1-1 By: Parker S.B. No. 498
1-2 (In the Senate - Filed February 25, 1993; March 1, 1993, read
1-3 first time and referred to Committee on Economic Development;
1-4 April 16, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 0; April 16, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Parker x
1-10 Lucio x
1-11 Ellis x
1-12 Haley x
1-13 Harris of Dallas x
1-14 Harris of Tarrant x
1-15 Leedom x
1-16 Madla x
1-17 Rosson x
1-18 Shapiro x
1-19 Wentworth x
1-20 COMMITTEE SUBSTITUTE FOR S.B. No. 498 By: Parker
1-21 A BILL TO BE ENTITLED
1-22 AN ACT
1-23 relating to continuation, operations, and functions of the Public
1-24 Utility Commission of Texas and the Office of Public Utility
1-25 Counsel; providing penalties.
1-26 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-27 ARTICLE 1
1-28 SECTION 1.01. Section 3, Public Utility Regulatory Act
1-29 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
1-30 amending Subdivisions (a), (c), (u), and (v) and adding Subdivision
1-31 (f) to read as follows:
1-32 (a) The term "person," when used in this Act, includes
1-33 natural persons, partnerships of two or more persons having a joint
1-34 or common interest, mutual or cooperative associations, <water
1-35 supply or sewer service corporations,> and corporations, as herein
1-36 defined.
1-37 (c) The term "public utility" or "utility," when used in
1-38 this Act, includes any person, corporation, river authority,
1-39 cooperative corporation, or any combination thereof, other than a
1-40 municipal corporation <or a water supply or sewer service
1-41 corporation>, or their lessees, trustees, and receivers, now or
1-42 hereafter owning or operating for compensation in this state
1-43 equipment or facilities for:
1-44 (1) producing, generating, transmitting, distributing,
1-45 selling, or furnishing electricity ("electric utilities"
1-46 hereinafter) provided, however, that this definition shall not be
1-47 construed to apply to or include a qualifying small power producer
1-48 or qualifying cogenerator, as defined in Sections 3(17)(D) and
1-49 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
1-50 796(17)(D) and 796(18)(C));
1-51 (2)(A) the conveyance, transmission, or reception of
1-52 communications over a telephone system as a dominant carrier as
1-53 hereinafter defined ("telecommunications utilities" hereinafter);
1-54 provided that no person or corporation not otherwise a public
1-55 utility within the meaning of this Act shall be deemed such solely
1-56 because of the furnishing or furnishing and maintenance of a
1-57 private system or the manufacture, distribution, installation, or
1-58 maintenance of customer premise communications equipment and
1-59 accessories; and provided further that nothing in this Act shall be
1-60 construed to apply to telegraph services, television stations,
1-61 radio stations, community antenna television services, or
1-62 radio-telephone services that may be authorized under the Public
1-63 Mobile Radio Services rules of the Federal Communications
1-64 Commission, other than such radio-telephone services provided by
1-65 wire-line telephone companies under the Domestic Public Land Mobile
1-66 Radio Service and Rural Radio Service rules of the Federal
1-67 Communications Commission; and provided further that interexchange
1-68 telecommunications carriers (including resellers of interexchange
2-1 telecommunications services), specialized communications common
2-2 carriers, other resellers of communications, other communications
2-3 carriers who convey, transmit, or receive communications in whole
2-4 or in part over a telephone system, and providers of operator
2-5 services as defined in Section 18A(a) of this Act (except that
2-6 subscribers to customer-owned pay telephone service shall not be
2-7 deemed to be telecommunications utilities) <who are not dominant
2-8 carriers> are also telecommunications utilities, but the
2-9 commission's regulatory authority as to them is only as hereinafter
2-10 defined;
2-11 (B) "dominant carrier" when used in this Act
2-12 means (i) a provider of any particular communication service which
2-13 is provided in whole or in part over a telephone system who as to
2-14 such service has sufficient market power in a telecommunications
2-15 market as determined by the commission to enable such provider to
2-16 control prices in a manner adverse to the public interest for such
2-17 service in such market; and (ii) any provider of local exchange
2-18 telephone service within a certificated exchange area as to such
2-19 service. A telecommunications market shall be statewide until
2-20 January 1, 1985. After this date the commission may, if it
2-21 determines that the public interest will be served, establish
2-22 separate markets within the state. Prior to January 1, 1985, the
2-23 commission shall hold such hearings and require such evidence as is
2-24 necessary to carry out the public purpose of this Act and to
2-25 determine the need and effect of establishing separate markets.
2-26 Any such provider determined to be a dominant carrier as to a
2-27 particular telecommunications service in a market shall not be
2-28 presumed to be a dominant carrier of a different telecommunications
2-29 service in that market. The term does not include an interexchange
2-30 carrier that is not a certificated local exchange carrier, with
2-31 respect to interexchange services.
2-32 (3) The term "public utility" or "utility" shall not
2-33 include any person or corporation not otherwise a public utility
2-34 that furnishes the services or commodity described in any paragraph
2-35 of this subsection only to itself, its employees, or tenants as an
2-36 incident of such employee service or tenancy, when such service or
2-37 commodity is not resold to or used by others. The term "electric
2-38 utility" shall not include any person or corporation not otherwise
2-39 a public utility that owns or operates in this state equipment or
2-40 facilities for producing, generating, transmitting, distributing,
2-41 selling, or furnishing electric energy to an electric utility, if
2-42 the equipment or facilities are used primarily for the production
2-43 and generation of electric energy for consumption by the person or
2-44 corporation. The term "public utility," "utility," or "electric
2-45 utility" shall not include any person or corporation not otherwise
2-46 a public utility that owns or operates in this state a recreational
2-47 vehicle park that provides metered electric service in accordance
2-48 with Article 1446d-2, Revised Statutes. A recreational vehicle
2-49 park owner is considered a public utility if the owner fails to
2-50 comply with Article 1446d-2, Revised Statutes, with regard to the
2-51 metered sale of electricity at the recreational vehicle park.
2-52 (f) "Office" means the Office of Public Utility Counsel.
2-53 (u) <"Water supply or sewer service corporation" means a
2-54 nonprofit, member-owned corporation organized and operating under
2-55 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933,
2-56 as amended (Article 1434a, Vernon's Texas Civil Statutes).>
2-57 <(v)> "Local exchange company" means a telecommunications
2-58 utility certificated to provide local exchange service within the
2-59 state.
2-60 SECTION 1.02. Section 5, Public Utility Regulatory Act
2-61 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
2-62 as follows:
2-63 Sec. 5. A commission, to be known as the "Public Utility
2-64 Commission of Texas" is hereby created. It shall consist of three
2-65 commissioners, who shall be appointed to staggered, six-year terms
2-66 by the governor, with the advice and consent of two-thirds of the
2-67 members of the senate present, and who shall have and exercise the
2-68 jurisdiction and powers herein conferred upon the commission. Each
2-69 commissioner shall hold office until his successor is appointed and
2-70 qualified. The governor shall designate a member of the commission
3-1 as the chairman of the commission to serve in that capacity at the
3-2 pleasure of the governor <At its first meeting following the
3-3 biennial appointment and qualification of a commissioner, the
3-4 commission shall elect one of the commissioners chairman>.
3-5 Appointments to the commission shall be made without regard to the
3-6 race, color, handicap <creed>, sex, religion, age, or national
3-7 origin of the appointees.
3-8 SECTION 1.03. Section 5a, Public Utility Regulatory Act
3-9 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
3-10 as follows:
3-11 Sec. 5a. The Public Utility Commission of Texas and the
3-12 Office of Public Utility Counsel are subject to Chapter 325,
3-13 Government Code (Texas Sunset Act). Unless continued in existence
3-14 as provided by that chapter, the commission and the office <Office
3-15 of Public Utility Counsel> are abolished and this Act expires
3-16 September 1, 2001 <1993>.
3-17 SECTION 1.04. Section 6, Public Utility Regulatory Act
3-18 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
3-19 amending Subsections (a), (b), and (k) and adding Subsections (g),
3-20 (l), (m), (n), (o), and (p) to read as follows:
3-21 (a) To be eligible for appointment as a commissioner, a
3-22 person must be a qualified voter<, not less than 30 years of age>,
3-23 a citizen of the United States, and a resident of the State of
3-24 Texas. No person is eligible for appointment as a commissioner if
3-25 at any time during the two-year period immediately preceding his
3-26 appointment he personally served as an officer, director, owner,
3-27 employee, partner, or legal representative of any public utility or
3-28 any affiliated interest, or he owned or controlled, directly or
3-29 indirectly, stocks or bonds of any class with a value of $10,000,
3-30 or more in a public utility or any affiliated interest. Each
3-31 commissioner shall qualify for office by taking the oath prescribed
3-32 for other state officers and shall execute a bond for $5,000
3-33 payable to the state and conditioned on the faithful performance of
3-34 his duties. All members must be representatives of the general
3-35 public. A person may not serve as a member of the commission or
3-36 act as the legal counsel to the commission if the person <who> is
3-37 required to register as a lobbyist under Chapter 305, Government
3-38 Code, and its subsequent amendments, because of the person's
3-39 activities for compensation on behalf of a profession related to
3-40 the operation of the commission <may not serve as a member of the
3-41 commission or public utility counsel or act as the general counsel
3-42 to the commission>.
