any affiliated interest. Each
6-14 commissioner shall qualify for office by taking the oath prescribed
6-15 for other state officers and shall execute a bond for $5,000
6-16 payable to the state and conditioned on the faithful performance of
6-17 his duties. A person may not serve as a member of the commission
6-18 or act as the legal counsel to the commission if the person is
6-19 required to register as a lobbyist under Chapter 305, Government
6-20 Code, and its subsequent amendments, because of the person's
6-21 activities for compensation on behalf of a profession related to
6-22 the operation of the commission <who is required to register as a
6-23 lobbyist under Chapter 305, Government Code, may not serve as a
6-24 member of the commission or public utility counsel or act as the
6-25 general counsel to the commission>.
6-26 (b) No commissioner or employee of the commission may do any
6-27 of the following during his period of service with the commission:
7-1 (1) have any pecuniary interest, either as an officer,
7-2 director, partner, owner, employee, attorney, consultant, or
7-3 otherwise, in any public utility or affiliated interest, or in any
7-4 person or corporation or other business entity a significant
7-5 portion of whose business consists of furnishing goods or services
7-6 to public utilities or affiliated interests, but not including a
7-7 nonprofit group or association solely supported by gratuitous
7-8 contributions of money, property or services, other than a Texas
7-9 trade association as defined by Subsection (n) of this section;
7-10 (2) own or control any securities in a public utility
7-11 or affiliated interest, either directly or indirectly;
7-12 (3) accept any gift, gratuity, or entertainment
7-13 whatsoever from any public utility or affiliated interest, or from
7-14 any person, corporation, agent, representative, employee, or other
7-15 business entity a significant portion of whose business consists of
7-16 furnishing goods or services to public utilities or affiliated
7-17 interests, or from any agent, representative, attorney, employee,
7-18 officer, owner, director, or partner of any such business entity or
7-19 of any public utility or affiliated interest; provided, however,
7-20 that the receipt and acceptance of any gifts, gratuities, or
7-21 entertainment after termination of service with the commission
7-22 whose cumulative value in any one-year period is less than $100
7-23 shall not constitute a violation of this Act.
7-24 (g) All members must be representatives of the general
7-25 public. A person is not eligible for appointment as a public
7-26 member of the commission if:
7-27 (1) the person serves on the board of directors of a
8-1 company that supplies fuel, services, or products to regulated or
8-2 unregulated electric or telecommunications utilities; or
8-3 (2) the person or the person's spouse:
8-4 (A) is employed by or participates in the
8-5 management of a business entity or other organization regulated by
8-6 the commission or receiving funds from the commission;
8-7 (B) owns or controls, directly or indirectly,
8-8 more than a 10 percent interest in a business entity or other
8-9 organization regulated by the commission or receiving funds from
8-10 the commission; or
8-11 (C) uses or receives a substantial amount of
8-12 tangible goods, services, or funds from the commission, other than
8-13 compensation or reimbursement authorized by law for commission
8-14 membership, attendance, or expenses.
8-15 (k) The commission shall provide to <require> its members
8-16 and employees, <to read this section and> as often as necessary,
8-17 <shall provide> information regarding their qualification for
8-18 office or employment under this Act and their responsibilities
8-19 under applicable laws relating to standards of conduct for state
8-20 officers or <and> employees.
8-21 (l) An officer, employee, or paid consultant of a Texas
8-22 trade association in the field of public utilities may not be a
8-23 member or employee of the commission who is exempt from the state's
8-24 position classification plan or is compensated at or above the
8-25 amount prescribed by the General Appropriations Act for step 1,
8-26 salary group 17, of the position classification salary schedule.
8-27 (m) A person who is a spouse of an officer, manager, or paid
9-1 consultant of a Texas trade association in the field of public
9-2 utilities may not be a commission member and may not be a
9-3 commission employee who is exempt from the state's position
9-4 classification plan or is compensated at or above the amount
9-5 prescribed by the General Appropriations Act for step 1, salary
9-6 group 17, of the position classification salary schedule.
9-7 (n) For the purposes of this section, a Texas trade
9-8 association is a nonprofit, cooperative, and voluntarily joined
9-9 association of business or professional persons who are employed by
9-10 public utilities in this state to assist the public utility
9-11 industry or its employees in dealing with mutual business or
9-12 professional problems and in promoting their common interest.
9-13 SECTION 1.05. Section 6A, Public Utility Regulatory Act
9-14 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
9-15 as follows:
9-16 Sec. 6A. (a) It is a ground for removal from the commission
9-17 if a member:
9-18 (1) does not have at the time of appointment the
9-19 qualifications required by Section 6 of this Act; <for appointment
9-20 to the commission; or>
9-21 (2) does not maintain during <the> service on the
9-22 commission the qualifications required by Section 6 of this Act;
9-23 (3) violates a prohibition established by Section 6 of
9-24 this Act;
9-25 (4) cannot discharge the member's duties for a
9-26 substantial part of the term for which the member is appointed
9-27 because of illness or disability; or
10-1 (5) is absent from more than half of the regularly
10-2 scheduled commission meetings that the member is eligible to attend
10-3 during a calendar year unless the absence is excused by majority
10-4 vote of the commission <for appointment to the commission>.
10-5 (b) The validity of an action of the commission is not
10-6 affected by the fact that it is <was> taken when a ground for
10-7 removal of a <member of the> commission member exists <existed>.
10-8 (c) If the executive director has knowledge that a potential
10-9 ground for removal exists, the executive director shall notify the
10-10 chairman of the commission of the ground. The chairman shall then
10-11 notify the governor that a potential ground for removal exists.
10-12 SECTION 1.06. Sections 8(a), (d), (e), and (f), Public
10-13 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
10-14 Statutes), are amended to read as follows:
10-15 (a) The commission shall employ an executive director, a
10-16 general counsel, and such officers<, administrative law judges,
10-17 hearing examiners, investigators, lawyers, engineers, economists,
10-18 consultants, statisticians, accountants, administrative assistants,
10-19 inspectors, clerical staff,> and other employees as it deems
10-20 necessary to carry out the provisions of this Act. All employees
10-21 receive such compensation as is fixed by the legislature. The
10-22 commission shall develop and implement policies that clearly define
10-23 the respective responsibilities of the commission and the staff of
10-24 the commission.
10-25 (d) <The commission shall employ administrative law judges
10-26 to preside at hearings of major importance before the commission.
10-27 An administrative law judge must be a licensed attorney with not
11-1 less than five years' general experience or three years' experience
11-2 in utility regulatory law. The administrative law judge shall
11-3 perform his duties independently from the commission.>
11-4 <(e)> The executive director or the executive director's
11-5 <his> designee shall develop an intra-agency <intraagency> career
11-6 ladder program. The program shall require intra-agency posting of
11-7 all nonentry level positions concurrently with any public posting<,
11-8 one part of which shall be the intraagency posting of all nonentry
11-9 level positions for at least 10 days before any public posting>.
11-10 The executive director or the executive director's <his> designee
11-11 shall develop a system of annual performance evaluations <based on
11-12 measurable job tasks>. All merit pay for commission employees must
11-13 be based on the system established under this section.
11-14 (e) <(f)> The executive director or the executive director's
11-15 <his/her> designee shall prepare and maintain a written policy
11-16 statement <plan> to assure implementation of a program of equal
11-17 employment opportunity under which <whereby> all personnel
11-18 transactions are made without regard to race, color, handicap
11-19 <disability>, sex, religion, age, or national origin. The policy
11-20 statement must <plans shall> include:
11-21 (1) personnel policies, including policies relating to
11-22 recruitment, evaluation, selection, appointment, training, and
11-23 promotion of personnel <a comprehensive analysis of all the
11-24 agency's work force by race, sex, ethnic origin, class of position,
11-25 and salary or wage>;
11-26 (2) a comprehensive analysis of the commission work
11-27 force that meets federal and state guidelines <plans for
12-1 recruitment, evaluation, selection, appointment, training,
12-2 promotion, and other personnel policies>;
12-3 (3) procedures by which a determination can be made of
12-4 significant underuse in the commission work force of all persons
12-5 for whom federal or state guidelines encourage a more equitable
12-6 balance <steps reasonably designed to overcome any identified
12-7 underutilization of minorities and women in the agency's work
12-8 force>; and
12-9 (4) reasonable methods to appropriately address those
12-10 areas of significant underuse.
12-11 (f) A policy statement prepared under Subsection (e) of this
12-12 section must <objectives and goals, timetables for the achievement
12-13 of the objectives and goals, and assignments of responsibility for
12-14 their achievement.>
12-15 <The plans shall be filed with the governor's office within
12-16 60 days of the effective date of this Act,> cover an annual period,
12-17 <and> be updated at least annually, and be filed with the
12-18 governor's office.
12-19 (g) The governor's office shall deliver a biennial report to
12-20 the legislature based on the information received under Subsection
12-21 (f). The report may be made separately or as a part of other
12-22 biennial reports made to the legislature<. Progress reports shall
12-23 be submitted to the governor's office within 30 days of November 1
12-24 and April 1 of each year and shall include the steps the agency has
12-25 taken within the reporting period to comply with these
12-26 requirements>.
12-27 SECTION 1.07. Section 10, Public Utility Regulatory Act
13-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
13-2 as follows:
13-3 Sec. 10. (a) The principal office of the commission shall
13-4 be located in the City of Austin, Texas, and shall be open daily
13-5 during the usual business hours, Saturdays, Sundays, and legal
13-6 holidays excepted. The commission shall hold meetings at its
13-7 office and at such other convenient places in the state as shall be
13-8 expedient and necessary for the proper performance of its duties.
13-9 (b) The commission shall develop and implement policies that
13-10 provide the public with a reasonable opportunity to appear before
13-11 the commission and to speak on any issue under the jurisdiction of
13-12 the commission.
13-13 SECTION 1.08. Section 14(a), Public Utility Regulatory Act
13-14 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
13-15 as follows:
13-16 (a) The commission shall file annually with the governor and
13-17 the presiding officer of each house of the legislature a complete
13-18 and detailed written report accounting for all funds received and
13-19 disbursed by the commission during the preceding fiscal year. The
13-20 annual report must be in the form and reported in the time provided
13-21 by the General Appropriations Act <publish an annual report to the
13-22 governor, summarizing its proceedings, listing its receipts and the
13-23 sources of its receipts, listing its expenditures and the nature of
13-24 such expenditures, and setting forth such other information
13-25 concerning the operations of the commission and the public utility
13-26 industry as it considers of general interest>.
13-27 SECTION 1.09. Section 14A, Public Utility Regulatory Act
14-1 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
14-2 as follows:
14-3 Sec. 14A. (a) The commission shall prepare information of
14-4 public <consumer> interest describing the <regulatory> functions of
14-5 the commission and <describing> the commission's procedures by
14-6 which <consumer> complaints are filed with and resolved by the
14-7 commission. The commission shall make the information available to
14-8 the <general> public and appropriate state agencies.
14-9 (b) The commission by rule shall establish methods by which
14-10 consumers and service recipients are notified of the name, mailing
14-11 address, and telephone number of the commission for the purpose of
14-12 directing complaints to the commission. The commission may provide
14-13 for that notification:
14-14 (1) on each registration form, application, or written
14-15 contract for services of an individual or entity regulated under
14-16 this Act or of an entity the creation of which is authorized by
14-17 this Act;
14-18 (2) on a sign prominently displayed in the place of
14-19 business of each individual or entity regulated under this Act or
14-20 of an entity the creation of which is authorized by this Act; or
14-21 (3) in a bill for service provided by an individual or
14-22 entity regulated under this Act or by an entity the creation of
14-23 which is authorized by this Act.
14-24 (c) The commission shall prepare and maintain a written plan
14-25 that describes how a person who does not speak English can be
14-26 provided reasonable access to the commission's programs. The
14-27 commission shall also comply with federal and state laws for
15-1 program and facility accessibility.
15-2 SECTION 1.10. Sections 83(a) and (b), Public Utility
15-3 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
15-4 amended to read as follows:
15-5 (a) Any affected person may complain to the regulatory
15-6 authority in writing setting forth any act or thing done or omitted
15-7 to be done by any public utility in violation or claimed violation
15-8 of any law which the regulatory authority has jurisdiction to
15-9 administer, or of any order, ordinance, rule, or regulation of the
15-10 regulatory authority. The commission shall keep an information
15-11 file about each complaint filed with the commission that the
15-12 commission has authority to resolve <relating to a utility>. The
15-13 commission shall retain the file for a reasonable period.
15-14 (b) If a written complaint is filed with the commission that
15-15 the commission has authority to resolve <relating to a utility>,
15-16 the commission, at least <as frequently as> quarterly and until
15-17 final disposition of the complaint, shall notify the parties to the
15-18 complaint of the status of the complaint unless the notice would
15-19 jeopardize an undercover investigation.
15-20 SECTION 1.11. The changes in law made by this article
15-21 relating to the requirements for membership on the Public Utility
15-22 Commission of Texas apply only to an appointment made on or after
15-23 the effective date of this Act, and do not affect the entitlement
15-24 of a member serving on the commission on August 31, 1993, to
15-25 continue to hold office for the remainder of the term for which the
15-26 person was appointed.
15-27 ARTICLE 2
16-1 SECTION 2.01. Article II, Public Utility Regulatory Act
16-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
16-3 adding Section 5b to read as follows:
16-4 Sec. 5b. The commission is subject to the requirements of
16-5 Article 13, State Purchasing and General Services Act (Article
16-6 601b, Vernon's Texas Civil Statutes), and its subsequent
16-7 amendments.
16-8 SECTION 2.02. Sections 6(i) and (j), Public Utility
16-9 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
16-10 amended to read as follows:
16-11 (i) No commissioner shall within two years, and no employee
16-12 of the commission or of the State Office of Administrative Hearings
16-13 involved in hearing utility cases shall, within one year after his
16-14 employment with the commission or the State Office of
16-15 Administrative Hearings has ceased, be employed by a public utility
16-16 which was in the scope of the commissioner's or employee's official
16-17 responsibility while the commissioner or employee was associated
16-18 with the commission or the State Office of Administrative Hearings.