3-43 (b) No commissioner or employee of the commission may do any
3-44 of the following during his period of service with the commission:
3-45 (1) have any pecuniary interest, either as an officer,
3-46 director, partner, owner, employee, attorney, consultant, or
3-47 otherwise, in any public utility or affiliated interest, or in any
3-48 person or corporation or other business entity a significant
3-49 portion of whose business consists of furnishing goods or services
3-50 to public utilities or affiliated interests, but not including a
3-51 nonprofit group or association solely supported by gratuitous
3-52 contributions of money, property or services, other than a trade
3-53 association as defined by Subsection (n) of this section;
3-54 (2) own or control any securities in a public utility
3-55 or affiliated interest, either directly or indirectly;
3-56 (3) accept any gift, gratuity, or entertainment
3-57 whatsoever from any public utility or affiliated interest, or from
3-58 any person, corporation, agent, representative, employee, or other
3-59 business entity a significant portion of whose business consists of
3-60 furnishing goods or services to public utilities or affiliated
3-61 interests, or from any agent, representative, attorney, employee,
3-62 officer, owner, director, or partner of any such business entity or
3-63 of any public utility or affiliated interest; provided, however,
3-64 that the receipt and acceptance of any gifts, gratuities, or
3-65 entertainment after termination of service with the commission
3-66 whose cumulative value in any one-year period is less than $100
3-67 shall not constitute a violation of this Act.
3-68 (g) A person is not eligible for appointment as a public
3-69 member of the commission or for employment as the general counsel
3-70 or executive director of the commission if:
4-1 (1) the person serves on the board of directors of a
4-2 company that supplies fuel, services, or products to regulated or
4-3 unregulated electric or telecommunications utilities; or
4-4 (2) the person or the person's spouse:
4-5 (A) is employed by or participates in the
4-6 management of a business entity or other organization regulated by
4-7 the commission or receiving funds from the commission;
4-8 (B) owns or controls, directly or indirectly,
4-9 more than a 10 percent interest or a pecuniary interest with a
4-10 value exceeding $10,000 in:
4-11 (i) a business entity or other
4-12 organization regulated by the commission or receiving funds from
4-13 the commission; or
4-14 (ii) any utility competitor, utility
4-15 supplier, or other entity affected by a commission decision in a
4-16 manner other than by the setting of rates for that class of
4-17 customer;
4-18 (C) uses or receives a substantial amount of
4-19 tangible goods, services, or funds from the commission, other than
4-20 compensation or reimbursement authorized by law for commission
4-21 membership, attendance, or expenses; or
4-22 (D) notwithstanding Paragraph (B) of this
4-23 subdivision, has an interest in a mutual fund or retirement fund in
4-24 which more than 10 percent of the fund's holdings is in a single
4-25 utility, utility competitor, or utility supplier in this state and
4-26 the person does not disclose this information to the governor,
4-27 senate, commission, or other entity, as appropriate.
4-28 (k) The commission shall provide to <require> its members
4-29 and employees, <to read this section and> as often as necessary,
4-30 <shall provide> information regarding their qualification for
4-31 office or employment under this Act and their responsibilities
4-32 under applicable laws relating to standards of conduct for state
4-33 officers or <and> employees.
4-34 (l) An officer, employee, or paid consultant of a trade
4-35 association in the field of public utilities may not be a member or
4-36 employee of the commission who is exempt from the state's position
4-37 classification plan or is compensated at or above the amount
4-38 prescribed by the General Appropriations Act for step 1, salary
4-39 group 17, of the position classification salary schedule.
4-40 (m) A person who is a spouse of an officer, manager, or paid
4-41 consultant of a trade association in the field of public utilities
4-42 may not be a commission member and may not be a commission employee
4-43 who is exempt from the state's position classification plan or is
4-44 compensated at or above the amount prescribed by the General
4-45 Appropriations Act for step 1, salary group 17, of the position
4-46 classification salary schedule.
4-47 (n) For the purposes of this section, a trade association is
4-48 a nonprofit, cooperative, and voluntarily joined association of
4-49 business or professional persons who are employed by public
4-50 utilities or utility competitors to assist the public utility
4-51 industry, a utility competitor, or the industry's or competitor's
4-52 employees in dealing with mutual business or professional problems
4-53 and in promoting their common interest.
4-54 (o) In this section, an entity or utility supplier is
4-55 considered to be affected in a manner other than by the setting of
4-56 rates for that class of customer if during a relevant calendar year
4-57 the entity provides goods, products, fuel, or services to a
4-58 regulated or unregulated provider of telecommunications or electric
4-59 services or to an affiliated interest in an amount equal to the
4-60 lesser of $10,000 or 10 percent of the person's business.
4-61 (p) Notwithstanding any other provision of this Act, a
4-62 person otherwise ineligible because of the application of Paragraph
4-63 (B) of Subdivision (2) of Subsection (g) of this section may be
4-64 appointed to the commission and serve as a commissioner or may be
4-65 employed as the general counsel or executive director if the
4-66 person:
4-67 (1) notifies the attorney general and commission that
4-68 the person is ineligible because of the application of Paragraph
4-69 (B) of Subdivision (2) of Subsection (g) of this section; and
4-70 (2) divests the person or the person's spouse of the
5-1 ownership or control before beginning service or employment, or
5-2 within a reasonable time if the person is already serving or
5-3 employed at the time Paragraph (B) of Subdivision (2) of Subsection
5-4 (g) of this section first applies to the person.
5-5 SECTION 1.05. Section 6A, Public Utility Regulatory Act
5-6 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
5-7 as follows:
5-8 Sec. 6A. (a) It is a ground for removal from the commission
5-9 if a member:
5-10 (1) does not have at the time of appointment the
5-11 qualifications required by Section 6 of this Act; <for appointment
5-12 to the commission; or>
5-13 (2) does not maintain during <the> service on the
5-14 commission the qualifications required by Section 6 of this Act;
5-15 (3) violates a prohibition established by Section 6 of
5-16 this Act;
5-17 (4) cannot discharge the member's duties for a
5-18 substantial part of the term for which the member is appointed
5-19 because of illness or disability; or
5-20 (5) is absent from more than half of the regularly
5-21 scheduled commission meetings that the member is eligible to attend
5-22 during a calendar year unless the absence is excused by majority
5-23 vote of the commission <for appointment to the commission>.
5-24 (b) The validity of an action of the commission is not
5-25 affected by the fact that it is <was> taken when a ground for
5-26 removal of a <member of the> commission member exists <existed>.
5-27 (c) If the executive director has knowledge that a potential
5-28 ground for removal exists, the executive director shall notify the
5-29 governor and the attorney general that a potential ground for
5-30 removal exists.
5-31 SECTION 1.06. Subsections (a), (d), (e), and (f), Section 8,
5-32 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
5-33 Statutes), are amended to read as follows:
5-34 (a) The commission shall employ an executive director, a
5-35 general counsel, and such officers<, administrative law judges,
5-36 hearing examiners, investigators, lawyers, engineers, economists,
5-37 consultants, statisticians, accountants, administrative assistants,
5-38 inspectors, clerical staff,> and other employees as it deems
5-39 necessary to carry out the provisions of this Act. All employees
5-40 receive such compensation as is fixed by the legislature. The
5-41 commission shall develop and implement policies that clearly define
5-42 the respective responsibilities of the commission and the staff of
5-43 the commission.
5-44 (d) <The commission shall employ administrative law judges
5-45 to preside at hearings of major importance before the commission.
5-46 An administrative law judge must be a licensed attorney with not
5-47 less than five years' general experience or three years' experience
5-48 in utility regulatory law. The administrative law judge shall
5-49 perform his duties independently from the commission.>
5-50 <(e)> The executive director or the executive director's
5-51 <his> designee shall develop an intra-agency <intraagency> career
5-52 ladder program. The program shall require intra-agency posting of
5-53 all non-entry-level positions concurrently with any public
5-54 posting<, one part of which shall be the intraagency posting of all
5-55 nonentry level positions for at least 10 days before any public
5-56 posting>. The executive director or the executive director's <his>
5-57 designee shall develop a system of annual performance evaluations
5-58 <based on measurable job tasks>. All merit pay for commission
5-59 employees must be based on the system established under this
5-60 section.