16-19 (j) During the time a commissioner or employee of the
16-20 commission or of the State Office of Administrative Hearings
16-21 involved in hearing utility cases is associated with the commission
16-22 or the State Office of Administrative Hearings or at any time
16-23 after, the commissioner or employee may not represent a person,
16-24 corporation, or other business entity before the commission, the
16-25 State Office of Administrative Hearings, or a court in a matter in
16-26 which the commissioner or employee was personally involved while
16-27 associated with the commission or the State Office of
17-1 Administrative Hearings or a matter that was within the
17-2 commissioner's or employee's official responsibility while the
17-3 commissioner or employee was associated with the commission or the
17-4 State Office of Administrative Hearings.
17-5 SECTION 2.03. Article III, Public Utility Regulatory Act
17-6 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
17-7 amending Sections 8(b) and (c) and adding Section 8A to read as
17-8 follows:
17-9 (b) The executive director is responsible for the
17-10 day-to-day operations of the agency and shall coordinate the
17-11 activities of commission employees. The executive director shall
17-12 coordinate with the general counsel in providing assistance and
17-13 technical advice to the commissioners in evaluating the evidence
17-14 and recommendations offered by the utility division of the State
17-15 Office of Administrative Hearings <commission shall employ the
17-16 following:>
17-17 <(1) an executive director;>
17-18 <(2) a director of hearings who has wide experience in
17-19 utility regulation and rate determination;>
17-20 <(3) a chief engineer who is a registered engineer and
17-21 an expert in public utility engineering and rate matters;>
17-22 <(4) a chief accountant who is a certified public
17-23 accountant, experienced in public utility accounting;>
17-24 <(5) a director of research who is experienced in the
17-25 conduct of analyses of industry, economics, energy, fuel, and other
17-26 related matters that the commission may want to undertake;>
17-27 <(6) a director of consumer affairs and public
18-1 information;>
18-2 <(7) a director of utility evaluation;>
18-3 <(8) a director of energy conservation; and>
18-4 <(9) a general counsel>.
18-5 (c) The <general counsel and his staff are responsible for
18-6 the gathering of information relating to all matters within the
18-7 authority of the commission.>
18-8 <The> duties of the general counsel and commission staff
18-9 include:
18-10 (1) accumulation of <evidence and other> information
18-11 from public utilities and from within <the accounting and technical
18-12 and other staffs of> the commission and from other sources for the
18-13 purposes specified herein;
18-14 (2) provision of legal advice and counsel to the
18-15 commission, executive director, and staff as a nonadvocate in any
18-16 case before the commission <preparation and presentation of such
18-17 evidence before the commission or its appointed examiner in
18-18 proceedings>;
18-19 (3) conduct of investigations of public utilities
18-20 under the jurisdiction of the commission;
18-21 (4) preparation of proposed changes in the rules of
18-22 the commission;
18-23 (5) preparation of recommendations that the commission
18-24 undertake investigation of any matter within its authority;
18-25 (6) preparation of recommendations and a report of
18-26 such staff for inclusion in the annual report of the commission;
18-27 and
19-1 (7) <protection and representation of the public
19-2 interest and coordination and direction of the preparation and
19-3 presentation of evidence from the commission staff in all cases
19-4 before the commission as necessary to effect the objectives and
19-5 purposes stated in this Act and ensure protection of the public
19-6 interest; and>
19-7 <(8)> such other activities as are reasonably
19-8 necessary to enable the staff <him> to perform its <his> duties.
19-9 Sec. 8A. (a) In addition to the other duties prescribed by
19-10 this Act, the general counsel and commission staff shall provide
19-11 technical assistance to the commissioners and administrative law
19-12 judges. Except as provided by Subsection (f) of this section, the
19-13 general counsel or a member of the staff may not testify in a
19-14 hearing in a case before the commission unless the administrative
19-15 law judge, after directing the parties to complete the record,
19-16 determines that the additional testimony is necessary to complete
19-17 the record. The general counsel or a member of the staff shall
19-18 remain impartial and may not be a proponent or opponent of an issue
19-19 to be decided.
19-20 (b) Except as otherwise specifically provided by this Act,
19-21 the general counsel and the staff may not be an advocate or a party
19-22 separate from the commission in any proceeding under the
19-23 jurisdiction of the commission. This subsection does not affect
19-24 the authority of the commission to enforce this Act or the
19-25 authority of the general counsel or the staff to handle
19-26 administrative and enforcement actions such as administrative
19-27 penalties and complaints. However, if the administrative or
20-1 enforcement action results in a docketed case, the general counsel
20-2 and staff may not participate in the case as a party separate from
20-3 the commission or as an advocate.
20-4 (c) The staff, on request of a commissioner or
20-5 administrative law judge, shall audit, analyze, examine, review,
20-6 and investigate:
20-7 (1) rates and charges;
20-8 (2) services provided;
20-9 (3) evidence admitted during a proceeding; and
20-10 (4) any other matter within the commission's
20-11 jurisdiction.
20-12 (d) The general counsel and staff shall provide technical
20-13 analytical commentary on evidence admitted into the record in a
20-14 proceeding before the commission. Except as required under
20-15 Subsection (a) of this section, the general counsel and staff may
20-16 not offer or consider evidence that is not in the record.
20-17 (e) Commentary prepared by the general counsel or staff on a
20-18 matter before the commission is for the use of the commissioners
20-19 and administrative law judge and is confidential and not subject to
20-20 subpoena or discovery unless:
20-21 (1) the commission or an administrative law judge
20-22 admits the commentary into the record of the proceeding; or
20-23 (2) the commission agrees to disclose the commentary.
20-24 (f) If an audit, report, or commentary is admitted into the
20-25 record of a proceeding, the person who prepared the audit, report,
20-26 or commentary:
20-27 (1) may testify as to the contents of the audit,
21-1 report, or commentary and may be cross-examined by any party in
21-2 relation to the audit, report, or commentary; and
21-3 (2) may not provide additional technical or analytical
21-4 commentary to the commission during the proceedings on that matter.
21-5 (g) The general counsel and a member of the staff may not
21-6 directly or indirectly initiate, allow, or consider ex parte
21-7 communications concerning a matter before the commission with any
21-8 person other than:
21-9 (1) a commissioner;
21-10 (2) an administrative law judge; or
21-11 (3) a commission employee who has not participated in
21-12 a hearing related to the matter, but only for the purpose of using
21-13 that employee's special skills or knowledge to fulfill the staff
21-14 member's duties.
21-15 (h) This section does not affect the right of other parties
21-16 to appear and participate in a matter before the commission.
21-17 SECTION 2.04. (a) Article II, Public Utility Regulatory Act
21-18 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
21-19 amending Section 15A and adding Section 15B to read as follows:
21-20 Sec. 15A. (a) The independent Office of Public Utility
21-21 Counsel is hereby established to represent the interests of
21-22 residential and small commercial consumers.
21-23 (b) The chief executive of the office <Office of Public
21-24 Utility Counsel> is the public utility counsel, hereinafter
21-25 referred to as counsellor. The counsellor is appointed by the
21-26 governor with the advice and consent of the senate to a two-year
21-27 term that expires on February 1 of the final year of the term.
22-1 Appointment of the public utility counsel shall be made without
22-2 regard to the race, color, handicap, sex, religion, age, or
22-3 national origin of the appointee <Immediately after this section
22-4 takes effect, the governor shall, with the advice and consent of
22-5 the senate, appoint the public utility counsel>.
22-6 (c) The counsellor may employ such lawyers, economists,
22-7 engineers, consultants, statisticians, accountants, clerical staff,
22-8 and other employees as he or she deems necessary to carry out the
22-9 provisions of this section. All employees shall receive such
22-10 compensation as is fixed by the legislature from the assessment
22-11 imposed by Section 78 of this Act. The public utility counsel or
22-12 the counsellor's designee shall develop an intra-agency career
22-13 ladder program. The program shall require intra-agency postings of
22-14 all nonentry level positions concurrently with any public posting.
22-15 The public utility counsel or the counsellor's designee shall
22-16 develop a system of annual performance evaluations. All merit pay
22-17 for office employees must be based on the system established under
22-18 this subsection. The office shall provide to the public utility
22-19 counsel and its employees, as often as necessary, information
22-20 regarding their qualification for office or employment under this
22-21 Act and their responsibilities under applicable laws relating to
22-22 standards of conduct for state officers or employees.
22-23 (d) The counsellor shall be a resident of Texas and admitted
22-24 to the practice of law in this state who has demonstrated a strong
22-25 commitment and involvement in efforts to safeguard the rights of
22-26 the public and possesses the knowledge and experience necessary to
22-27 practice effectively in utility proceedings. A person is not
23-1 eligible for appointment as public utility counsel if the person or
23-2 the person's spouse:
23-3 (1) is employed by or participates in the management
23-4 of a business entity or other organization regulated by the
23-5 commission or receiving funds from the commission;
23-6 (2) owns or controls, directly or indirectly, more
23-7 than a 10 percent interest in a business entity or other
23-8 organization regulated by the commission or receiving funds from
23-9 the commission or the office; or
23-10 (3) uses or receives a substantial amount of tangible
23-11 goods, services, or funds from the commission or the office, other
23-12 than compensation or reimbursement authorized by law for commission
23-13 or counsellor membership, attendance, or expenses.
23-14 (e) A person may not serve as counsellor or act as the
23-15 general counsel for the office if the person is required to
23-16 register as a lobbyist under Chapter 305, Government Code, because
23-17 of the person's activities for compensation related to the
23-18 operation of the commission or the office.
23-19 (f) An officer, employee, or paid consultant of a Texas
23-20 trade association in the field of public utilities may not serve as
23-21 the counsellor or be an employee of the office who is exempt from
23-22 the state's position classification plan or is compensated at or
23-23 above the amount prescribed by the General Appropriations Act for
23-24 step 1, salary group 17, of the position classification salary
23-25 schedule. A person who is the spouse of an officer, manager, or
23-26 paid consultant of a Texas trade association in the field of public
23-27 utilities may not serve as counsellor and may not be an office
24-1 employee who is exempt from the state's position classification
24-2 plan or is compensated at or above the amount prescribed by the
24-3 General Appropriations Act for step 1, salary group 17, of the
24-4 position classification salary schedule. For the purposes of this
24-5 subsection, a Texas trade association is a nonprofit, cooperative,
24-6 and voluntarily joined association of business or professional
24-7 persons who are employed by public utilities in this state to
24-8 assist the public utility industry or its employees in dealing with
24-9 mutual business or professional problems and in promoting their
24-10 common interest.
24-11 (g) During the period of the counsellor's employment and for
24-12 a period of two years following the termination of employment, it
24-13 shall be unlawful for any person employed as counsellor to have a
24-14 direct or indirect interest in any utility company regulated under
24-15 the Public Utility Regulatory Act, to provide legal services
24-16 directly or indirectly to or be employed in any capacity by a
24-17 utility company regulated under the Public Utility Regulatory Act,
24-18 its parent, or its subsidiary companies, corporations, or
24-19 cooperatives; but such person may otherwise engage in the private
24-20 practice of law after the termination of employment as the
24-21 counsellor. It is a ground for removal from office if the
24-22 counsellor:
24-23 (1) does not have at the time of appointment the
24-24 qualifications required by this section;
24-25 (2) does not maintain during service as counsellor the
24-26 qualifications required by this section;
24-27 (3) violates a prohibition established by this
25-1 section; or
25-2 (4) cannot discharge the counsellor's duties for a
25-3 substantial part of the term for which the counsellor is appointed
25-4 because of illness or disability.
25-5 (h) The validity of an action of the office is not affected
25-6 by the fact that it is taken when a ground for removal of the
25-7 counsellor exists.
25-8 (i) The office shall file annually with the governor and the
25-9 presiding officer of each house of the legislature a complete and
25-10 detailed written report accounting for all funds received and
25-11 disbursed by the office during the preceding fiscal year. The
25-12 annual report must be in the form and reported in the time provided
25-13 by the General Appropriations Act.
25-14 (j) The office shall prepare information of public interest
25-15 describing the functions of the office. The office shall make the
25-16 information available to the public and appropriate state agencies.
25-17 (k) The counsellor or the counsellor's designee shall
25-18 prepare and maintain a written policy statement to assure
25-19 implementation of a program of equal employment opportunity under
25-20 which all personnel transactions are made without regard to race,
25-21 color, handicap, sex, religion, age, or national origin. The
25-22 policy statement must include:
25-23 (1) personnel policies, including policies relating to
25-24 recruitment, evaluation, selection, appointment, training, and
25-25 promotion of personnel;
25-26 (2) a comprehensive analysis of the office work force
25-27 that meets federal and state guidelines;
26-1 (3) procedures by which a determination can be made of
26-2 significant underuse in the office work force of all persons for
26-3 whom federal or state guidelines encourage a more equitable
26-4 balance; and
26-5 (4) reasonable methods to appropriately address those
26-6 areas of significant underuse.
26-7 (l) A policy statement prepared under Subsection (k) of this
26-8 section must cover an annual period, be updated at least annually,
26-9 and be filed with the governor's office. The governor's office
26-10 shall deliver a biennial report to the legislature based on the
26-11 information received under this subsection. The report may be made
26-12 separately or as a part of other biennial reports made to the
26-13 legislature.
26-14 (m) The office shall prepare and maintain a written plan
26-15 that describes how a person who does not speak English can be
26-16 provided reasonable access to the office's programs. The office
26-17 shall also comply with federal and state laws for program and
26-18 facility accessibility.
26-19 (n) The office is subject to the requirements of Article 13,
26-20 State Purchasing and General Services Act (Article 601b, Vernon's
26-21 Texas Civil Statutes), and its subsequent amendments.
26-22 Sec. 15B. (a) <(f)> The Office of Public Utility Counsel:
26-23 (1) shall assess the impact of utility rate changes
26-24 and other regulatory actions on residential consumers in the State
26-25 of Texas and shall be an advocate in its own name of positions most
26-26 advantageous to a substantial number of such consumers as
26-27 determined by the counsellor;
27-1 (2) shall <may> appear or intervene as a matter of
27-2 right as a party or otherwise on behalf of residential consumers,
27-3 as a class, in all proceedings before the commission that affect
27-4 residential consumers <commission>;
27-5 (3) to the extent otherwise authorized by this Act,
27-6 may accumulate evidence and other information from public utilities
27-7 and from the accounting, technical, and other staffs of the
27-8 commission and from other sources for the purposes of this Act;
27-9 (4) shall prepare and present the evidence before the
27-10 commission or an administrative law judge in proceedings;
27-11 (5) shall prepare recommendations that the commission
27-12 undertake an investigation of any matter within the commission's
27-13 authority;
27-14 (6) may appear or intervene as a matter of right as a
27-15 party or otherwise on behalf of small commercial consumers, as a
27-16 class, in all proceedings where it is deemed by the counsel that
27-17 small commercial consumers are in need of representation;<.>
27-18 (7) <(4)> may initiate or intervene as a matter of
27-19 right or otherwise appear in any judicial proceedings involving or
27-20 arising out of any action taken by an administrative agency in a
27-21 proceeding in which the counsel was authorized to appear;
27-22 (8) <(5)> may have access as any party, <other than
27-23 staff,> to all records gathered by the commission under the
27-24 authority of Subsection (a) of Section 29 of this Act;
27-25 (9) <(6)> may obtain discovery of any nonprivileged
27-26 matter which is relevant to the subject matter involved in any
27-27 proceeding or petition before the commission;
28-1 (10) <(7)> may represent individual residential and
28-2 small commercial consumers with respect to their disputed
28-3 complaints concerning utility services unresolved before the
28-4 commission; and
28-5 (11) <(8)> may recommend legislation to the
28-6 legislature which in its judgment would positively affect the
28-7 interests of residential and small commercial consumers.
28-8 (b) <(g) Nothing in this section shall be construed as in
28-9 any way limiting the authority of the commission to represent
28-10 residential or small commercial consumers.>
28-11 <(h)> The appearance of the Public Counsel in any proceeding
28-12 in no way precludes the appearance of other parties on behalf of
28-13 residential ratepayers or small commercial consumers. The Public
28-14 Counsel shall not be grouped with any other parties.
28-15 (c) <(i)> There shall be only one Office of Public Utility
28-16 Counsel even though that office may be referenced in one or more
28-17 Acts of the 68th Legislature.
28-18 (b) The changes in law made by this section relating to the
28-19 requirements for service as public utility counsel apply only to an
28-20 appointment made on or after the effective date of this section,
28-21 and do not affect the entitlement of the public utility counsel
28-22 serving on August 31, 1993, to continue to hold office for the
28-23 remainder of the term for which the person was appointed.
28-24 SECTION 2.05. Section 16, Public Utility Regulatory Act
28-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
28-26 as follows:
28-27 Sec. 16. (a) The commission has the general power to
29-1 regulate and supervise the business of every public utility within
29-2 its jurisdiction and to do all things, whether specifically
29-3 designated in this Act or implied herein, necessary and convenient
29-4 to the exercise of this power and jurisdiction. The commission
29-5 shall make and enforce rules reasonably required in the exercise of
29-6 its powers and jurisdiction, including rules governing practice and
29-7 procedure before the commission and, as applicable, practice and
29-8 procedure before the utility division of the State Office of
29-9 Administrative Hearings. The commission may adopt rules
29-10 authorizing an administrative law judge to:
29-11 (1) limit the amount of time that a party may have to
29-12 present its case;
29-13 (2) limit the number of requests for information that
29-14 a party may make in a contested case;
29-15 (3) require a party to a contested case to identify
29-16 contested issues and facts before the hearing begins and to limit
29-17 cross-examination to only those issues and facts and to any new
29-18 issues that may arise as a result of the discovery process; or
29-19 (4) group parties, other than the office, that have
29-20 similar interests to facilitate cross-examination.
29-21 (b) Rules adopted under Subsection (a) of this section must
29-22 ensure that all parties receive due process.
29-23 (c) The commission may call and hold hearings, other than
29-24 contested case hearings assigned to be heard by the utility
29-25 division of the State Office of Administrative Hearings or other
29-26 hearings delegated to the division under this subsection,
29-27 administer oaths, receive evidence at hearings, issue subpoenas to
30-1 compel the attendance of witnesses and the production of papers and
30-2 documents, and make findings of fact and decisions with respect to
30-3 administering the provisions of this Act or the rules, orders, or
30-4 other actions of the commission. Notwithstanding any other
30-5 provision of this Act or other law, in proceedings other than those
30-6 involving major rate changes, the commission may delegate to an
30-7 administrative law judge in the utility division of the State
30-8 Office of Administrative Hearings <or hearings examiner> the
30-9 authority to make a final decision and to issue findings of fact,
30-10 conclusions of law, and other necessary orders in a proceeding in
30-11 which there is no contested issue of fact or law. The commission,
30-12 by rule, shall define the procedures by which it delegates final
30-13 decision making authority authorized by this section. For review
30-14 purposes the final decision of the administrative law judge <or
30-15 hearings examiner> has the same effect as a final decision of the
30-16 commission unless a commissioner requests formal review of the
30-17 decision.
30-18 (d) <(b) The commission shall develop a long-term statewide
30-19 electrical energy forecast which shall be sent to the governor
30-20 biennially. The forecast will include an assessment of how
30-21 alternative energy sources, conservation, and load management will
30-22 meet the state's electricity needs.>
30-23 <(c) Every generating electric utility in the state shall
30-24 prepare and transmit to the commission by December 31, 1983, and
30-25 every two years thereafter a report specifying at least a 10-year
30-26 forecast for assessments of load and resources for its service
30-27 area. The report shall include a list of facilities which will be
31-1 required to supply electric power during the forecast periods. The
31-2 report shall be in a form prescribed by the commission. The report
31-3 shall include:>
31-4 <(1) a tabulation of estimated peak load, resources,
31-5 and reserve margins for each year during the forecast or assessment
31-6 period;>
31-7 <(2) a list of existing electric generating plants in
31-8 service with a description of planned and potential generating
31-9 capacity at existing sites;>
31-10 <(3) a list of facilities which will be needed to
31-11 serve additional electrical requirements identified in the
31-12 forecasts or assessments, the general location of such facilities,
31-13 and the anticipated types of fuel to be utilized in the proposed
31-14 facilities, including an estimation of shutdown costs and disposal
31-15 of spent fuel for nuclear power plants;>
31-16 <(4) a description of additional system capacity which
31-17 might be achieved through, among other things, improvements in (A)
31-18 generating or transmission efficiency, (B) importation of power,
31-19 (C) interstate or interregional pooling, (D) other improvements in
31-20 efficiencies of operation; and (E) conservation measures;>
31-21 <(5) an estimation of the mix and type of fuel
31-22 resources for the forecast or assessment period;>
31-23 <(6) an annual load duration curve and a forecast of
31-24 anticipated peak loads for the forecast or assessment period for
31-25 the residential, commercial, industrial, and such other major
31-26 demand sectors in the service area of the electric utility as the
31-27 commission shall determine; and>
32-1 <(7) a description of projected population growth,
32-2 urban development, industrial expansion, and other growth factors
32-3 influencing increased demand for electric energy and the basis for
32-4 such projections.>
32-5 <(d) The commission shall establish and every electric
32-6 utility shall utilize a reporting methodology for preparation of
32-7 the forecasts of future load and resources.>
32-8 <(e) The commission shall review and evaluate the electric
32-9 utilities' forecast of load and resources and any public comment on
32-10 population growth estimates prepared by Bureau of Business
32-11 Research, University of Texas at Austin.>
32-12 <(f) Within 12 months after the receipt of the reports
32-13 required in Subsection (b) of this section, the commission shall
32-14 hold a public hearing and subsequently issue a final report to the
32-15 governor and notify every electric utility of the commission's
32-16 electric forecast for that utility. The commission shall consider
32-17 its electric forecast in all certification proceedings covering new
32-18 generation plant.>
32-19 <(g)> The commission shall make and enforce rules to
32-20 encourage the economical production of electric energy by
32-21 qualifying cogenerators and qualifying small power producers.
32-22 (e) <(h)> The commission shall inquire into the management
32-23 of the business of all public utilities under its jurisdiction,
32-24 shall keep itself informed as to the manner and method in which the
32-25 management and business is conducted, and shall obtain from any
32-26 public utility all necessary information to enable the commission
32-27 to perform management audits. The commission may audit each
33-1 utility under the jurisdiction of the commission as frequently as
33-2 needed<, but shall audit each utility at least once every 10
33-3 years>. Six months after any audit, the utility shall report to
33-4 the commission on the status of the implementation of the
33-5 recommendations of the audit and shall file subsequent reports at
33-6 such times as the commission deems appropriate.
33-7 SECTION 2.06. Section 18(n), Public Utility Regulatory Act
33-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
33-9 as follows:
33-10 (n) In any proceeding before the commission alleging conduct
33-11 or activities by an interexchange telecommunications carrier
33-12 against another interexchange carrier in contravention of
33-13 Subsections (l), (m), and (o) of this section, the burden of proof
33-14 shall be upon the complaining interexchange telecommunications
33-15 carrier; however, in such proceedings brought by customers or their
33-16 representatives who are not themselves interexchange
33-17 telecommunications carriers or in such proceedings initiated by the
33-18 commission <commission's general counsel>, the burden of proof
33-19 shall be upon the respondent interexchange telecommunications
33-20 carrier. However, if the commission finds it to be in the public
33-21 interest, the commission may impose the burden of proof in such
33-22 proceedings on the complaining party.
33-23 SECTION 2.07. Article III, Public Utility Regulatory Act
33-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
33-25 adding Sections 19, 19A, and 19B to read as follows:
33-26 Sec. 19. (a) The commission by rule shall develop an
33-27 integrated resource planning process to provide lowest-cost energy
34-1 resources that ensure reliability and minimize consumer electric
34-2 utility bills.
34-3 (b) The process must include procedures for electric
34-4 utilities to use to solicit formal competitive proposals to
34-5 determine the feasibility, cost, reliability, and other relevant
34-6 factors of various resources when additional capacity is needed.
34-7 (c) In developing the process, the commission shall
34-8 consider:
34-9 (1) adopting by rule the statewide integrated resource
34-10 plan developed in accordance with Section 19A;
34-11 (2) requiring a hearing on and formally approving each
34-12 electric generating utility's new or updated individual integrated
34-13 resource plan, other than a plan filed by a municipally owned
34-14 utility or a plan filed by a river authority or generating electric
34-15 cooperative that does not intend to build a new generating plant or
34-16 to make a major modification to an existing plant;
34-17 (3) requiring electric utilities to file an
34-18 implementation plan for the utility's approved individual
34-19 integrated resource plan;
34-20 (4) allowing electric utilities to recover reasonable
34-21 costs for conservation programs and purchased power in a timely
34-22 manner;
34-23 (5) reviewing the state's transmission system,
34-24 requiring electric utilities to build new power lines, upgrade
34-25 power lines, and make other improvements and additions as
34-26 necessary, and determining who will pay the cost of these
34-27 improvements; and
35-1 (6) adopting procedures to allow electric utilities to
35-2 file minor updates to an approved integrated resource plan and to
35-3 petition the commission for an emergency hearing on major changes
35-4 to the approved plan.
35-5 (d) The process may include consideration of additional
35-6 incentives to electric utilities for conservation programs that are
35-7 proven to be successful.
35-8 (e) The commission may develop a staggered schedule for each
35-9 electric utility to file its plan. The commission shall establish
35-10 and each utility shall use a reporting methodology to prepare the
35-11 utility's plan.
35-12 Sec. 19A. (a) The commission shall adopt and periodically
35-13 update a statewide integrated resource plan. The commission shall:
35-14 (1) send the plan to the governor on adoption of the
35-15 plan or an update; and
35-16 (2) issue a final report to the governor and notify
35-17 each electric utility of the approval of the statewide plan and of
35-18 each individual utility plan.
35-19 (b) The statewide plan shall include:
35-20 (1) the approved individual plans of electric
35-21 generating utilities;
35-22 (2) an assessment of how alternative energy sources,
35-23 conservation, and load management will meet the state's electricity
35-24 needs;
35-25 (3) the commission's goals for the use of various
35-26 energy resources; and
35-27 (4) other information required by the commission.
36-1 Sec. 19B. (a) Each electric generating utility in this
36-2 state, including a municipally owned utility and a river authority
36-3 or generating electric cooperative, shall prepare and file with the
36-4 commission, in the form and at the time required by the commission,
36-5 an individual integrated resource plan that includes at least a
36-6 10-year forecast for assessments of load and resources for the
36-7 utility's service area.