5-61 (e) <(f)> The executive director or the executive director's
5-62 <his/her> designee shall prepare and maintain a written policy
5-63 statement <plan> to assure implementation of a program of equal
5-64 employment opportunity under which <whereby> all personnel
5-65 transactions are made without regard to race, color, handicap
5-66 <disability>, sex, religion, age, or national origin. The policy
5-67 statement must <plans shall> include:
5-68 (1) personnel policies, including policies relating to
5-69 recruitment, evaluation, selection, appointment, training, and
5-70 promotion of personnel <a comprehensive analysis of all the
6-1 agency's work force by race, sex, ethnic origin, class of position,
6-2 and salary or wage>;
6-3 (2) a comprehensive analysis of the commission work
6-4 force that meets federal and state guidelines <plans for
6-5 recruitment, evaluation, selection, appointment, training,
6-6 promotion, and other personnel policies>;
6-7 (3) procedures by which a determination can be made of
6-8 significant underutilization in the commission work force of all
6-9 persons for whom federal or state guidelines encourage a more
6-10 equitable balance <steps reasonably designed to overcome any
6-11 identified underutilization of minorities and women in the agency's
6-12 work force>; and
6-13 (4) reasonable methods to address those areas of
6-14 significant underutilization appropriately.
6-15 (f) A policy statement prepared under Subsection (e) of this
6-16 section must <objectives and goals, timetables for the achievement
6-17 of the objectives and goals, and assignments of responsibility for
6-18 their achievement.>
6-19 <The plans shall be filed with the governor's office within
6-20 60 days of the effective date of this Act,> cover an annual period,
6-21 <and> be updated at least annually, and be filed with the
6-22 governor's office and the Commission on Human Rights.
6-23 (g) The governor's office shall deliver a biennial report to
6-24 the legislature based on the information received under Subsection
6-25 (f) of this section. The report may be made separately or as a
6-26 part of other biennial reports made to the legislature<. Progress
6-27 reports shall be submitted to the governor's office within 30 days
6-28 of November 1 and April 1 of each year and shall include the steps
6-29 the agency has taken within the reporting period to comply with
6-30 these requirements>.
6-31 SECTION 1.07. Section 10, Public Utility Regulatory Act
6-32 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
6-33 as follows:
6-34 Sec. 10. (a) The principal office of the commission shall
6-35 be located in the City of Austin, Texas, and shall be open daily
6-36 during the usual business hours, Saturdays, Sundays, and legal
6-37 holidays excepted. The commission shall hold meetings at its
6-38 office and at such other convenient places in the state as shall be
6-39 expedient and necessary for the proper performance of its duties.
6-40 (b) The commission shall develop and implement policies that
6-41 provide the public with a reasonable opportunity to appear before
6-42 the commission and to speak on any issue under the jurisdiction of
6-43 the commission.
6-44 SECTION 1.08. Subsection (a), Section 14, Public Utility
6-45 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
6-46 amended to read as follows:
6-47 (a) The commission shall file annually with the governor and
6-48 the presiding officer of each house of the legislature a complete
6-49 and detailed written report accounting for all funds received and
6-50 disbursed by the commission during the preceding fiscal year. The
6-51 annual report must be in the form and reported in the time provided
6-52 by the General Appropriations Act <publish an annual report to the
6-53 governor, summarizing its proceedings, listing its receipts and the
6-54 sources of its receipts, listing its expenditures and the nature of
6-55 such expenditures, and setting forth such other information
6-56 concerning the operations of the commission and the public utility
6-57 industry as it considers of general interest>.
6-58 SECTION 1.09. Section 14A, Public Utility Regulatory Act
6-59 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
6-60 as follows:
6-61 Sec. 14A. (a) The commission shall prepare information of
6-62 public <consumer> interest describing the <regulatory> functions of
6-63 the commission and <describing> the commission's procedures by
6-64 which <consumer> complaints are filed with and resolved by the
6-65 commission. The commission shall make the information available to
6-66 the <general> public and appropriate state agencies.
6-67 (b) The commission by rule shall establish methods by which
6-68 consumers and service recipients are notified of the name, mailing
6-69 address, and telephone number of the commission for the purpose of
6-70 directing complaints to the commission.
7-1 (c) The commission shall prepare and maintain a written plan
7-2 that describes how a person who does not speak English can be
7-3 provided reasonable access to the commission's programs. The
7-4 commission shall also comply with federal and state laws for
7-5 program and facility accessibility.
7-6 SECTION 1.10. Subsections (a) and (b), Section 83, Public
7-7 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
7-8 Statutes), are amended to read as follows:
7-9 (a) Any affected person may complain to the regulatory
7-10 authority in writing setting forth any act or thing done or omitted
7-11 to be done by any public utility in violation or claimed violation
7-12 of any law which the regulatory authority has jurisdiction to
7-13 administer, or of any order, ordinance, rule, or regulation of the
7-14 regulatory authority. The commission shall keep an information
7-15 file about each complaint filed with the commission that the
7-16 commission has authority to resolve <relating to a utility>. The
7-17 commission shall retain the file for a reasonable period.
7-18 (b) If a written complaint is filed with the commission that
7-19 the commission has authority to resolve <relating to a utility>,
7-20 the commission, at least <as frequently as> quarterly and until
7-21 final disposition of the complaint, shall notify the parties to the
7-22 complaint of the status of the complaint unless the notice would
7-23 jeopardize an undercover investigation.
7-24 SECTION 1.11. The changes in law made by this article
7-25 relating to the requirements for membership on the Public Utility
7-26 Commission of Texas or to employment as executive director or
7-27 general counsel of the commission apply only to a person appointed
7-28 or hired, as appropriate, on or after the effective date of this
7-29 Act and do not affect the entitlement of a member serving on the
7-30 commission on August 31, 1993, to continue to hold office for the
7-31 remainder of the term for which the person was appointed or the
7-32 ability of a person serving as executive director or general
7-33 counsel on August 31, 1993, to continue to hold that position.
7-34 ARTICLE 2
7-35 SECTION 2.01. (a) Article II, Public Utility Regulatory Act
7-36 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
7-37 adding Section 5b to read as follows:
7-38 Sec. 5b. The commission is subject to the requirements of
7-39 Article 13, State Purchasing and General Services Act (Article
7-40 601b, Vernon's Texas Civil Statutes), and its subsequent
7-41 amendments.
7-42 (b) This section takes effect September 1, 1995.
7-43 SECTION 2.02. Subsections (i) and (j), Section 6, Public
7-44 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
7-45 Statutes), are amended to read as follows:
7-46 (i) No commissioner shall within two years, and no employee
7-47 of the commission or of the State Office of Administrative Hearings
7-48 involved in hearing utility cases shall, within one year after his
7-49 employment with the commission or the State Office of
7-50 Administrative Hearings has ceased:
7-51 (1)<,> be employed by a public utility which was in
7-52 the scope of the commissioner's or employee's official
7-53 responsibility while the commissioner or employee was associated
7-54 with the commission or the State Office of Administrative Hearings;
7-55 or
7-56 (2) be employed by a utility competitor, utility
7-57 supplier, or other entity affected in a manner other than by the
7-58 setting of rates for that class of customer, provided that this
7-59 subdivision does not apply to an employee other than the general
7-60 counsel or executive director.
7-61 (j) During the time a commissioner or employee of the
7-62 commission or of the State Office of Administrative Hearings
7-63 involved in hearing utility cases is associated with the commission
7-64 or the State Office of Administrative Hearings or at any time
7-65 after, the commissioner or employee may not represent a person,
7-66 corporation, or other business entity before the commission, the
7-67 State Office of Administrative Hearings, or a court in a matter in
7-68 which the commissioner or employee was personally involved while
7-69 associated with the commission or the State Office of
7-70 Administrative Hearings or a matter that was within the
8-1 commissioner's or employee's official responsibility while the
8-2 commissioner or employee was associated with the commission or the
8-3 State Office of Administrative Hearings.
8-4 SECTION 2.03. Article III, Public Utility Regulatory Act
8-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
8-6 amending Subsections (b) and (c) of Section 8 and adding Section 8A
8-7 to read as follows:
8-8 (b) The executive director is responsible for the day-to-day
8-9 operations of the agency and shall coordinate the activities of
8-10 commission employees. The executive director shall coordinate with
8-11 the general counsel in providing assistance and technical advice to
8-12 the commissioners in evaluating the evidence and recommendations
8-13 offered by the utility division of the State Office of
8-14 Administrative Hearings <commission shall employ the following:>
8-15 <(1) an executive director;>
8-16 <(2) a director of hearings who has wide experience in
8-17 utility regulation and rate determination;>
8-18 <(3) a chief engineer who is a registered engineer and
8-19 an expert in public utility engineering and rate matters;>
8-20 <(4) a chief accountant who is a certified public
8-21 accountant, experienced in public utility accounting;>
8-22 <(5) a director of research who is experienced in the
8-23 conduct of analyses of industry, economics, energy, fuel, and other
8-24 related matters that the commission may want to undertake;>
8-25 <(6) a director of consumer affairs and public
8-26 information;>
8-27 <(7) a director of utility evaluation;>
8-28 <(8) a director of energy conservation; and>
8-29 <(9) a general counsel>.