36-8 (b) The plan required under this section shall include:
36-9 (1) a list of resources and facilities that will be
36-10 required to supply electric power during the plan period;
36-11 (2) an assessment of how alternative energy sources,
36-12 conservation, and load management will meet the utility's
36-13 electricity needs;
36-14 (3) a tabulation of estimated peak load, resources,
36-15 and reserve margins for each year during the plan period;
36-16 (4) a list of existing electric generating plants in
36-17 service with a description of planned and potential generating
36-18 capacity at existing sites;
36-19 (5) a list of facilities that will be needed to serve
36-20 additional electrical requirements identified in the plan, the
36-21 general location of those facilities, and the anticipated types of
36-22 fuel to be used in the proposed facilities, including an estimation
36-23 of shutdown costs and disposal of spent fuel for nuclear power
36-24 plants;
36-25 (6) a description of additional system capacity that
36-26 might be achieved through, among other things, improvements in:
36-27 (A) generating or transmission efficiency;
37-1 (B) importation of power;
37-2 (C) interstate or interregional pooling;
37-3 (D) other improvements in efficiencies of
37-4 operation; and
37-5 (E) conservation measures;
37-6 (7) an estimation of the mix and type of fuel
37-7 resources for the plan period;
37-8 (8) an annual load duration curve and a forecast of
37-9 anticipated peak loads for the plan period for the residential,
37-10 commercial, industrial, and other major demand sectors in the
37-11 service area of the electric utility as the commission shall
37-12 determine;
37-13 (9) a description of projected population growth,
37-14 urban development, industrial expansion, and other growth factors
37-15 influencing increased demand for electric energy and the basis for
37-16 those projections;
37-17 (10) alternative methods the electric utility
37-18 considered to help meet the electrical needs, any related
37-19 electrical facilities, and the advantages and disadvantages of the
37-20 alternatives; and
37-21 (11) any other information as required by the
37-22 commission.
37-23 (c) The commission shall review and evaluate the electric
37-24 utility's plan and any public comment on population growth
37-25 estimates prepared by the Bureau of Business Research, University
37-26 of Texas at Austin.
37-27 (d) Except as provided by Subsection (f) of this section,
38-1 the commission may require that a public hearing be held on whether
38-2 to adopt an electric utility's plan. In addition to other criteria
38-3 considered by the commission in determining whether to approve a
38-4 plan, the commission shall consider:
38-5 (1) the adequacy of existing services;
38-6 (2) the need for additional services;
38-7 (3) the effect of approving the plan on the electric
38-8 utility and on any public utility of the same kind that already
38-9 serves the proximate area; and
38-10 (4) the probable improvement of service or lowering of
38-11 cost to consumers in the area.
38-12 (e) If a plan includes the intention to build a new
38-13 generating plant or to make a major modification to an existing
38-14 plant, the commission may approve the plan only if the commission
38-15 finds that:
38-16 (1) the new or modified plant is necessary for the
38-17 service, accommodation, convenience, or safety of the public;
38-18 (2) the new or modified plant is the best and most
38-19 economical choice of technology for that service as compatible with
38-20 the most recent statewide integrated resource plan; and
38-21 (3) conservation and alternative energy sources cannot
38-22 meet the need.
38-23 (f) A commission hearing and formal approval are not
38-24 required for a plan filed by a municipally owned electric utility
38-25 or a plan filed by a river authority or generating electric
38-26 cooperative that does not intend to build a new generating plant or
38-27 to make a major modification to an existing plant.
39-1 SECTION 2.08. Section 39(b), Public Utility Regulatory Act
39-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
39-3 as follows:
39-4 (b) In fixing a reasonable return on invested capital, the
39-5 regulatory authority shall consider, in addition to other
39-6 applicable factors, efforts to comply with the most recent
39-7 statewide integrated resource plan and the utility's most recent
39-8 approved individual integrated resource <energy> plan, the efforts
39-9 and achievements of such utility in the conservation of resources,
39-10 the quality of the utility's services, the efficiency of the
39-11 utility's operations, and the quality of the utility's management.
39-12 SECTION 2.09. Section 43A, Public Utility Regulatory Act
39-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
39-14 as follows:
39-15 Sec. 43A. A local exchange company may make changes in its
39-16 tariffed rules, regulations, or practices that do not affect its
39-17 charges or rates by filing the proposed changes concurrently with
39-18 the office and <with> the commission at least 35 days prior to the
39-19 effective date of the changes. The commission may require such
39-20 notice to ratepayers as it considers appropriate. The commission
39-21 may on complaint by any affected person or on its own motion hold a
39-22 hearing, after reasonable notice, to determine the propriety of the
39-23 change. Pending the hearing and decision, the commission may
39-24 suspend the operation of the proposed changes for a period not to
39-25 exceed 120 days after the date on which the changes would otherwise
39-26 go into effect. The commission shall approve, deny, or modify the
39-27 proposed changes before expiration of the suspension period. In
40-1 any proceeding under this section, the burden of proving that the
40-2 requested relief is in the public interest and complies with this
40-3 Act shall be borne by the local exchange company.
40-4 SECTION 2.10. Section 43B(b), Public Utility Regulatory Act
40-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
40-6 as follows:
40-7 (b) At least 60 days before the date of the change, the
40-8 local exchange company shall file concurrently with the commission
40-9 and the office a statement of intent to change rates containing:
40-10 (1) a copy of the notice required by Subsection (a) of
40-11 this section;
40-12 (2) the number of access lines the company has in
40-13 service in this state;
40-14 (3) the date of the most recent commission order
40-15 setting rates of the company;
40-16 (4) the increase in total gross annual local revenues
40-17 that will be produced by the proposed rates;
40-18 (5) the increase in total gross annual local revenues
40-19 that will be produced by the proposed rates together with any local
40-20 rate changes which went into effect during the 12 months preceding
40-21 the proposed effective date of the requested rate change and any
40-22 other proposed local rate changes then pending before the
40-23 commission;
40-24 (6) the increase in rates for each service category;
40-25 and
40-26 (7) other information the commission by rule requires.
40-27 SECTION 2.11. Sections 52(a) and (c), Public Utility
41-1 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
41-2 amended to read as follows:
41-3 (a) A public utility shall submit to the commission an
41-4 application to obtain a certificate of public convenience and
41-5 necessity or an amendment thereof. The utility shall file
41-6 concurrently with the office a copy of the application.
41-7 (c) Each applicant for a certificate shall file with the
41-8 commission and the office such evidence as is required by the
41-9 commission to show that the applicant has received the required
41-10 consent, franchise, or permit of the proper municipality or other
41-11 public authority.
41-12 SECTION 2.12. Section 52, Public Utility Regulatory Act
41-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
41-14 adding Subsection (d) to read as follows:
41-15 (d) The commission may not accept an application for a
41-16 certificate of convenience and necessity relating to the
41-17 construction or major modification of an electric generating plant
41-18 if the utility's most recent individual integrated resource plan
41-19 has been filed with the commission but has not yet been approved.
41-20 SECTION 2.13. Section 54, Public Utility Regulatory Act
41-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
41-22 as follows:
41-23 Sec. 54. (a) When an application for a certificate of
41-24 public convenience and necessity is filed, the commission shall
41-25 give notice of such application to interested parties and, if
41-26 requested, shall fix a time and place for a hearing and give notice
41-27 of the hearing. Any person interested in the application may
42-1 intervene at the hearing.
42-2 (b) Except for certificates for prior operations granted
42-3 under Section 53 and certificates for the construction or major
42-4 modification of an electric generating plant, the commission may
42-5 grant applications and issue certificates only if the commission
42-6 finds that the certificate is necessary for the service,
42-7 accommodation, convenience, or safety of the public. The
42-8 commission may grant applications and issue certificates for the
42-9 construction or major modification of an electric generating plant
42-10 only if the proposed plant has been approved by the commission as
42-11 part of the utility's most recent approved individual integrated
42-12 resource plan. The commission may issue the certificate as prayed
42-13 for, or refuse to issue it, or issue it for the construction of a
42-14 portion only of the contemplated system or facility or extension
42-15 thereof, or for the partial exercise only of the right or
42-16 privilege.
42-17 (c) Except as provided by Subsection (d) of this section,
42-18 certificates <Certificates> of convenience and necessity shall be
42-19 granted on a nondiscriminatory basis after consideration by the
42-20 commission of the adequacy of existing service, the need for
42-21 additional service, the effect of the granting of a certificate on
42-22 the recipient of the certificate and on any public utility of the
42-23 same kind already serving the proximate area, and on such factors
42-24 as community values, recreational and park areas, historical and
42-25 aesthetic values, environmental integrity, and the probable
42-26 improvement of service or lowering of cost to consumers in such
42-27 area resulting from the granting of such certificate.
43-1 (d) A <In addition to the requirements of this section, an
43-2 electric utility applying for certificate of convenience and
43-3 necessity for a new generating plant must first file a notice of
43-4 intent to file an application for certification.>
43-5 <(1) The notice of intent shall set out alternative
43-6 methods considered to help meet the electrical needs, related
43-7 electrical facilities, and the advantages and disadvantages of the
43-8 alternatives. In addition, the notice shall indicate compatibility
43-9 with the most recent long-term forecast provided in this Act.>
43-10 <(2) The commission shall conduct a hearing on the
43-11 notice of intent to determine the appropriateness of the proposed
43-12 generating plant as compared to the alternatives and shall issue a
43-13 report on its findings. In conjunction with the issuance of the
43-14 report, the commission shall render a decision approving or
43-15 disapproving the notice. Such decision shall be rendered within
43-16 180 days from the date of filing the notice of intent.>
43-17 <(e) On approval of the notice of intent, a> utility may
43-18 apply for certification for a generating plant<,> site<,> and site
43-19 facilities no later than 12 months before construction is to
43-20 commence.
43-21 (1) The application for certification shall contain
43-22 such information as the commission may require to justify the
43-23 proposed generating plant<,> site<,> and site facilities and to
43-24 allow a determination showing compatibility with the utility's most
43-25 recent approved individual integrated resource plan <forecast>.
43-26 (2) Certificates of convenience and necessity shall be
43-27 granted on a nondiscriminatory basis if the commission finds that
44-1 the proposed new plant is required under the utility's most recent
44-2 approved individual integrated resource plan <service area
44-3 forecast, that it is the best and most economical choice of
44-4 technology for that service area as compatible with the
44-5 commission's forecast, and that conservation and alternative energy
44-6 sources cannot meet the need>. In determining whether to grant a
44-7 certificate, the commission shall consider the factors prescribed
44-8 by this subsection and Subsection (c) of this section, but only as
44-9 they relate to the proposed site for the plant or modification.
44-10 The commission may not reconsider issues that were considered in
44-11 determining whether to approve the utility's most recent individual
44-12 integrated resource plan.
44-13 (e) The <(f) If the application for a certificate of
44-14 convenience and necessity involves new transmission facilities,
44-15 the> commission shall approve or deny an application for a
44-16 certificate of convenience and necessity filed by an electric
44-17 utility within 180 days <the application within one year> after the
44-18 date the application is filed. If the commission does not approve
44-19 or deny the application before this deadline, any party may seek a
44-20 writ of mandamus in a district court of Travis County to compel the
44-21 commission to make a decision on the application.
44-22 SECTION 2.14. Sections 63, 64, and 65, Public Utility
44-23 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
44-24 amended to read as follows:
44-25 Sec. 63. No public utility may sell, acquire, lease, or rent
44-26 any plant as an operating unit or system in this state for a total
44-27 consideration in excess of $100,000 or merge or consolidate with
45-1 another public utility operating in this state unless the public
45-2 utility reports such transaction to the commission and the office
45-3 within a reasonable time. All transactions involving the sale of
45-4 50 percent or more of the stock of a public utility shall also be
45-5 reported to the commission and the office within a reasonable time.
45-6 On the filing of a report with the commission, the commission shall
45-7 investigate the same with or without public hearing, to determine
45-8 whether the action is consistent with the public interest. In
45-9 reaching its determination, the commission shall take into
45-10 consideration the reasonable value of the property, facilities, or
45-11 securities to be acquired, disposed of, merged or consolidated. If
45-12 the commission finds that such transactions are not in the public
45-13 interest, the commission shall take the effect of the transaction
45-14 into consideration in the rate-making proceedings and disallow the
45-15 effect of such transaction if it will unreasonably affect rates or
45-16 service. The provisions of this section shall not be construed as
45-17 being applicable to the purchase of units of property for
45-18 replacement or to the addition to the facilities of the public
45-19 utility by construction.
45-20 Sec. 64. No public utility may purchase voting stock in
45-21 another public utility doing business in Texas, unless the utility
45-22 reports such purchase to the commission and the office.
45-23 Sec. 65. No public utility may loan money, stocks, bonds,
45-24 notes, or other evidences of indebtedness to any corporation or
45-25 person owning or holding directly or indirectly any stock of the
45-26 public utility unless the public utility reports the transaction to
45-27 the commission and the office within a reasonable time.
46-1 SECTION 2.15. Chapter 591, Acts of the 72nd Legislature,
46-2 Regular Session, 1991 (Article 6252-13f, Vernon's Texas Civil
46-3 Statutes), is amended by adding Section 4A to read as follows:
46-4 Sec. 4A. UTILITY DIVISION. (a) The office shall establish
46-5 a utility division to perform the contested case hearings for the
46-6 Public Utility Commission of Texas as prescribed by the Public
46-7 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
46-8 Statutes) and other applicable law.
46-9 (b) The utility division shall conduct all hearings relating
46-10 to contested cases before the commission. The commission by rule
46-11 may delegate the responsibility to hear any other matter before the
46-12 commission if consistent with the duties and responsibilities of
46-13 the division.
46-14 (c) Only an administrative law judge in the utility division
46-15 may conduct a hearing for the commission. An administrative law
46-16 judge in the utility division may conduct hearings for other state
46-17 agencies as time allows. The office may transfer an administrative
46-18 law judge into the division on a temporary or permanent basis and
46-19 may contract with qualified individuals to serve as temporary
46-20 administrative law judges as necessary.
46-21 (d) To be eligible to preside at a hearing of major
46-22 importance, an administrative law judge must be licensed to
46-23 practice law in this state and have not less than five years of
46-24 general experience or three years of experience in utility
46-25 regulatory law.
46-26 (e) At the time the office receives jurisdiction of a
46-27 proceeding, the commission shall provide to the administrative law
47-1 judge a list of issues or areas that must be addressed.
47-2 (f) The office and the commission shall jointly adopt rules
47-3 providing for certification to the commission of an issue that
47-4 involves an ultimate finding of compliance with or satisfaction of
47-5 a statutory standard the determination of which is committed to the
47-6 discretion or judgment of the commission by law. The rules must
47-7 address, at a minimum, the issues that are appropriate for
47-8 certification and the procedure to be used in certifying the issue.
47-9 Each agency shall publish the jointly adopted rules.
47-10 SECTION 2.16. Section 13.09, State Purchasing and General
47-11 Services Act (Article 601b, Vernon's Texas Civil Statutes), is
47-12 amended to read as follows:
47-13 Sec. 13.09. APPLICATION. The state agencies subject to this
47-14 article are:
47-15 (1) the Texas Department of Mental Health and Mental
47-16 Retardation;
47-17 (2) the Texas Department of Human Services;
47-18 (3) the Texas Department of Criminal Justice;
47-19 (4) the Department of Agriculture;
47-20 (5) the Central Education Agency;
47-21 (6) the Texas Higher Education Coordinating Board;
47-22 (7) the State Department of Highways and Public
47-23 Transportation; <and>
47-24 (8) the commission;
47-25 (9) the Public Utility Commission of Texas; and
47-26 (10) the Office of Public Utility Counsel.
47-27 SECTION 2.17. Notwithstanding Section 13.09, State
48-1 Purchasing and General Services Act (Article 601b, Vernon's Texas
48-2 Civil Statutes), as amended by this article, and Sections 5b and
48-3 15A(n), Public Utility Regulatory Act (Article 1446c, Vernon's
48-4 Texas Civil Statutes), as added by this article, the competitive
48-5 cost review provisions shall apply only to one activity each chosen
48-6 by the Public Utility Commission of Texas and the Office of Public
48-7 Utility Counsel for the period ending August 31, 1995.
48-8 SECTION 2.18. (a) A task force is established to administer
48-9 the transfer of the hearings division from the Public Utility
48-10 Commission of Texas to the State Office of Administrative Hearings
48-11 and the transfer of personnel from the commission to the Office of
48-12 Public Utility Counsel. The task force is composed of:
48-13 (1) the governor or the governor's designee;
48-14 (2) the members of the Legislative Budget Board or the
48-15 members' designees;
48-16 (3) the chairman of the Public Utility Commission of
48-17 Texas;
48-18 (4) the public utility counsel; and
48-19 (5) the chief administrative law judge of the State
48-20 Office of Administrative Hearings.
48-21 (b) The governor or the governor's designee is the presiding
48-22 officer of the task force.
48-23 (c) The task force shall:
48-24 (1) determine the personnel, equipment, data,
48-25 facilities, and other items that will be transferred under this Act
48-26 and the schedule for the transfers; and
48-27 (2) mediate and resolve disputes between the
49-1 respective agencies relating to a transfer.
49-2 (d) After the transfers have been completed, the task force
49-3 shall prepare a written report detailing the specifics of the
49-4 transfers and shall submit the report to the governor and the
49-5 legislature.
49-6 (e) In determining a transfer under this Act, the task force
49-7 shall ensure that the transfer does not adversely affect a
49-8 proceeding before the commission or the rights of the parties to
49-9 the proceeding.
49-10 SECTION 2.19. (a) On September 1, 1993, all personnel,
49-11 including hearings examiners and administrative law judges,
49-12 equipment, data, facilities, and other items of the hearings
49-13 division of the Public Utility Commission of Texas, other than the
49-14 personnel, equipment, data, facilities, and other items of the
49-15 central records office, are transferred to the utility division of
49-16 the State Office of Administrative Hearings. Until September 1,
49-17 1994, an employee transferred to the utility division may be
49-18 terminated or subject to salary reduction only for cause and only
49-19 in relation to poor performance or unacceptable conduct. A
49-20 hearings examiner transferred to the State Office of Administrative
49-21 Hearings becomes an administrative law judge on the date of
49-22 transfer.
49-23 (b) A hearings examiner or administrative law judge
49-24 transferred from the Public Utility Commission of Texas to the
49-25 State Office of Administrative Hearings shall continue to hear any
49-26 case assigned to the person as if the transfer had not occurred.
49-27 (c) The changes in law made by this article that relate to
50-1 the powers and duties of the general counsel and commission staff
50-2 and to the procedures governing a hearing before the utility
50-3 division of the State Office of Administrative Hearings apply only
50-4 to a case that is filed on or after September 1, 1993. For cases
50-5 filed before September 1, 1993, the general counsel and commission
50-6 staff shall continue to perform the duties prescribed by the
50-7 provisions amended by this article as those duties existed on
50-8 August 31, 1993. In addition, the procedures prescribed by the
50-9 provisions amended by this article shall continue to be used in a
50-10 hearing, as those procedures existed on August 31, 1993. The
50-11 former law is continued in effect for those purposes.
50-12 (d) The Public Utility Commission of Texas by rule shall
50-13 adopt a statewide integrated resource planning process as required
50-14 by Section 19A, Public Utility Regulatory Act (Article 1446c,
50-15 Vernon's Texas Civil Statutes), not later than September 1, 1994.
50-16 (e) The changes in law made by this article to Sections
50-17 52(d) and 54, Public Utility Regulatory Act (Article 1446c,
50-18 Vernon's Texas Civil Statutes), take effect September 1, 1994, and
50-19 apply only to an application for a certificate of convenience and
50-20 necessity filed on or after that date.
50-21 (f) Section 2.18 of this article takes effect immediately.
50-22 ARTICLE 3
50-23 SECTION 3.01. (a) Article III, Public Utility Regulatory
50-24 Act (Article 1446c, Vernon's Texas Civil Statutes), is amended by
50-25 adding Section 16A to read as follows:
50-26 Sec. 16A. (a) The commission by rule shall adopt procedures
50-27 governing the use of settlements to resolve contested cases.
51-1 (b) The rules shall ensure that:
51-2 (1) each party retains the right to:
51-3 (A) have a full hearing before the commission on
51-4 issues that remain in dispute; and
51-5 (B) judicial review of issues that remain in
51-6 dispute;
51-7 (2) an issue of fact raised by a non-settling party
51-8 cannot be waived by a settlement or stipulation of the other
51-9 parties; and
51-10 (3) the non-settling party may use the issue of fact
51-11 raised by that party as the basis for judicial review.
51-12 (b) This section applies only to a proceeding for which a
51-13 final order has not been issued before the effective date of this
51-14 Act. On or after the effective date of this Act, the Public
51-15 Utility Commission of Texas may not approve a settlement unless the
51-16 settlement has been reached in accordance with rules adopted under
51-17 Section 16A, Public Utility Regulatory Act (Article 1446c, Vernon's
51-18 Texas Civil Statutes), as added by this Act, and its subsequent
51-19 amendments.
51-20 SECTION 3.02. Section 30, Public Utility Regulatory Act
51-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
51-22 as follows:
51-23 Sec. 30. The regulatory authority may require an annual
51-24 reporting from each utility company of all its expenditures for
51-25 business gifts and entertainment, and institutional,
51-26 consumption-inducing and other advertising or public relations
51-27 expenses. The regulatory authority shall not allow as costs or
52-1 expenses for rate-making purposes any of these expenditures which
52-2 the regulatory authority determines not to be in the public
52-3 interest. Charitable or civic contributions and the <The> cost of
52-4 legislative-advocacy expenses shall not in any case be allowed as
52-5 costs or expenses for rate-making purposes. Reasonable costs of
52-6 participating in a proceeding under this Act <charitable or civic
52-7 contributions> may be allowed not to exceed the amount approved by
52-8 the regulatory authority.
52-9 SECTION 3.03. Section 41, Public Utility Regulatory Act
52-10 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
52-11 as follows:
52-12 Sec. 41. The components of invested capital and net income
52-13 shall be determined according to the following rules:
52-14 (a) Invested Capital. Utility rates shall be based
52-15 upon the original cost of property used by and useful to the public
52-16 utility in providing service including construction work in
52-17 progress at cost as recorded on the books of the utility. The
52-18 inclusion of construction work in progress is an exceptional form
52-19 of rate relief to be granted only upon the demonstration by the
52-20 utility that such inclusion is necessary to the financial integrity
52-21 of the utility. Construction work in progress shall not be
52-22 included in the rate base for major projects under construction to
52-23 the extent that such projects have been inefficiently or
52-24 imprudently planned or managed. Original cost shall be the actual
52-25 money cost, or the actual money value of any consideration paid
52-26 other than money, of the property at the time it shall have been
52-27 dedicated to public use, whether by the utility which is the
53-1 present owner or by a predecessor, less depreciation. The cost of
53-2 pay telephone property of a local exchange company may not be
53-3 included in the company's rate base except to the extent that the
53-4 pay telephone property is located in a rural, remote, or other
53-5 underserved area, as defined by the commission.
53-6 (b) Separations and Allocations. Costs of facilities,
53-7 revenues, expenses, taxes, and reserves shall be separated or
53-8 allocated as prescribed by the regulatory authority.
53-9 (c) Net Income. By "net income" is meant the total
53-10 revenues of the public utility less all reasonable and necessary
53-11 expenses as determined by the regulatory authority. The regulatory
53-12 authority shall determine expenses and revenues in a manner
53-13 consistent with the following:
53-14 (1) Transactions with Affiliated Interests.
53-15 Payment to affiliated interests for costs of any services, or any
53-16 property, right or thing, or for interest expense shall not be
53-17 allowed either as capital cost or as expense except to the extent
53-18 that the regulatory authority shall find such payment to be
53-19 reasonable and necessary for each item or class of items as
53-20 determined by the commission. Any such finding shall include
53-21 specific findings of the reasonableness and necessity of each item
53-22 or class of items allowed and a finding that the price to the
53-23 utility is no higher than prices charged by the supplying affiliate
53-24 to its other affiliates or divisions for the same item or class of
53-25 items, or to unaffiliated persons or corporations. The price paid
53-26 by gas utilities to affiliated interests for natural gas from Outer
53-27 Continental Shelf lands shall be subject to a rebuttable
54-1 presumption that such price is reasonable if the price paid does
54-2 not exceed the price permitted by federal regulation if such gas is
54-3 regulated by any federal agency or if not regulated by a federal
54-4 agency does not exceed the price paid by nonaffiliated parties for
54-5 natural gas from Outer Continental Shelf lands. The burden of
54-6 establishing that such a price paid is not reasonable shall be on
54-7 any party challenging the reasonableness of such price.
54-8 (2) Income Taxes. If the public utility is a
54-9 member of an affiliated group that is eligible to file a
54-10 consolidated income tax return, and if it is advantageous to the
54-11 public utility to do so, income taxes shall be computed as though a
54-12 consolidated return had been so filed and the utility had realized
54-13 its fair share of the savings resulting from the consolidated
54-14 return, unless it is shown to the satisfaction of the regulatory
54-15 authority that it was reasonable to choose not to consolidate
54-16 returns. The amounts of income taxes saved by a consolidated group
54-17 of which a public utility is a member by reason of the elimination
54-18 in the consolidated return of the intercompany profit on purchases
54-19 by the public utility from an affiliate shall be applied to reduce
54-20 the cost of the property or services so purchased. The investment
54-21 tax credit allowed against federal income taxes, to the extent
54-22 retained by the utility, shall be applied as a reduction in the
54-23 rate based contribution of the assets to which such credit applies,
54-24 to the extent and at such rate as allowed by the Internal Revenue
54-25 Code.
54-26 (3) Expenses Disallowed. The regulatory
54-27 authority shall not consider for ratemaking purposes the following
55-1 expenses:
55-2 (A) legislative advocacy expenses, whether
55-3 made directly or indirectly, including but not limited to
55-4 legislative advocacy expenses included in trade association dues;
55-5 (B) payments, except those made under an
55-6 insurance or risk-sharing arrangement executed before the date of
55-7 loss, made to cover costs of an accident, equipment failure, or
55-8 negligence at a utility facility owned by a person or governmental
55-9 body not selling power inside the State of Texas;
55-10 (C) Costs of processing a refund or credit
55-11 under Subsection (e) of Section 43 of this Act; <or>
55-12 (D) charitable or civic contributions; or
55-13 (E) any expenditure found by the
55-14 regulatory authority to be unreasonable, unnecessary, or not in the
55-15 public interest, including but not limited to executive salaries,
55-16 advertising expenses, legal expenses, and civil or administrative
55-17 penalties or fines.
55-18 The regulatory authority may promulgate reasonable rules and
55-19 regulations with respect to the allowance or disallowance of any
55-20 expenses for ratemaking purposes. The commission shall adopt
55-21 reasonable rules with respect to the allowance or disallowance of
55-22 costs of participating in a proceeding under this Act.
55-23 SECTION 3.04. Section 42, Public Utility Regulatory Act
55-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
55-25 as follows:
55-26 Sec. 42. (a) Whenever the regulatory authority, after
55-27 reasonable notice and hearing, on its own motion or on complaint by
56-1 any affected person, finds that the existing rates of any public
56-2 utility for any service are unreasonable or in any way in violation
56-3 of any provision of law, the regulatory authority shall determine
56-4 the just and reasonable rates, including maximum or minimum rates,
56-5 to be thereafter observed and in force, and shall fix the same by
56-6 order to be served on the public utility; and such rates shall
56-7 constitute the legal rates of the public utility until changed as
56-8 provided in this Act. Whenever a public utility does not itself
56-9 produce or generate that which it distributes, transmits, or
56-10 furnishes to the public for compensation, but obtains the same from
56-11 another source, the regulatory authority shall have the power and
56-12 authority to investigate the cost of such production or generation
56-13 in any investigation of the reasonableness of the rates of such
56-14 public utility.
56-15 (b) Not later than the 90th day after the regulatory
56-16 authority notifies the utility that the regulatory authority has
56-17 decided to proceed with an inquiry under this section relating to
56-18 the rates of the utility, the utility shall file a rate-filing
56-19 package concurrently with the regulatory authority and the office.
56-20 The regulatory authority shall make a final determination
56-21 concerning the matter not later than the 185th day after the date
56-22 on which the utility files the rate-filing package. However, the
56-23 185-day period is extended two days for each one day of actual
56-24 hearings on the merits of the case that exceeds 15 days.