8-30 (c) The <general counsel and his staff are responsible for
8-31 the gathering of information relating to all matters within the
8-32 authority of the commission.>
8-33 <The> duties of the general counsel and commission staff
8-34 include:
8-35 (1) accumulation of <evidence and other> information
8-36 from public utilities and from within <the accounting and technical
8-37 and other staffs of> the commission and from other sources for the
8-38 purposes specified herein;
8-39 (2) provision of legal advice and counsel to the
8-40 commission, executive director, and staff as a nonadvocate in any
8-41 case before the commission <preparation and presentation of such
8-42 evidence before the commission or its appointed examiner in
8-43 proceedings>;
8-44 (3) conduct of investigations of public utilities
8-45 under the jurisdiction of the commission;
8-46 (4) preparation of proposed changes in the rules of
8-47 the commission;
8-48 (5) preparation of recommendations that the commission
8-49 undertake investigation of any matter within its authority;
8-50 (6) preparation of recommendations and a report of
8-51 such staff for inclusion in the annual report of the commission;
8-52 and
8-53 (7) <protection and representation of the public
8-54 interest and coordination and direction of the preparation and
8-55 presentation of evidence from the commission staff in all cases
8-56 before the commission as necessary to effect the objectives and
8-57 purposes stated in this Act and ensure protection of the public
8-58 interest; and>
8-59 <(8)> such other activities as are reasonably
8-60 necessary to enable the staff <him> to perform its <his> duties.
8-61 Sec. 8A. (a) In addition to the other duties prescribed by
8-62 this Act, the general counsel and commission staff shall provide
8-63 technical assistance to the commissioners and administrative law
8-64 judges. Except as provided by Subsections (b) and (g) of this
8-65 section, the general counsel or a member of the staff may not
8-66 testify in a hearing in a case before the commission unless the
8-67 administrative law judge or the commission determines that
8-68 testimony on an issue is necessary to complete the record and that
8-69 another party has not addressed the issue.
8-70 (b) Except as otherwise specifically provided by this Act,
9-1 the general counsel and the staff may not be an advocate or a party
9-2 separate from the commission in any proceeding under the
9-3 jurisdiction of the commission. This subsection does not affect
9-4 the authority of the commission to enforce this Act or the
9-5 authority of the general counsel or the staff to handle
9-6 administrative and enforcement actions such as administrative
9-7 penalties and complaints. In an administrative or enforcement
9-8 action that is a docketed case, the general counsel and staff may
9-9 participate as a representative of the agency.
9-10 (c) For the purpose of completing the record in a contested
9-11 case, the staff, on request of a commissioner or administrative law
9-12 judge, shall audit, analyze, examine, review, and investigate:
9-13 (1) rates and charges;
9-14 (2) services provided;
9-15 (3) evidence admitted during a proceeding; and
9-16 (4) any other matter within the commission's
9-17 jurisdiction.
9-18 (d) If an administrative law judge or a commissioner
9-19 receives during a contested proceeding an audit, analysis, or
9-20 report under Subsection (c) of this section, the audit, analysis,
9-21 or report shall be admitted into the record of the proceeding.
9-22 (e) The general counsel and staff may provide technical
9-23 analytical commentary on evidence admitted into the record in a
9-24 proceeding before the commission. Except as required under
9-25 Subsection (a) of this section, the general counsel and staff may
9-26 not offer or consider evidence that is not in the record.
9-27 (f) Commentary prepared by the general counsel or staff on a
9-28 matter before the commission is for the use of the commissioners
9-29 and the administrative law judge and is confidential and not
9-30 subject to subpoena or discovery unless:
9-31 (1) the commission or an administrative law judge
9-32 admits the commentary into the record of the proceeding; or
9-33 (2) the commission agrees to disclose the commentary.
9-34 (g) If an audit, report, or commentary is admitted into the
9-35 record of a proceeding, the person who prepared the audit, report,
9-36 or commentary:
9-37 (1) may testify as to the contents of the audit,
9-38 report, or commentary and may be cross-examined by any party in
9-39 relation to the audit, report, or commentary; and
9-40 (2) may not provide additional technical or analytical
9-41 commentary to the commission during the proceedings on that matter.
9-42 (h) The general counsel and a member of the staff may not
9-43 directly or indirectly initiate, allow, or consider ex parte
9-44 communications concerning a matter before the commission with any
9-45 person other than:
9-46 (1) a commissioner;
9-47 (2) an administrative law judge; or
9-48 (3) a commission employee who has not participated in
9-49 a hearing related to the matter, but only for the purpose of using
9-50 that employee's special skills or knowledge to fulfill the staff
9-51 member's duties.
9-52 (i) This section does not affect the right of other parties
9-53 to appear and participate in a matter before the commission.
9-54 SECTION 2.04. (a) Article II, Public Utility Regulatory Act
9-55 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
9-56 amending Section 15A and adding Section 15B to read as follows:
9-57 Sec. 15A. (a) The independent Office of Public Utility
9-58 Counsel is hereby established to represent the interests of
9-59 residential and small commercial consumers.
9-60 (b) The chief executive of the office <Office of Public
9-61 Utility Counsel> is the public utility counsel, hereinafter
9-62 referred to as counsellor. The counsellor is appointed by the
9-63 governor with the advice and consent of the senate to a two-year
9-64 term that expires on February 1 of the final year of the term.
9-65 Appointment of the public utility counsel shall be made without
9-66 regard to the race, color, handicap, sex, religion, age, or
9-67 national origin of the appointee <Immediately after this section
9-68 takes effect, the governor shall, with the advice and consent of
9-69 the senate, appoint the public utility counsel>.
9-70 (c) The counsellor may employ such lawyers, economists,
10-1 engineers, consultants, statisticians, accountants, clerical staff,
10-2 and other employees as he or she deems necessary to carry out the
10-3 provisions of this section. All employees shall receive such
10-4 compensation as is fixed by the legislature from the assessment
10-5 imposed by Section 78 of this Act. The public utility counsel or
10-6 the counsellor's designee shall develop an intra-agency career
10-7 ladder program. The program shall require intra-agency postings of
10-8 all non-entry-level positions concurrently with any public posting.
10-9 The public utility counsel or the counsellor's designee shall
10-10 develop a system of annual performance evaluations. All merit pay
10-11 for office employees must be based on the system established under
10-12 this subsection. The office shall provide to the public utility
10-13 counsel and its employees, as often as necessary, information
10-14 regarding their qualification for office or employment under this
10-15 Act and their responsibilities under applicable laws relating to
10-16 standards of conduct for state officers or employees.
10-17 (d) The counsellor shall be a resident of Texas and admitted
10-18 to the practice of law in this state who has demonstrated a strong
10-19 commitment and involvement in efforts to safeguard the rights of
10-20 the public and possesses the knowledge and experience necessary to
10-21 practice effectively in utility proceedings. A person is not
10-22 eligible for appointment as public utility counsel if the person or
10-23 the person's spouse:
10-24 (1) is employed by or participates in the management
10-25 of a business entity or other organization regulated by the
10-26 commission or receiving funds from the commission;
10-27 (2) owns or controls, directly or indirectly, more
10-28 than a 10 percent interest or a pecuniary interest with a value
10-29 exceeding $10,000 in:
10-30 (A) a business entity or other organization
10-31 regulated by the commission or receiving funds from the commission
10-32 or the office; or
10-33 (B) any utility competitor, utility supplier, or
10-34 other entity affected by a commission decision in a manner other
10-35 than by the setting of rates for that class of customer;
10-36 (3) uses or receives a substantial amount of tangible
10-37 goods, services, or funds from the commission or the office, other
10-38 than compensation or reimbursement authorized by law for counsellor
10-39 or commission membership, attendance, or expenses; or
10-40 (4) notwithstanding Subdivision (2) of this
10-41 subsection, has an interest in a mutual fund or retirement fund in
10-42 which more than 10 percent of the fund's holdings is in a single
10-43 utility, utility competitor, or utility supplier in this state and
10-44 the person does not disclose this information to the governor,
10-45 senate, or other entity, as appropriate.
10-46 (e) A person may not serve as counsellor or act as the
10-47 general counsel for the office if the person is required to
10-48 register as a lobbyist under Chapter 305, Government Code, because
10-49 of the person's activities for compensation related to the
10-50 operation of the commission or the office.