56-25 (c) At any time after an initial complaint is filed under
56-26 this section, the regulatory authority may issue an interim order
56-27 fixing temporary rates for the utility that will continue until a
57-1 final determination on the matter is made. On issuance of a final
57-2 order, the regulatory authority may require the utility to refund
57-3 to customers or to credit against future bills all sums collected
57-4 during the period in which the temporary rates were in effect that
57-5 are in excess of the rate finally ordered.
57-6 SECTION 3.05. Section 71A, Public Utility Regulatory Act
57-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
57-8 as follows:
57-9 Sec. 71A. (a) If a person regulated under this Act violates
57-10 a provision of this Act or a rule or order adopted by the
57-11 commission under this Act, the commission may assess an
57-12 administrative penalty against the person as provided by this
57-13 section.
57-14 (b) The penalty for each violation may be in an amount not
57-15 to exceed $5,000. Each day a violation continues or occurs may be
57-16 considered a separate violation for purposes of penalty
57-17 assessments.
57-18 (c) In determining the amount of the penalty, the executive
57-19 director employed under Section 8 of this Act shall consider:
57-20 (1) the seriousness of the violation, including the
57-21 nature, circumstances, extent, and gravity of the prohibited acts,
57-22 and the hazard or potential hazard created to the health or safety
57-23 of the public;
57-24 (2) the economic damage to property or the environment
57-25 caused by the violation;
57-26 (3) the history of previous violations;
57-27 (4) the amount necessary to deter future violations;
58-1 (5) efforts to correct the violation; and
58-2 (6) any other matter that justice may require.
58-3 (d) If, after investigation of a possible violation and the
58-4 facts surrounding that possible violation, the executive director
58-5 determines that a violation has occurred, the executive director
58-6 may issue a violation report stating the facts on which the
58-7 conclusion that a violation occurred is based, recommending that an
58-8 administrative penalty under this section be imposed on the person
58-9 charged, and recommending the amount of that proposed penalty. The
58-10 executive director shall base the recommended amount of the
58-11 proposed penalty on the seriousness of the violation as determined
58-12 by consideration of the factors prescribed by Subsection (c) of
58-13 this section.
58-14 (e) Not later than the 14th day after the date on which the
58-15 report is issued, the executive director shall give written notice
58-16 of the report to the person charged. The notice shall include a
58-17 brief summary of the charges, a statement of the amount of the
58-18 penalty recommended, and a statement of the right of the person
58-19 charged to a hearing on the occurrence of the violation or the
58-20 amount of the penalty, or of both the occurrence of the violation
58-21 and the amount of the penalty.
58-22 (f) Not later than the 20th day after the date on which
58-23 notice is received, the person charged may accept the determination
58-24 of the executive director made under Subsection (d) of this
58-25 section, including the recommended penalty, or make a written
58-26 request for a hearing on the determination.
58-27 (g) If the person charged with the violation accepts the
59-1 determination of the executive director, the commission shall issue
59-2 an order approving the determination and ordering the payment of
59-3 the recommended penalty.
59-4 (h) If the person charged requests a hearing or fails to
59-5 timely respond to the notice, the executive director shall set a
59-6 hearing and give notice of the hearing. The hearing shall be held
59-7 by an administrative law judge in the utilities division of the
59-8 State Office of Administrative Hearings designated by the chief
59-9 administrative law judge. The administrative law judge shall make
59-10 findings of fact and conclusions of law and promptly issue to the
59-11 commission a proposal for decision as to the occurrence of the
59-12 violation, including a recommendation as to the amount of the
59-13 proposed penalty if a penalty is warranted. Based on the
59-14 findings of fact, conclusions of law, and recommendations of the
59-15 administrative law judge, the commission by order may find that a
59-16 violation has occurred and may assess a penalty or may find that no
59-17 violation has occurred. All proceedings under this subsection are
59-18 subject to the Administrative Procedure and Texas Register Act
59-19 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
59-20 subsequent amendments.
59-21 (i) The executive director shall give notice of the
59-22 commission's order to the person charged. The notice shall
59-23 include:
59-24 (1) the findings of fact and conclusions of law
59-25 separately stated;
59-26 (2) the amount of the penalty ordered, if any;
59-27 (3) a statement of the right of the person charged to
60-1 judicial review of the commission's order, if any; and
60-2 (4) other information required by law.
60-3 (j) Not later than the 31st day after the date on which the
60-4 order becomes final as provided by Section 16(c), Administrative
60-5 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
60-6 Civil Statutes), and its subsequent amendments, the person charged
60-7 with the penalty shall:
60-8 (1) pay the penalty in full; or
60-9 (2) file a petition for judicial review contesting the
60-10 amount of the penalty or the fact of the violation or contesting
60-11 both the amount of the penalty and the fact of the violation and:
60-12 (A) forward the amount to the executive director
60-13 for placement in an escrow account; or
60-14 (B) in lieu of payment into escrow, post with
60-15 the executive director a supersedeas bond in a form approved by the
60-16 executive director for the amount of the penalty, the bond to be
60-17 effective until all judicial review of the order or decision is
60-18 final.
60-19 (k) If a person charged is financially unable to either
60-20 forward the penalty for placement in an escrow account or post a
60-21 supersedeas bond for the amount of the penalty, the person may
60-22 satisfy the requirements of Subsection (j)(2) of this section by
60-23 filing with the executive director an affidavit sworn to by the
60-24 person charged, stating that the person is financially unable to
60-25 either forward the amount of the penalty or post a bond.
60-26 (l) Failure to forward the money to or to post the bond or
60-27 file the affidavit with the executive director within the time
61-1 provided by Subsection (j) of this section results in a waiver of
61-2 all legal rights to judicial review. Also, if the person charged
61-3 fails to pay the penalty in full as provided under Subsection
61-4 (j)(1) of this section or to forward the money, post the bond, or
61-5 file the affidavit as provided by Subsection (j) or (k) of this
61-6 section, the executive director may forward the matter to the
61-7 attorney general for enforcement.
61-8 (m) Judicial review of the order or decision of the
61-9 commission assessing the penalty shall be under the substantial
61-10 evidence rule and shall be instituted by filing a petition with a
61-11 district court in Travis County, as provided by Section 19,
61-12 Administrative Procedure and Texas Register Act (Article 6252-13a,
61-13 Vernon's Texas Civil Statutes), and its subsequent amendments.
61-14 (n) If the penalty is reduced or not assessed by the court,
61-15 the executive director shall remit to the person charged the
61-16 appropriate amount plus accrued interest if the penalty has been
61-17 paid or shall execute a release of the bond if a supersedeas bond
61-18 has been posted. The accrued interest on amounts remitted by the
61-19 executive director under this subsection shall be paid at a rate
61-20 equal to the rate charged on loans to depository institutions by
61-21 the New York Federal Reserve Bank and shall be paid for the period
61-22 beginning on the date the penalty is paid to the executive director
61-23 under Subsection (j) of this section and ending on the date the
61-24 penalty is remitted.
61-25 (o) A penalty collected under this section for a violation
61-26 by a person regulated under this Act shall be deposited to the
61-27 credit of the general revenue fund <At the request of the
62-1 commission, the attorney general shall bring suit for the
62-2 appointment of a receiver to collect the assets and carry on the
62-3 business of a water or sewer utility that violates a final order of
62-4 the commission or allows any property owned or controlled by it to
62-5 be used in violation of a final order of the commission.>
62-6 <(b) The court shall appoint a receiver if such appointment
62-7 is necessary to guarantee the collection of assessments, fees,
62-8 penalties, or interest, to guarantee continued service to the
62-9 customers of the utility, or to prevent continued or repeated
62-10 violation of the final order.>
62-11 <(c) The receiver shall execute a bond to assure the proper
62-12 performance of the receiver's duties in an amount to be set by the
62-13 court.>
62-14 <(d) After appointment and execution of bond the receiver
62-15 shall take possession of the assets of the utility specified by the
62-16 court. Until discharged by the court, the receiver shall perform
62-17 the duties that the court directs to preserve the assets and carry
62-18 on the business of the utility and shall strictly observe the final
62-19 order involved.>
62-20 <(e) Upon a showing of good cause by the utility, the court
62-21 may dissolve the receivership and order the assets and control of
62-22 the business returned to the utility>.
62-23 SECTION 3.06. Section 116, Public Utility Regulatory Act
62-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
62-25 as follows:
62-26 Sec. 116. <(a)> A person who owns or operates an ADAD and
62-27 who operates the ADAD without a valid permit or with an expired
63-1 permit or who operates the ADAD in violation of this article or a
63-2 commission rule or order is subject to an administrative penalty in
63-3 accordance with Section 71A of this Act <of not more than $1,000
63-4 for each day or portion of a day during which the ADAD was
63-5 operating in violation of this section.>
63-6 <(b) The administrative penalty authorized by this section
63-7 is civil in nature and is cumulative of any other penalty provided
63-8 by law.>
63-9 <(c) The commission by rule shall prescribe the procedures
63-10 for assessing an administrative penalty under this section. The
63-11 procedures shall require proper notice and hearing in accordance
63-12 with the Administrative Procedure and Texas Register Act (Article
63-13 6252-13a, Vernon's Texas Civil Statutes).>
63-14 <(d) A person may appeal the final order of the commission
63-15 under the Administrative Procedure and Texas Register Act (Article
63-16 6252-13a, Vernon's Texas Civil Statutes), using the substantial
63-17 evidence rule on appeal.>
63-18 <(e) The proceeds of administrative penalties collected
63-19 under this section shall be deposited to the credit of the General
63-20 Revenue Fund>.
63-21 SECTION 3.07. Sections 78 and 80, Public Utility Regulatory
63-22 Act (Article 1446c, Vernon's Texas Civil Statutes), are amended to
63-23 read as follows:
63-24 Sec. 78. An assessment is hereby imposed upon each public
63-25 utility within the commission's jurisdiction, including
63-26 interexchange telecommunications carriers, serving the ultimate
63-27 consumer equal to one-sixth of one percent of its gross receipts
64-1 from rates charged the ultimate consumers in Texas for the purpose
64-2 of defraying the costs and expenses incurred in the administration
64-3 of this Act. The legislature may <Thereafter the commission shall,
64-4 subject to the approval of the Legislature,> adjust this
64-5 assessment to provide a level of income sufficient to fund the
64-6 commission and the office of public utility counsel. Any
64-7 interexchange telecommunications carrier found dominant as to any
64-8 service market under Section 100(b) or filing a petition under
64-9 Section 100(f) of this Act shall be required to reimburse the
64-10 Office of Public Utility Counsel for the costs of participation
64-11 before the commission on behalf of residential ratepayers in any of
64-12 the proceedings under Section 100 of this Act to the extent found
64-13 reasonable by the commission. Recovery of costs under this section
64-14 by the Office of Public Utility Counsel shall not exceed $175,000
64-15 per annum. Nothing in this Act or any other provision of law shall
64-16 prohibit interexchange telecommunications carriers who do not
64-17 provide local exchange telephone service from collecting the fee
64-18 imposed under this Act as an additional item separately stated on
64-19 the customer bill as "Utility Gross Receipts Assessment."
64-20 Sec. 80. (a) All fees, penalties, and interest paid under
64-21 the provisions of Sections 78 and 79 of this article shall be
64-22 collected by the comptroller of public accounts and paid into the
64-23 general revenue fund. <The commission shall notify the comptroller
64-24 of public accounts of any adjustment of the assessment imposed in
64-25 Section 78 when made.>
64-26 (b) All money paid to the commission or to the Office of
64-27 Public Utility Counsel under this Act shall be deposited in the
65-1 state treasury.
65-2 SECTION 3.08. Section 6(c), Chapter 1132, Acts of the 70th
65-3 Legislature, Regular Session, 1987 (Article 4413(55), Vernon's
65-4 Texas Civil Statutes), is amended to read as follows:
65-5 (c) Any order or ruling of the Public Utility Commission of
65-6 Texas entered pursuant to this Act shall be deemed to have been
65-7 entered or adopted under the Public Utility Regulatory Act and, for
65-8 purposes of enforcement, is subject to enforcement pursuant to
65-9 Article XI <Sections 71 through 77> of the Public Utility
65-10 Regulatory Act, and its subsequent amendments.
65-11 SECTION 3.09. (a) This article takes effect September 1,
65-12 1993, and applies to a proceeding for which a final order has not
65-13 been issued before that date.
65-14 (b) The changes in Sections 71A and 116, Public Utility
65-15 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), and
65-16 to Section 6(c), Chapter 1132, Acts of the 70th Legislature,
65-17 Regular Session, 1987 (Article 4413(55), Vernon's Texas Civil
65-18 Statutes), made by this article apply only to a violation committed
65-19 on or after the effective date of this article. A violation
65-20 committed before the effective date of this article is governed by
65-21 the law in effect when the violation occurred, and that law is
65-22 continued in effect for that purpose.
65-23 ARTICLE 4
65-24 SECTION 4.01. Sections 43B(a) and (h), Public Utility
65-25 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
65-26 amended to read as follows:
65-27 (a) Except as otherwise provided by this section, a local
66-1 exchange company that <is a cooperative corporation or that> has
66-2 fewer than 5,000 access lines in service in this state may change
66-3 rates by publishing notice of the change at least 60 days before
66-4 the date of the change in the place and form as prescribed by the
66-5 commission. The notice must include:
66-6 (1) the reasons for the rate change;
66-7 (2) a description of the affected service;
66-8 (3) an explanation of the right of the subscriber to
66-9 petition the commission for a hearing on the rate change; and
66-10 (4) a list of rates that are affected by the proposed
66-11 rate change.
66-12 (h) The commission is granted all necessary power and
66-13 authority to prescribe and collect fees and assessments from local
66-14 exchange companies necessary to recover the commission's and the
66-15 Office of Public Utility Counsel's costs of activities carried out
66-16 and services provided under Subsection (i) of Section 43 and
66-17 Sections 43A, <and> 43B, and 43C of this Act.