10-51 (f) An officer, employee, or paid consultant of a trade
10-52 association in the field of public utilities may not serve as
10-53 counsellor or be an employee of the office who is exempt from the
10-54 state's position classification plan or is compensated at or above
10-55 the amount prescribed by the General Appropriations Act for step 1,
10-56 salary group 17, of the position classification salary schedule. A
10-57 person who is the spouse of an officer, manager, or paid consultant
10-58 of a trade association in the field of public utilities may not
10-59 serve as counsellor and may not be an office employee who is exempt
10-60 from the state's position classification plan or is compensated at
10-61 or above the amount prescribed by the General Appropriations Act
10-62 for step 1, salary group 17, of the position classification salary
10-63 schedule. For the purposes of this subsection, a trade association
10-64 is a nonprofit, cooperative, and voluntarily joined association of
10-65 business or professional persons who are employed by public
10-66 utilities or utility competitors to assist the public utility
10-67 industry, a utility competitor, or the industry's or competitor's
10-68 employees in dealing with mutual business or professional problems
10-69 and in promoting their common interest.
10-70 (g) Notwithstanding any other provision of this Act, a
11-1 person otherwise ineligible because of the application of
11-2 Subdivision (2) of Subsection (d) of this section may be appointed
11-3 as counsellor and may serve as counsellor if the person:
11-4 (1) notifies the attorney general and commission that
11-5 the person is ineligible because of the application of Subdivision
11-6 (2) of Subsection (d) of this section; and
11-7 (2) divests the person or the person's spouse of the
11-8 ownership or control before appointment, or within a reasonable
11-9 time if the person is already serving at the time Subdivision (2)
11-10 of Subsection (d) of this section first applies to the person.
11-11 (h) During the period of the counsellor's employment and for
11-12 a period of two years following the termination of employment, it
11-13 shall be unlawful for any person employed as counsellor to have a
11-14 direct or indirect interest in any utility company regulated under
11-15 the Public Utility Regulatory Act, to provide legal services
11-16 directly or indirectly to or be employed in any capacity by a
11-17 utility company regulated under the Public Utility Regulatory Act,
11-18 its parent, or its subsidiary companies, corporations, or
11-19 cooperatives or a utility competitor, utility supplier, or other
11-20 entity affected in a manner other than by the setting of rates for
11-21 that class of customer; but such person may otherwise engage in the
11-22 private practice of law after the termination of employment as the
11-23 counsellor. It is a ground for removal from office if the
11-24 counsellor:
11-25 (1) does not have at the time of appointment the
11-26 qualifications required by this section;
11-27 (2) does not maintain during service as counsellor the
11-28 qualifications required by this section;
11-29 (3) violates a prohibition established by this
11-30 section; or
11-31 (4) cannot discharge the counsellor's duties for a
11-32 substantial part of the term for which the counsellor is appointed
11-33 because of illness or disability.
11-34 (i) The validity of an action of the office is not affected
11-35 by the fact that it is taken when a ground for removal of the
11-36 counsellor exists.
11-37 (j) The office shall file annually with the governor and the
11-38 presiding officer of each house of the legislature a complete and
11-39 detailed written report accounting for all funds received and
11-40 disbursed by the office during the preceding fiscal year. The
11-41 annual report must be in the form and reported in the time provided
11-42 by the General Appropriations Act.
11-43 (k) The office shall prepare information of public interest
11-44 describing the functions of the office. The office shall make the
11-45 information available to the public and appropriate state agencies.
11-46 (l) The counsellor or the counsellor's designee shall
11-47 prepare and maintain a written policy statement to assure
11-48 implementation of a program of equal employment opportunity under
11-49 which all personnel transactions are made without regard to race,
11-50 color, handicap, sex, religion, age, or national origin. The
11-51 policy statement must include:
11-52 (1) personnel policies, including policies relating to
11-53 recruitment, evaluation, selection, appointment, training, and
11-54 promotion of personnel;
11-55 (2) a comprehensive analysis of the office work force
11-56 that meets federal and state guidelines;
11-57 (3) procedures by which a determination can be made of
11-58 significant underutilization in the office work force of all
11-59 persons for whom federal or state guidelines encourage a more
11-60 equitable balance; and
11-61 (4) reasonable methods to address those areas of
11-62 significant underutilization appropriately.
11-63 (m) A policy statement prepared under Subsection (l) of this
11-64 section must cover an annual period, be updated at least annually,
11-65 and be filed with the governor's office and the Commission on Human
11-66 Rights. The governor's office shall deliver a biennial report to
11-67 the legislature based on the information received under this
11-68 subsection. The report may be made separately or as a part of
11-69 other biennial reports made to the legislature.
11-70 (n) The office shall prepare and maintain a written plan
12-1 that describes how a person who does not speak English can be
12-2 provided reasonable access to the office's programs. The office
12-3 shall also comply with federal and state laws for program and
12-4 facility accessibility.
12-5 (o) The office is subject to the requirements of Article 13,
12-6 State Purchasing and General Services Act (Article 601b, Vernon's
12-7 Texas Civil Statutes), and its subsequent amendments.
12-8 (p) In this section, an entity or utility supplier is
12-9 considered to be affected in a manner other than by the setting of
12-10 rates for that class of customer if during a relevant calendar year
12-11 the entity provides goods, products, fuel, or services to a
12-12 regulated or unregulated provider of telecommunications or electric
12-13 services or to an affiliated interest in an amount equal to the
12-14 lesser of $10,000 or 10 percent of the person's business.
12-15 Sec. 15B. (a) <(f)> The Office of Public Utility Counsel:
12-16 (1) shall assess the impact of utility rate changes
12-17 and other regulatory actions on residential consumers in the State
12-18 of Texas and shall be an advocate in its own name of positions most
12-19 advantageous to a substantial number of such consumers as
12-20 determined by the counsellor;
12-21 (2) shall <may> appear or intervene as a matter of
12-22 right as a party or otherwise on behalf of residential consumers,
12-23 as a class, in all proceedings before the commission that affect
12-24 residential consumers;
12-25 (3) may appear or intervene as a matter of right as a
12-26 party or otherwise on behalf of small commercial consumers, as a
12-27 class, in all proceedings where it is deemed by the counsel that
12-28 small commercial consumers are in need of representation;<.>
12-29 (4) may initiate or intervene as a matter of right or
12-30 otherwise appear in any judicial proceedings involving or arising
12-31 out of any action taken by an administrative agency in a proceeding
12-32 in which the counsel was authorized to appear;
12-33 (5) may have access as any party<, other than staff,>
12-34 to all records gathered by the commission under the authority of
12-35 Subsection (a) of Section 29 of this Act;
12-36 (6) may obtain discovery of any nonprivileged matter
12-37 which is relevant to the subject matter involved in any proceeding
12-38 or petition before the commission;
12-39 (7) may represent individual residential and small
12-40 commercial consumers with respect to their disputed complaints
12-41 concerning utility services unresolved before the commission; and
12-42 (8) may recommend legislation to the legislature which
12-43 in its judgment would positively affect the interests of
12-44 residential and small commercial consumers.
12-45 (b) <(g) Nothing in this section shall be construed as in
12-46 any way limiting the authority of the commission to represent
12-47 residential or small commercial consumers.>
12-48 <(h)> The appearance of the Public Counsel in any proceeding
12-49 in no way precludes the appearance of other parties on behalf of
12-50 residential ratepayers or small commercial consumers. The Public
12-51 Counsel shall not be grouped with any other parties.
12-52 (c) <(i)> There shall be only one Office of Public Utility
12-53 Counsel even though that office may be referenced in one or more
12-54 Acts of the 68th Legislature.
12-55 (b) The changes in law made by this section relating to the
12-56 requirements for service as public utility counsel apply only to an
12-57 appointment made on or after the effective date of this section and
12-58 do not affect the entitlement of the public utility counsel serving
12-59 on August 31, 1993, to continue to hold office for the remainder of
12-60 the term for which the person was appointed.
12-61 (c) Subsection (o), Section 15A, Public Utility Regulatory
12-62 Act (Article 1446c, Vernon's Texas Civil Statutes), as added by
12-63 this section, takes effect September 1, 1995.
12-64 SECTION 2.05. Section 16, Public Utility Regulatory Act
12-65 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
12-66 as follows:
12-67 Sec. 16. (a) The commission has the general power to
12-68 regulate and supervise the business of every public utility within
12-69 its jurisdiction and to do all things, whether specifically
12-70 designated in this Act or implied herein, necessary and convenient
13-1 to the exercise of this power and jurisdiction. The commission
13-2 shall make and enforce rules reasonably required in the exercise of
13-3 its powers and jurisdiction, including rules governing practice and
13-4 procedure before the commission and, as applicable, practice and
13-5 procedure before the utility division of the State Office of
13-6 Administrative Hearings. The commission shall adopt rules
13-7 authorizing an administrative law judge to:
13-8 (1) limit the amount of time that a party may have to
13-9 present its case;
13-10 (2) limit the number of requests for information that
13-11 a party may make in a contested case;
13-12 (3) require a party to a contested case to identify
13-13 contested issues and facts before the hearing begins and to limit
13-14 cross-examination to only those issues and facts and to any new
13-15 issues that may arise as a result of the discovery process; or
13-16 (4) group parties, other than the office, that have
13-17 the same position on an issue to facilitate cross-examination on
13-18 that issue, provided that each party in a group is entitled to
13-19 present that party's witnesses for cross-examination during the
13-20 hearing.
13-21 (b) Rules adopted under Subsection (a) of this section must
13-22 ensure that all parties receive due process.
13-23 (c) The commission may call and hold hearings, other than
13-24 contested case hearings assigned to be heard by the utility
13-25 division of the State Office of Administrative Hearings or other
13-26 hearings delegated to the division under this subsection,
13-27 administer oaths, receive evidence at hearings, issue subpoenas to
13-28 compel the attendance of witnesses and the production of papers and
13-29 documents, and make findings of fact and decisions with respect to
13-30 administering the provisions of this Act or the rules, orders, or
13-31 other actions of the commission. Notwithstanding any other
13-32 provision of this Act or other law, in proceedings other than those
13-33 involving major rate changes, the commission may delegate to an
13-34 administrative law judge in the utility division of the State
13-35 Office of Administrative Hearings <or hearings examiner> the
13-36 authority to make a final decision and to issue findings of fact,
13-37 conclusions of law, and other necessary orders in a proceeding in
13-38 which there is no contested issue of fact or law. The commission,
13-39 by rule, shall define the procedures by which it delegates final
13-40 decision making authority authorized by this section. For review
13-41 purposes the final decision of the administrative law judge <or
13-42 hearings examiner> has the same effect as a final decision of the
13-43 commission unless a commissioner requests formal review of the
13-44 decision.
13-45 (d) <(b) The commission shall develop a long-term statewide
13-46 electrical energy forecast which shall be sent to the governor
13-47 biennially. The forecast will include an assessment of how
13-48 alternative energy sources, conservation, and load management will
13-49 meet the state's electricity needs.>
13-50 <(c) Every generating electric utility in the state shall
13-51 prepare and transmit to the commission by December 31, 1983, and
13-52 every two years thereafter a report specifying at least a 10-year
13-53 forecast for assessments of load and resources for its service
13-54 area. The report shall include a list of facilities which will be
13-55 required to supply electric power during the forecast periods. The
13-56 report shall be in a form prescribed by the commission. The report
13-57 shall include:>
13-58 <(1) a tabulation of estimated peak load, resources,
13-59 and reserve margins for each year during the forecast or assessment
13-60 period;>
13-61 <(2) a list of existing electric generating plants in
13-62 service with a description of planned and potential generating
13-63 capacity at existing sites;>
13-64 <(3) a list of facilities which will be needed to
13-65 serve additional electrical requirements identified in the
13-66 forecasts or assessments, the general location of such facilities,
13-67 and the anticipated types of fuel to be utilized in the proposed
13-68 facilities, including an estimation of shutdown costs and disposal
13-69 of spent fuel for nuclear power plants;>
13-70 <(4) a description of additional system capacity which
14-1 might be achieved through, among other things, improvements in (A)
14-2 generating or transmission efficiency, (B) importation of power,
14-3 (C) interstate or interregional pooling, (D) other improvements in
14-4 efficiencies of operation; and (E) conservation measures;>
14-5 <(5) an estimation of the mix and type of fuel
14-6 resources for the forecast or assessment period;>
14-7 <(6) an annual load duration curve and a forecast of
14-8 anticipated peak loads for the forecast or assessment period for
14-9 the residential, commercial, industrial, and such other major
14-10 demand sectors in the service area of the electric utility as the
14-11 commission shall determine; and>
14-12 <(7) a description of projected population growth,
14-13 urban development, industrial expansion, and other growth factors
14-14 influencing increased demand for electric energy and the basis for
14-15 such projections.>
14-16 <(d) The commission shall establish and every electric
14-17 utility shall utilize a reporting methodology for preparation of
14-18 the forecasts of future load and resources.>
14-19 <(e) The commission shall review and evaluate the electric
14-20 utilities' forecast of load and resources and any public comment on
14-21 population growth estimates prepared by Bureau of Business
14-22 Research, University of Texas at Austin.>
14-23 <(f) Within 12 months after the receipt of the reports
14-24 required in Subsection (b) of this section, the commission shall
14-25 hold a public hearing and subsequently issue a final report to the
14-26 governor and notify every electric utility of the commission's
14-27 electric forecast for that utility. The commission shall consider
14-28 its electric forecast in all certification proceedings covering new
14-29 generation plant.>
14-30 <(g)> The commission shall make and enforce rules to
14-31 encourage the economical production of electric energy by
14-32 qualifying cogenerators and qualifying small power producers.
14-33 (e) <(h)> The commission shall inquire into the management
14-34 of the business of all public utilities under its jurisdiction,
14-35 shall keep itself informed as to the manner and method in which the
14-36 management and business is conducted, and shall obtain from any
14-37 public utility all necessary information to enable the commission
14-38 to perform management audits. The commission may audit each
14-39 utility under the jurisdiction of the commission as frequently as
14-40 needed<, but shall audit each utility at least once every 10
14-41 years>. Six months after any audit, the utility shall report to
14-42 the commission on the status of the implementation of the
14-43 recommendations of the audit and shall file subsequent reports at
14-44 such times as the commission deems appropriate.
14-45 SECTION 2.06. Subsection (n), Section 18, Public Utility
14-46 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
14-47 amended to read as follows:
14-48 (n) In any proceeding before the commission alleging conduct
14-49 or activities by an interexchange telecommunications carrier
14-50 against another interexchange carrier in contravention of
14-51 Subsections (l), (m), and (o) of this section, the burden of proof
14-52 shall be upon the complaining interexchange telecommunications
14-53 carrier; however, in such proceedings brought by customers or their
14-54 representatives who are not themselves interexchange
14-55 telecommunications carriers or in such proceedings initiated by the
14-56 commission <commission's general counsel>, the burden of proof
14-57 shall be upon the respondent interexchange telecommunications
14-58 carrier. However, if the commission finds it to be in the public
14-59 interest, the commission may impose the burden of proof in such
14-60 proceedings on the complaining party.
14-61 SECTION 2.07. Article III, Public Utility Regulatory Act
14-62 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
14-63 adding Section 19 to read as follows:
14-64 Sec. 19. (a) The commission by rule shall develop an
14-65 integrated resource planning process to provide reliable energy
14-66 service at the lowest overall cost.
14-67 (b) The commission shall adopt and periodically update a
14-68 statewide integrated resource plan. The commission shall send the
14-69 plan to the governor when it adopts or revises the plan and notify
14-70 each electric utility of the approval of the statewide plan and of
15-1 the utility's individual utility plan.
15-2 (c) The statewide plan shall include:
15-3 (1) the approved individual plans of electric
15-4 generating utilities;
15-5 (2) an assessment of how alternative energy sources,
15-6 conservation, and load management will meet the state's electricity
15-7 needs;
15-8 (3) the commission's goals for the use of various
15-9 energy resources; and
15-10 (4) other information required by the commission.
15-11 (d) In the manner specified by the commission, each
15-12 generating electric utility shall submit to the commission on a
15-13 staggered schedule adopted by the commission a plan to increase its
15-14 supply of electricity or to decrease the demands made on its system
15-15 by its customers.
15-16 (e) The contents of such a plan shall include but are not
15-17 limited to the methods that are used by the utility to:
15-18 (1) forecast the future demands; and
15-19 (2) determine the lowest cost combination of resources
15-20 to meet the demands or the lowest cost method to reduce the
15-21 demands.
15-22 (f) After a utility has filed its plan, the commission shall
15-23 convene a public hearing on the adequacy of the plan. A commission
15-24 hearing is not required for a plan filed by a municipally owned
15-25 electric utility or a plan filed by a river authority or generating
15-26 electric cooperative that does not intend to build a new generating
15-27 plant or to make a major modification to an existing plant. At the
15-28 hearing, any interested person may intervene, present evidence, and
15-29 cross-examine witnesses regarding the contents and adequacy of the
15-30 plan.