66-18 SECTION 4.02. Article VI, Public Utility Regulatory Act
66-19 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
66-20 adding Section 43C to read as follows:
66-21 Sec. 43C. (a) A local exchange company that is a
66-22 cooperative corporation may vote to partially deregulate the
66-23 company by sending a ballot to each corporation member. The ballot
66-24 may be included in a bill or sent separately. The ballot shall
66-25 provide for voting for or against the proposition: "Authorizing
66-26 the partial deregulation of the (name of local exchange company)."
66-27 (b) The company may offer extended local calling services or
67-1 new services on an optional basis, restructure rates of existing
67-2 services, or make changes in its rates or tariffs if:
67-3 (1) a majority of the ballots returned to the company
67-4 not later than the 45th day after the date on which the ballots are
67-5 mailed favor deregulation; and
67-6 (2) the company:
67-7 (A) files concurrently with the commission and
67-8 the office a statement of intent, as prescribed by Subsection (c)
67-9 of this section, not later than the 61st day before the date on
67-10 which the proposed change will take effect;
67-11 (B) provides notice of the proposed change to
67-12 all customers and municipalities as prescribed by Subsection (d) of
67-13 this section; and
67-14 (C) files with the commission affidavits
67-15 verifying the provision of notice as prescribed by Subsection (e)
67-16 of this section.
67-17 (c) The statement of intent required by Subsection (b)(2)(A)
67-18 of this section must include:
67-19 (1) a copy of a resolution approving the proposed
67-20 change and authorizing the filing of the statement of intent signed
67-21 by a majority of the members of the local exchange telephone
67-22 company's board of directors;
67-23 (2) a description of the services affected by the
67-24 proposed change;
67-25 (3) a copy of the proposed tariff for the affected
67-26 service;
67-27 (4) a copy of the customer notice required by
68-1 Subsection (b)(2) of this section;
68-2 (5) the amount by which the company's total gross
68-3 annual revenues will increase or decrease as a result of the
68-4 change; and
68-5 (6) a statement explaining in detail the estimated
68-6 effect of the change on the utility's revenue by revenue class and
68-7 stating the classes and number of classes affected.
68-8 (d) The local exchange company shall provide to all affected
68-9 customers and parties, including municipalities, at least two
68-10 notices of the proposed change by bill insert or by individual
68-11 notice. The company shall provide the first notice not later than
68-12 the 61st day before the date on which the proposed change will take
68-13 effect. The company shall provide the last notice not later than
68-14 the 31st day before the date on which the proposed change will take
68-15 effect. Each notice prescribed by this subsection must include:
68-16 (1) a description of the services affected by the
68-17 proposed change;
68-18 (2) the effective date of the proposed change;
68-19 (3) an explanation of the customer's right to petition
68-20 the commission for a review under Subsection (f) of this section;
68-21 (4) an explanation of the customer's right to obtain a
68-22 copy of the proposed tariff from the company;
68-23 (5) the amount by which the company's total gross
68-24 annual revenues will increase or decrease as a result of the
68-25 proposed change; and
68-26 (6) a list of rates that are affected by the proposed
68-27 rate change.
69-1 (e) Not later than the 15th day before the date on which the
69-2 proposed change will take effect, the local exchange telephone
69-3 company shall file with the commission affidavits that verify that
69-4 the company provided each notice prescribed under Subsection (d) of
69-5 this section.
69-6 (f) The commission shall review a proposed change filed
69-7 under this section if:
69-8 (1) the commission receives, not later than the 30th
69-9 day after the date notice is provided under Subsection (d) of this
69-10 section, complaints relating to the proposed change:
69-11 (A) signed by at least five percent of the
69-12 affected local service customers; or
69-13 (B) from an affected intrastate access customer,
69-14 or group of affected intrastate access customers, that in the
69-15 preceding 12 months accounted for more than 10 percent of the
69-16 company's total intrastate access revenues; or
69-17 (2) the company does not comply with the procedural
69-18 requirements of this section.
69-19 (g) Notwithstanding any other provision of this section, the
69-20 commission may conduct a review in accordance with Section 42 of
69-21 this Act. On review, the commission may suspend the actions of the
69-22 local exchange telephone company during the pendency of review.
69-23 (h) A company that is partially deregulated under this
69-24 section may vote to reverse the deregulation by sending a ballot to
69-25 each corporation member. The ballot may be included in a bill or
69-26 sent separately. The ballot shall provide for voting for or
69-27 against the proposition: "Reversing the partial deregulation of
70-1 the (name of local exchange company)." The partial deregulation is
70-2 reversed if a majority of the ballots returned to the company not
70-3 later than the 45th day after the date on which the ballots are
70-4 mailed favor reversal.
70-5 (i) The commission by rule shall prescribe the voting
70-6 procedures a company is required to use under this section.
70-7 (j) This section does not:
70-8 (1) prohibit a local exchange telephone company from
70-9 filing for a new service or rate change under another applicable
70-10 section of this Act; or
70-11 (2) affect the application of other provisions of this
70-12 Act not directly related to rate-making or the authority of the
70-13 commission to require the company to file reports required under
70-14 this Act or under rules adopted by the commission.
70-15 SECTION 4.03. Section 45, Public Utility Regulatory Act
70-16 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
70-17 as follows:
70-18 Sec. 45. (a) No public utility may, as to rates or
70-19 services, make or grant any unreasonable preference or advantage to
70-20 any corporation or person within any classification, or subject any
70-21 corporation or person within any classification to any unreasonable
70-22 prejudice or disadvantage. No public utility may establish and
70-23 maintain any unreasonable differences as to rates of service either
70-24 as between localities or as between classes of service.
70-25 (b) A public utility may not impose a restriction, including
70-26 a geographic requirement per location or a minimum line
70-27 requirement, that will limit the availability of central office
71-1 based PBX-type services to any business, either individually or as
71-2 part of a sharing arrangement. A public utility may not
71-3 discriminate between individual businesses obtaining central office
71-4 based PBX-type services and businesses obtaining those services
71-5 through a sharing arrangement.
71-6 ARTICLE 5
71-7 SECTION 5.01. Section 23, Public Utility Regulatory Act
71-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
71-9 as follows:
71-10 Sec. 23. (a) Any municipality regulating its public
71-11 utilities pursuant to this Act may <shall> require from those
71-12 utilities all necessary data to make a reasonable determination of
71-13 rate base, expenses, investment, and rate of return within the
71-14 municipal boundaries. The standards for such determination shall
71-15 be based on the procedures and requirements of this Act and said
71-16 municipality shall retain any and all personnel necessary to make
71-17 the determination of reasonable rates required under this Act.
71-18 (b) Not later than the 31st day before the date on which a
71-19 utility files a statement of intent under Section 43(a) of this
71-20 Act, the utility shall provide to each municipality having original
71-21 jurisdiction notice of intent to file the statement. Not later
71-22 than the 30th day after a municipality receives notice of intent to
71-23 file a statement, the municipality may request that the utility
71-24 file with the municipality a statement of intent in accordance with
71-25 Section 43(a) of this Act. If requested, the utility shall file
71-26 the statement of intent with the municipality at the same time the
71-27 statement is filed with the commission and the office.
72-1 SECTION 5.02. Section 43(a), Public Utility Regulatory Act
72-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
72-3 as follows:
72-4 (a) Except as provided by Section 23(b) of this Act, no <No>
72-5 utility may make changes in its rates except by filing a statement
72-6 of intent concurrently with the office and with the regulatory
72-7 authority having original jurisdiction at least 35 days prior to
72-8 the effective date of the proposed change. The statement of intent
72-9 shall include proposed revisions of tariffs and schedules and a
72-10 statement specifying in detail each proposed change, the effect the
72-11 proposed change is expected to have on the revenues of the company,
72-12 the classes and numbers of utility consumers affected, and such
72-13 other information as may be required by the regulatory authority's
72-14 rules and regulations. A copy of the statement of intent shall be
72-15 mailed or delivered to the appropriate officer of each affected
72-16 municipality, and notice shall be given by publication in
72-17 conspicuous form and place of a notice to the public of such
72-18 proposed change once in each week for four successive weeks prior
72-19 to the effective date of the proposed change in a newspaper having
72-20 general circulation in each county containing territory affected by
72-21 the proposed change, and by mail to such other affected persons as
72-22 may be required by the regulatory authority's rules and
72-23 regulations. The regulatory authority may waive the publication of
72-24 notice requirement prescribed by this subsection in a proceeding
72-25 that involves a rate reduction for all affected ratepayers only.
72-26 The applicant shall give notice of the proposed rate change by mail
72-27 to all affected utility customers. The regulatory authority by
73-1 rule shall also define other proceedings for which the publication
73-2 of notice requirement prescribed by this subsection may be waived
73-3 on a showing of good cause, provided that no waiver may be granted
73-4 in any proceeding involving a rate increase to any class or
73-5 category of ratepayer.
73-6 SECTION 5.03. Section 43(g), Public Utility Regulatory Act
73-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
73-8 as follows:
73-9 (g)(1) Except as otherwise provided by this subsection, a
73-10 <A> rate or tariff set by the commission shall not authorize a
73-11 utility to automatically adjust and pass through to its customers
73-12 changes in <fuel or other> costs of the utility, other than fuel
73-13 and costs allowed under Section 19(c)(4) of this Act.
73-14 (2)(A) The commission by rule shall implement
73-15 procedures to provide for the timely adjustment of utility fuel
73-16 billings, with or without a hearing. If the commission holds a
73-17 hearing, the <Any revision of a utility's billings to its
73-18 customers to allow for the recovery of additional fuel costs may be
73-19 made only upon a public hearing and order of the commission.>
73-20 <(B) The> commission may consider any evidence
73-21 that is appropriate and in the public interest at such hearing.
73-22 (B) <(C)> A proceeding under this subsection
73-23 shall not be considered a rate case under Section 43 of this Act.
73-24 (3)(A) <(3) The commission may, after a hearing, grant
73-25 interim relief for fuel cost increases that are the result of
73-26 unusual and emergency circumstances or conditions.>
73-27 <(4)(A)> This subsection applies only to increases or
74-1 decreases in the cost of purchased electricity which have been:
74-2 (i) accepted by a federal regulatory
74-3 authority; or
74-4 (ii) approved after a hearing by the
74-5 Public Utility Commission of Texas.
74-6 (B) The Public Utility Commission of Texas may
74-7 utilize any appropriate method to provide for the adjustment of the
74-8 cost of purchased electricity upon such terms and conditions as the
74-9 commission may determine. Such purchased electricity costs may be
74-10 recovered concurrently with the effective date of the changed costs
74-11 to the purchasing utility or as soon thereafter as is reasonably
74-12 practical.
74-13 SECTION 5.04. Section 43(h), Public Utility Regulatory Act
74-14 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
74-15 as follows:
74-16 (h) The commission by rule may prescribe a schedule for
74-17 electric utilities to appear before the commission in a general
74-18 rate proceeding. The schedule shall cover at least a five-year
74-19 period. The commission shall review and by rule shall revise the
74-20 schedule at least every five years. The rules prescribing the
74-21 schedule must:
74-22 (1) provide that the schedule applies only to
74-23 investor-owned electric utilities and to the electric operations of
74-24 river authorities;
74-25 (2) prescribe the situations under which a utility may
74-26 initiate a rate proceeding before its scheduled time;
74-27 (3) specifically authorize a utility to initiate a
75-1 rate proceeding before its scheduled time in the event of an
75-2 emergency;
75-3 (4) define the emergency conditions that will allow a
75-4 utility to initiate a rate proceeding before its scheduled time;
75-5 and
75-6 (5) define the conditions under which a utility may
75-7 bypass a scheduled rate proceeding if a rate change is not needed
75-8 <A water or sewer utility exempted in Subsection (a) of this
75-9 section may change its rates by filing a statement of change with
75-10 the commission at least 30 days after providing notice of the
75-11 change to its customers. The changed rates may be put into effect
75-12 on the filing of the statement of change. At the request of
75-13 one-tenth of the customers of the utility within 60 days after the
75-14 day the rates are put into effect, the commission may hold a
75-15 hearing, which may be an informal proceeding. On a finding by the
75-16 commission that the changed rates are not just and reasonable, the
75-17 commission shall set the utility's rates according to its usual
75-18 procedure. The utility shall refund or credit against future bills
75-19 all sums collected since the filing of the statement of change in
75-20 excess of the rate finally set plus interest at the current rate as
75-21 finally determined by the commission. No filing for a rate change
75-22 under this section may be made for a period of six months from the
75-23 last such filing by the same utility>.
75-24 SECTION 5.05. Article VI, Public Utility Regulatory Act
75-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
75-26 adding Section 43D to read as follows:
75-27 Sec. 43D. (a) An electric distribution utility that is a
76-1 cooperative corporation may vote to partially deregulate the
76-2 utility by sending a ballot to each corporation member. The ballot
76-3 may be included in a bill or sent separately. The ballot shall
76-4 provide for voting for or against the proposition: "Authorizing
76-5 the partial deregulation of the (name of electric distribution
76-6 utility)."
76-7 (b) The utility may restructure rates of service or make
76-8 changes in its rates or tariffs if:
76-9 (1) a majority of the ballots returned to the utility
76-10 not later than the 45th day after the date on which the ballots are
76-11 mailed authorize deregulation; and
76-12 (2) the utility:
76-13 (A) files concurrently with the commission and
76-14 the office a statement of intent, as prescribed by Subsection (c)
76-15 of this section, not later than the 61st day before the date on
76-16 which the proposed change will take effect;
76-17 (B) provides notice of the proposed change to
76-18 all customers and municipalities as prescribed by Subsection (d) of
76-19 this section; and
76-20 (C) files with the commission affidavits
76-21 verifying the provision of notice as prescribed by Subsection (e)
76-22 of this section.
76-23 (c) The statement of intent required by Subsection (b)(2)(A)
76-24 of this section must include:
76-25 (1) a copy of a resolution approving the proposed
76-26 change in rates and authorizing the filing of the statement of
76-27 intent signed by a majority of the members of the utility's board
77-1 of directors;
77-2 (2) a copy of the proposed tariff for the affected
77-3 service;
77-4 (3) a copy of the customer notice required by
77-5 Subsection (b)(2) of this section; and
77-6 (4) a copy of a statement explaining in detail the
77-7 estimated effect of the change on the utility's total revenue and
77-8 on revenue by customer class and stating the classes and number of
77-9 classes affected.
77-10 (d) The utility shall provide to all affected customers and
77-11 parties, including municipalities, at least two notices of the
77-12 proposed change by bill insert or by individual notice. The
77-13 utility shall provide written individual notice to the utility's 10
77-14 largest customers, as measured by kilowatt-hour consumption, by
77-15 first class mail to each customer's billing address or an
77-16 alternative address previously specified by the customer. The
77-17 utility shall also provide written individual notice to any other
77-18 utility certified to provide retail service in the utility's
77-19 service area. The utility shall provide the first notice to all
77-20 affected customers and parties, including municipalities, not later
77-21 than the 61st day before the date on which the proposed change will
77-22 take effect. The utility shall provide the last notice not later
77-23 than the 31st day before the date on which the proposed change will
77-24 take effect. Each notice prescribed by this subsection must
77-25 include:
77-26 (1) a description of the proposed change, the
77-27 estimated effect of the change on revenue by customer class, the
78-1 number of customers affected by each rate change, and the
78-2 percentage change in base revenue;
78-3 (2) the effective date of the proposed change;
78-4 (3) an explanation of the customer's right to petition
78-5 the commission for a review under Subsection (f) of this section;
78-6 (4) an explanation of the customer's right to obtain
78-7 from the utility a copy of the proposed tariff; and
78-8 (5) an explanation of the customer's right to obtain
78-9 from the utility a copy of the utility's cost of service study.
78-10 (e) Not later than the 15th day before the date on which the
78-11 proposed change will take effect, the utility shall file with the
78-12 commission affidavits that verify that the utility provided each
78-13 notice prescribed by Subsection (d) of this section.
78-14 (f) The commission shall review a proposed change filed
78-15 under this section if:
78-16 (1) the commission receives, not later than the 30th
78-17 day after the date notice is provided under Subsection (d) of this
78-18 section, complaints relating to the proposed change:
78-19 (A) signed by at least five percent of the
78-20 affected customers; or
78-21 (B) from an affected customer or group of
78-22 customers that during the previous year accounted for at least 10
78-23 percent of the utility's annual energy sales to any customer class;
78-24 or
78-25 (2) the utility does not comply with the procedural
78-26 requirements of this section.
78-27 (g) The utility must have completed a cost of service study
79-1 during the five years preceding the date on which the application
79-2 is filed. The study must be available for review by the
79-3 commission, the office, a customer, and any other interested party.
79-4 (h) Notwithstanding any other provision of this section, the
79-5 commission may conduct a review in accordance with Section 42 of
79-6 this Act. On review, the commission may suspend the actions of the
79-7 utility during the pendency of the review.
79-8 (i) A utility that is partially deregulated under this
79-9 section may vote to reverse the deregulation by sending a ballot to
79-10 each corporation member. The ballot may be included in a bill or
79-11 sent separately. The ballot shall provide for voting for or
79-12 against the proposition: "Reversing the partial deregulation of
79-13 the (name of electric distribution utility)." The partial
79-14 deregulation is reversed if a majority of the ballots returned to
79-15 the utility not later than the 45th day after the date on which the
79-16 ballots are mailed favor reversal.
79-17 (j) The commission by rule shall prescribe the voting
79-18 procedures a utility is required to use under this section.
79-19 (k) This section does not:
79-20 (1) prohibit a utility from filing for a rate change
79-21 under another applicable section of this Act; or
79-22 (2) affect the application of other provisions of this
79-23 Act not directly related to rate-making or the authority of the
79-24 commission to require the utility to file reports required under
79-25 this Act or under rules adopted by the commission.
79-26 (l) This section does not authorize a utility to engage in
79-27 predatory or discriminatory pricing in an area that is served by
80-1 the utility and an investor-owned utility.
80-2 ARTICLE 6
80-3 SECTION 6.01. Sections 17(a), (b), and (e), Public Utility
80-4 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
80-5 amended to read as follows:
80-6 (a) Subject to the limitations imposed in this Act, and for
80-7 the purpose of regulating rates and services so that such rates may
80-8 be fair, just, and reasonable, and the services adequate and
80-9 efficient, the governing body of each municipality shall have
80-10 exclusive original jurisdiction over all electric<, water, and
80-11 sewer> utility rates, operations, and services provided by an
80-12 electric<, water, and sewer> utility within its city or town
80-13 limits.
80-14 (b) A <At any time after two years have passed from the date
80-15 this Act becomes effective, a> municipality may elect to have the
80-16 commission exercise exclusive original jurisdiction over electric<,
80-17 water, or sewer> utility rates, operations, and services within the
80-18 incorporated limits of the municipality. The governing body of a
80-19 municipality may by ordinance elect to surrender its original
80-20 jurisdiction to the commission, or the governing body may submit
80-21 the question of the surrender to the qualified voters at a
80-22 municipal election. Upon receipt of a petition signed by the
80-23 lesser of 20,000 or ten percent of the number of qualified voters
80-24 voting in the last preceding general election in that municipality,
80-25 the governing body shall submit the question of the surrender of
80-26 the municipality's original jurisdiction to the commission at a
80-27 municipal election.
81-1 (e) The commission shall have exclusive original
81-2 jurisdiction over electric<, water, and sewer> utility rates,
81-3 operations, and services not within the incorporated limits of a
81-4 municipality exercising exclusive original jurisdiction over those
81-5 rates, operations, and services as provided in this Act.
81-6 SECTION 6.02. Sections 18(p), (q), and (r), Public Utility
81-7 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
81-8 amended to read as follows:
81-9 (p) <Before January 15 of each odd-numbered year, the
81-10 commission shall report to the legislature on the scope of
81-11 competition in regulated telecommunications markets and the impact
81-12 of competition on customers in both competitive and noncompetitive
81-13 markets, with a specific focus on rural markets. The report shall
81-14 include an assessment of the impact of competition on the rates and
81-15 availability of telecommunications services for residential and
81-16 business customers and shall specifically address any effects on
81-17 universal service. The report shall provide a summary of
81-18 commission actions over the preceding two years that reflect
81-19 changes in the scope of competition in regulated telecommunications
81-20 markets. The report shall also include recommendations to the
81-21 legislature for further legislation that the commission finds
81-22 appropriate to promote the public interest in the context of a
81-23 partially competitive telecommunications market.>
81-24 <(q)> The commission may exempt from any requirement of this
81-25 section an interexchange telecommunications carrier that the
81-26 commission determines does not have a significant effect on the
81-27 public interest, and it may exempt any interexchange carrier which
82-1 solely relies on the facilities of others to complete long distance
82-2 calls if the commission deems this action to be in the public
82-3 interest.
82-4 (q) <(r)> Requirements imposed by Subsections (c), (d), (k),
82-5 (l), (m), (n), (o), and (p)<, and (q)> of this section on an
82-6 interexchange telecommunications carrier shall apply to nondominant
82-7 carriers and shall constitute the minimum requirements to be
82-8 imposed by the commission for any dominant carrier.
82-9 SECTION 6.03. Section 26(c), Public Utility Regulatory Act
82-10 (Article 1446c, Vernon's Texas Civil Statutes), as amended by
82-11 Chapters 325 and 1167, Acts of the 71st Legislature, Regular
82-12 Session, 1989, is amended to reconcile those amendments to read as
82-13 follows:
82-14 (c)(1) Ratepayers of a municipally owned electric utility
82-15 outside the municipal limits may appeal any action of the governing
82-16 body affecting the rates of the municipally owned electric utility
82-17 through filing with the commission a petition for review signed by
82-18 the lesser of 10,000 or 5 percent of the ratepayers served by such
82-19 utility outside the municipal limits. For purposes of this
82-20 subsection each person receiving a separate bill shall be
82-21 considered as a ratepayer. But no person shall be considered as
82-22 being more than one ratepayer notwithstanding the number of bills
82-23 received. Such petition for review shall be considered properly
82-24 signed if signed by any person, or spouse of any such person, in
82-25 whose name residential utility service is carried.
82-26 (2) The municipality that owns the electric utility
82-27 shall on request disclose to any person the number of ratepayers
83-1 who reside outside the municipal limits. The municipality shall
83-2 provide the information by telephone or in a written form, as
83-3 preferred by the person making the request. The municipality may
83-4 not charge a fee for providing the information. The municipality
83-5 shall on request provide to any person a list of the names and
83-6 addresses of the ratepayers who reside outside the municipal
83-7 limits. The municipality may charge a reasonable fee to cover the
83-8 cost of providing the list.
83-9 (3) <(2)> Not later than the 14th day after the date
83-10 on which the governing body makes a final decision, the
83-11 municipality shall issue a written report stating the effect of the
83-12 decision on each class of ratepayers. The appeal process shall be
83-13 instituted by filing a petition for review with the commission and
83-14 serving copies on all parties to the original rate proceeding. The
83-15 petition must be filed not later than the 45th day after the date
83-16 on which the municipality issues the written report prescribed by
83-17 this subsection.
83-18 (4) Not later than the 90th day after the date on
83-19 which a petition for review that meets the requirements of this
83-20 subsection is filed, the municipality shall file with the
83-21 commission a rate application that complies in all material
83-22 respects with the rules and forms prescribed by the commission.
83-23 The commission may, for good cause shown, extend the <time> period
83-24 for filing the rate application.
83-25 SECTION 6.04. Section 41B, Public Utility Regulatory Act
83-26 (Article 1446c, Vernon's Texas Civil Statutes), as added by Chapter
83-27 1182, Acts of the 71st Legislature, Regular Session, 1989, is
84-1 amended to read as follows:
84-2 Sec. 41C <41B>. The commission shall not have the authority
84-3 to interfere with employee wages and benefits, working conditions,
84-4 or other terms or conditions of employment that are the product of
84-5 a collective bargaining agreement recognized under federal law.
84-6 Employee wage rates and benefit levels that are the product of such
84-7 bargaining shall be presumed reasonable.
84-8 SECTION 6.05. Section 43(c), Public Utility Regulatory Act
84-9 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
84-10 as follows:
84-11 (c) Whenever there is filed with the Regulatory Authority
84-12 any schedule modifying or resulting in a change in any rates then
84-13 in force, the Regulatory Authority shall on complaint by any
84-14 affected person or may on its own motion, at any time within 30
84-15 days from the date when such change would or has become effective,
84-16 and, if it so orders, without answer or other formal pleading by
84-17 the utility, but on reasonable notice, including notice to the
84-18 governing bodies of all affected municipalities and counties, enter
84-19 on a hearing to determine the propriety of such change. The
84-20 Regulatory Authority shall hold such a hearing in every case in
84-21 which the change constitutes a major change in rates, provided that
84-22 an informal proceeding may satisfy this requirement if no complaint
84-23 has been received before the expiration of 45 days after notice of
84-24 the change shall have been filed. In each case where the
84-25 commission determines it is in the public interest to collect
84-26 testimony at a regional hearing for the inclusion in the record,
84-27 the commission shall hold a regional hearing at an appropriate
85-1 location. A regional hearing is not required in a case involving a
85-2 <water, sewer, or> member-owned utility, unless the commission
85-3 determines otherwise.
85-4 SECTION 6.06. Section 49, Public Utility Regulatory Act
85-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
85-6 as follows:
85-7 Sec. 49. For the purposes of this article only, "retail<:
85-8 (a) "Retail> public utility" means any person, corporation, <water
85-9 supply or sewer service corporation,> municipality, political
85-10 subdivision or agency, or cooperative corporation, now or hereafter
85-11 operating, maintaining, or controlling in Texas facilities for
85-12 providing retail utility service.
85-13 <(b) For the purposes of this article only, "public utility"
85-14 includes a water supply or sewer service corporation.>
85-15 SECTION 6.07. Sections 72(a) and (b), Public Utility
85-16 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
85-17 amended to read as follows:
85-18 (a) Any public utility<, water supply or sewer service
85-19 corporation,> or affiliated interest that knowingly violates a
85-20 provision of this Act, fails to perform a duty imposed on it, or
85-21 fails, neglects, or refuses to obey an order, rule, regulation,
85-22 direction, or requirement of the commission or decree or judgment
85-23 of a court, shall be subject to a civil penalty of not less than
85-24 $1,000 nor more than $5,000 for each offense.
85-25 (b) A public utility<, water supply or sewer service
85-26 corporation,> or affiliated interest commits a separate offense
85-27 each day it continues to violate the provisions of Subsection (a)
86-1 of this section.
86-2 SECTION 6.08. Section 74(a), Public Utility Regulatory Act
86-3 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
86-4 as follows:
86-5 (a) Except as provided by Section 117 <87B> of this Act, any
86-6 person or persons who willfully and knowingly violate the
86-7 provisions of this Act shall be guilty of a third degree felony.
86-8 SECTION 6.09. The following sections of the Public Utility
86-9 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
86-10 repealed:
86-11 (1) 71B;
86-12 (2) 87A; and
86-13 (3) 90.
86-14 ARTICLE 7
86-15 SECTION 7.01. Except as otherwise provided by this Act, this
86-16 Act takes effect September 1, 1993.
86-17 SECTION 7.02. The importance of this legislation and the
86-18 crowded condition of the calendars in both houses create an
86-19 emergency and an imperative public necessity that the
86-20 constitutional rule requiring bills to be read on three several
86-21 days in each house be suspended, and this rule is hereby suspended,
86-22 and that this Act take effect and be in force according to its
86-23 terms, and it is so enacted.