15-31 (g) After the hearing, the commission shall determine
15-32 whether:
15-33 (1) the utility's plan is based on substantially
15-34 accurate data and an adequate method of forecasting;
15-35 (2) the plan identifies and takes into account any
15-36 present and projected reductions in the demand for energy that may
15-37 result from measures to improve conservation and energy efficiency
15-38 in various customer classes of the area being served; and
15-39 (3) the plan adequately demonstrates the economic,
15-40 environmental, and other benefits to this state and to the
15-41 customers of the utility associated with the following possible
15-42 measures and sources of supply:
15-43 (A) improvements in conservation and energy
15-44 efficiency;
15-45 (B) demand-side management;
15-46 (C) purchases and sales of power;
15-47 (D) wheeling of power;
15-48 (E) renewable resources;
15-49 (F) cogeneration; and
15-50 (G) any other facilities.
15-51 (h) The commission may determine the measures and sources of
15-52 supply set forth in Subdivision (3) of Subsection (g) of this
15-53 section that, on balance, provide reliable energy services at the
15-54 lowest overall cost.
15-55 (i) Within 365 days after the date on which a utility has
15-56 filed its plan, the commission shall issue a final order on the
15-57 plan. The commission may approve, disapprove, or amend and approve
15-58 the plan.
15-59 (j) In carrying out its duties related to the integrated
15-60 resource planning process, the commission may:
15-61 (1) allow timely recovery of reasonable costs of
15-62 conservation, load management, and purchased power, notwithstanding
15-63 Subdivision (1) of Subsection (g) of Section 43 of this Act;
15-64 (2) authorize additional incentives for conservation,
15-65 load management, purchased power, and renewable resources;
15-66 (3) require a utility to provide transmission service
15-67 to another utility or any other entity authorized to generate and
15-68 sell electricity; and
15-69 (4) review the state's transmission system to
15-70 determine and make recommendations to electric utilities on the
16-1 need to build new power lines, upgrade power lines, and make other
16-2 improvements and additions as necessary, and who should pay the
16-3 cost of these improvements if made, review the actions of the
16-4 electric utilities in light of such recommendations, and take such
16-5 actions into account in fixing a reasonable return on invested
16-6 capital under Subsection (b) of Section 39 of this Act.
16-7 (k) Before permitting cost recovery or incentives for the
16-8 utility for a conservation or demand-side management program, the
16-9 commission must first find that the program is cost-effective in
16-10 comparison with all other available resources.
16-11 (l) In prescribing requirements under this section,
16-12 including reporting requirements, the commission shall consider and
16-13 recognize the different generating capacities of small and large
16-14 utilities.
16-15 (m) The process must include procedures for electric
16-16 utilities to solicit proposals for alternative energy resources,
16-17 whether supply-side or demand-side. In any such solicitation, the
16-18 utility shall consider the feasibility, cost, reliability, and
16-19 other relevant factors of the solicited resources.
16-20 (n) The commission may impose and revise limits on the cost
16-21 of a resource addition that may be included in the utility's
16-22 invested capital, for ratemaking purposes, based on the costs
16-23 relied on by the commission in approving the utility's integrated
16-24 resource plan or certificate of convenience and necessity.
16-25 (o) In addition to its other authority and responsibility
16-26 under this section, the commission shall establish rules and
16-27 guidelines which will ensure that renewable energy technologies
16-28 compose at least two percent of the state's electric power
16-29 generation capacity by the year 2000.
16-30 SECTION 2.08. Subsection (b), Section 39, Public Utility
16-31 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
16-32 amended to read as follows:
16-33 (b) In fixing a reasonable return on invested capital, the
16-34 regulatory authority shall consider, in addition to other
16-35 applicable factors, efforts to comply with the most recent
16-36 statewide integrated resource plan and the utility's most recent
16-37 approved individual integrated resource <energy> plan, the efforts
16-38 and achievements of such utility in the conservation of resources,
16-39 the quality of the utility's services, the efficiency of the
16-40 utility's operations, and the quality of the utility's management.
16-41 SECTION 2.09. Subsections (a) and (c), Section 52, Public
16-42 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
16-43 Statutes), are amended to read as follows:
16-44 (a) A public utility shall submit to the commission an
16-45 application to obtain a certificate of public convenience and
16-46 necessity or an amendment thereof. The utility shall file
16-47 concurrently with the office a copy of the application.
16-48 (c) Each applicant for a certificate shall file with the
16-49 commission and the office such evidence as is required by the
16-50 commission to show that the applicant has received the required
16-51 consent, franchise, or permit of the proper municipality or other
16-52 public authority.
16-53 SECTION 2.10. Section 52, Public Utility Regulatory Act
16-54 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
16-55 adding Subsection (d) to read as follows:
16-56 (d) Except as provided by rule, the commission may not
16-57 accept an application for a certificate of convenience and
16-58 necessity relating to the construction or major modification of an
16-59 electric generating plant if the utility's most recent individual
16-60 integrated resource plan has been filed with the commission but has
16-61 not yet been approved.
16-62 SECTION 2.11. Section 54, Public Utility Regulatory Act
16-63 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
16-64 as follows:
16-65 Sec. 54. (a) When an application for a certificate of
16-66 public convenience and necessity is filed, the commission shall
16-67 give notice of such application to interested parties and, if
16-68 requested, shall fix a time and place for a hearing and give notice
16-69 of the hearing. Any person interested in the application may
16-70 intervene at the hearing.
17-1 (b) Except for certificates for prior operations granted
17-2 under Section 53 and certificates for the construction of an
17-3 electric generating plant, the commission may grant applications
17-4 and issue certificates only if the commission finds that the
17-5 certificate is necessary for the service, accommodation,
17-6 convenience, or safety of the public. The commission may grant
17-7 applications and issue certificates for the construction of an
17-8 electric generating plant only if the proposed plant has been
17-9 approved by the commission as part of the utility's most recent
17-10 approved individual integrated resource plan and the utility has
17-11 conducted a solicitation based on the resource for which it is
17-12 seeking a certificate. The commission may issue the certificate as
17-13 prayed for, or refuse to issue it, or issue it for the construction
17-14 of a portion only of the contemplated system or facility or
17-15 extension thereof, or for the partial exercise only of the right or
17-16 privilege.
17-17 (c) Except as provided by Subsection (d) of this section,
17-18 certificates <Certificates> of convenience and necessity shall be
17-19 granted on a nondiscriminatory basis after consideration by the
17-20 commission of the adequacy of existing service, the need for
17-21 additional service, the effect of the granting of a certificate on
17-22 the recipient of the certificate and on any public utility of the
17-23 same kind already serving the proximate area, and on such factors
17-24 as community values, recreational and park areas, historical and
17-25 aesthetic values, environmental integrity, and the probable
17-26 improvement of service or lowering of cost to consumers in such
17-27 area resulting from the granting of such certificate.
17-28 (d) A <In addition to the requirements of this section, an
17-29 electric utility applying for certificate of convenience and
17-30 necessity for a new generating plant must first file a notice of
17-31 intent to file an application for certification.>
17-32 <(1) The notice of intent shall set out alternative
17-33 methods considered to help meet the electrical needs, related
17-34 electrical facilities, and the advantages and disadvantages of the
17-35 alternatives. In addition, the notice shall indicate compatibility
17-36 with the most recent long-term forecast provided in this Act.>
17-37 <(2) The commission shall conduct a hearing on the
17-38 notice of intent to determine the appropriateness of the proposed
17-39 generating plant as compared to the alternatives and shall issue a
17-40 report on its findings. In conjunction with the issuance of the
17-41 report, the commission shall render a decision approving or
17-42 disapproving the notice. Such decision shall be rendered within
17-43 180 days from the date of filing the notice of intent.>
17-44 <(e) On approval of the notice of intent, a> utility may
17-45 apply for certification for a generating plant<,> site<,> and site
17-46 facilities no later than 12 months before construction is to
17-47 commence.
17-48 (1) The application for certification shall contain
17-49 such information as the commission may require to justify the
17-50 proposed generating plant<,> site<,> and site facilities and to
17-51 allow a determination showing compatibility with the utility's most
17-52 recent approved individual integrated resource plan <forecast>.
17-53 (2) Certificates of convenience and necessity shall be
17-54 granted on a nondiscriminatory basis if the commission finds that
17-55 the proposed new plant is required under the utility's most recent
17-56 approved individual integrated resource plan <service area
17-57 forecast, that it is the best and most economical choice of
17-58 technology for that service area as compatible with the
17-59 commission's forecast, and that conservation and alternative energy
17-60 sources cannot meet the need>. In making this determination, the
17-61 commission shall review the solicitation process and the utility's
17-62 decision with respect to the offers it received. In determining
17-63 whether to grant a certificate, the commission shall consider the
17-64 factors prescribed by this subsection and Subsection (c) of this
17-65 section. The commission may not reconsider issues that were
17-66 decided by the commission in the utility's most recent individual
17-67 integrated resource plan.
17-68 (e) The <(f) If the application for a certificate of
17-69 convenience and necessity involves new transmission facilities,
17-70 the> commission shall approve or deny an application for a
18-1 certificate of convenience and necessity relating to construction
18-2 of an electric generating plant within 180 days <the application
18-3 within one year> after the date the application is filed. If the
18-4 commission does not approve or deny the application before this
18-5 deadline, any party may seek a writ of mandamus in a district court
18-6 of Travis County to compel the commission to make a decision on the
18-7 application.
18-8 SECTION 2.12. Section 62, Public Utility Regulatory Act
18-9 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
18-10 adding Subsection (c) to read as follows:
18-11 (c) The commission may revoke a certificate for a generating
18-12 plant, or modification thereto, if the plant no longer meets the
18-13 commission's criteria for inclusion in the utility's integrated
18-14 resource plan. The commission may provide appropriate treatment
18-15 for prudently incurred costs of the plant.
18-16 SECTION 2.13. Section 43A, Public Utility Regulatory Act
18-17 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
18-18 as follows:
18-19 Sec. 43A. A local exchange company may make changes in its
18-20 tariffed rules, regulations, or practices that do not affect its
18-21 charges or rates by filing the proposed changes concurrently with
18-22 the office and <with> the commission at least 35 days prior to the
18-23 effective date of the changes. The commission may require such
18-24 notice to ratepayers as it considers appropriate. The commission
18-25 may on complaint by any affected person or on its own motion hold a
18-26 hearing, after reasonable notice, to determine the propriety of the
18-27 change. Pending the hearing and decision, the commission may
18-28 suspend the operation of the proposed changes for a period not to
18-29 exceed 120 days after the date on which the changes would otherwise
18-30 go into effect. The commission shall approve, deny, or modify the
18-31 proposed changes before expiration of the suspension period. In
18-32 any proceeding under this section, the burden of proving that the
18-33 requested relief is in the public interest and complies with this
18-34 Act shall be borne by the local exchange company.
18-35 SECTION 2.14. Subsection (b), Section 43B, Public Utility
18-36 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
18-37 amended to read as follows:
18-38 (b) At least 60 days before the date of the change, the
18-39 local exchange company shall file concurrently with the commission
18-40 and the office a statement of intent to change rates containing:
18-41 (1) a copy of the notice required by Subsection (a) of
18-42 this section;
18-43 (2) the number of access lines the company has in
18-44 service in this state;
18-45 (3) the date of the most recent commission order
18-46 setting rates of the company;
18-47 (4) the increase in total gross annual local revenues
18-48 that will be produced by the proposed rates;
18-49 (5) the increase in total gross annual local revenues
18-50 that will be produced by the proposed rates together with any local
18-51 rate changes which went into effect during the 12 months preceding
18-52 the proposed effective date of the requested rate change and any
18-53 other proposed local rate changes then pending before the
18-54 commission;
18-55 (6) the increase in rates for each service category;
18-56 and
18-57 (7) other information the commission by rule requires.
18-58 SECTION 2.15. Sections 63, 64, and 65, Public Utility
18-59 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), are
18-60 amended to read as follows:
18-61 Sec. 63. No public utility may sell, acquire, lease, or rent
18-62 any plant as an operating unit or system in this state for a total
18-63 consideration in excess of $100,000 or merge or consolidate with
18-64 another public utility operating in this state unless the public
18-65 utility reports such transaction to the commission and the office
18-66 within a reasonable time. All transactions involving the sale of
18-67 50 percent or more of the stock of a public utility shall also be
18-68 reported to the commission and the office within a reasonable time.
18-69 On the filing of a report with the commission, the commission shall
18-70 investigate the same with or without public hearing, to determine
19-1 whether the action is consistent with the public interest. In
19-2 reaching its determination, the commission shall take into
19-3 consideration the reasonable value of the property, facilities, or
19-4 securities to be acquired, disposed of, merged or consolidated. If
19-5 the commission finds that such transactions are not in the public
19-6 interest, the commission shall take the effect of the transaction
19-7 into consideration in the rate-making proceedings and disallow the
19-8 effect of such transaction if it will unreasonably affect rates or
19-9 service. The provisions of this section shall not be construed as
19-10 being applicable to the purchase of units of property for
19-11 replacement or to the addition to the facilities of the public
19-12 utility by construction.
19-13 Sec. 64. No public utility may purchase voting stock in
19-14 another public utility doing business in Texas, unless the utility
19-15 reports such purchase to the commission and the office.
19-16 Sec. 65. No public utility may loan money, stocks, bonds,
19-17 notes, or other evidences of indebtedness to any corporation or
19-18 person owning or holding directly or indirectly any stock of the
19-19 public utility unless the public utility reports the transaction to
19-20 the commission and the office within a reasonable time.
19-21 SECTION 2.16. Chapter 591, Acts of the 72nd Legislature,
19-22 Regular Session, 1991 (Article 6252-13f, Vernon's Texas Civil
19-23 Statutes), is amended by adding Section 4A to read as follows:
19-24 Sec. 4A. UTILITY DIVISION. (a) The office shall establish
19-25 a utility division to perform the contested case hearings for the
19-26 Public Utility Commission of Texas as prescribed by the Public
19-27 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
19-28 Statutes) and its subsequent amendments and other applicable law.
19-29 (b) The utility division shall conduct hearings relating to
19-30 contested cases before the commission, other than a hearing
19-31 conducted by one or more commissioners. The commission by rule may
19-32 delegate the responsibility to hear any other matter before the
19-33 commission if consistent with the duties and responsibilities of
19-34 the division.
19-35 (c) Only an administrative law judge in the utility division
19-36 may conduct a hearing on behalf of the commission. An
19-37 administrative law judge in the utility division may conduct
19-38 hearings for other state agencies as time allows. The office may
19-39 transfer an administrative law judge into the division on a
19-40 temporary or permanent basis and may contract with qualified
19-41 individuals to serve as temporary administrative law judges as
19-42 necessary.
19-43 (d) To be eligible to preside at a hearing, an
19-44 administrative law judge, regardless of temporary or permanent
19-45 status, must be licensed to practice law in this state and have not
19-46 less than five years of general experience or three years of
19-47 experience in utility regulatory law.
19-48 (e) At the time the office receives jurisdiction of a
19-49 proceeding, the commission shall provide to the administrative law
19-50 judge a list of issues or areas that must be addressed. In
19-51 addition, the commission may identify and provide to the
19-52 administrative law judge at any time additional issues or areas
19-53 that must be addressed.
19-54 (f) The office and the commission shall jointly adopt rules
19-55 providing for certification to the commission of an issue that
19-56 involves an ultimate finding of compliance with or satisfaction of
19-57 a statutory standard the determination of which is committed to the
19-58 discretion or judgment of the commission by law. The rules must
19-59 address, at a minimum, the issues that are appropriate for
19-60 certification and the procedure to be used in certifying the issue.
19-61 Each agency shall publish the jointly adopted rules.
19-62 (g) Notwithstanding Section 13(j), Administrative Procedure
19-63 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
19-64 Statutes), and its subsequent amendments, the commission may change
19-65 a finding of fact or conclusion of law made by the administrative
19-66 law judge or vacate or modify an order issued by the administrative
19-67 law judge only if the commission:
19-68 (1) determines that the administrative law judge:
19-69 (A) did not properly apply or interpret
19-70 applicable law, agency rules or policies, or prior administrative
20-1 decisions; or
20-2 (B) issued a finding of fact that is not
20-3 supported by a preponderance of the evidence; and
20-4 (2) states in writing the specific reason and legal
20-5 basis for its determination under Subdivision (1) of this
20-6 subsection.
20-7 (h) An administrative law judge, on the judge's own motion
20-8 or on motion of a party, and after notice and an opportunity for a
20-9 hearing, may impose appropriate sanctions as provided by Subsection
20-10 (i) of this section against a party or its representative for:
20-11 (1) filing a motion or pleading that is groundless and
20-12 brought:
20-13 (A) in bad faith;
20-14 (B) for the purpose of harassment; or
20-15 (C) for any other improper purpose, such as to
20-16 cause unnecessary delay or needless increase in the cost of the
20-17 proceeding;
20-18 (2) abuse of the discovery process in seeking, making,
20-19 or resisting discovery; or
20-20 (3) failure to obey an order of the administrative law
20-21 judge or the commission.
20-22 (i) A sanction imposed under Subsection (h) of this section
20-23 may include, as appropriate and justified, issuance of an order:
20-24 (1) disallowing further discovery of any kind or of a
20-25 particular kind by the offending party;
20-26 (2) charging all or any part of the expenses of
20-27 discovery against the offending party or its representative;
20-28 (3) holding that designated facts be deemed admitted
20-29 for purposes of the proceeding;
20-30 (4) refusing to allow the offending party to support
20-31 or oppose a designated claim or defense or prohibiting the party
20-32 from introducing designated matters in evidence;
20-33 (5) disallowing in whole or in part requests for
20-34 relief by the offending party and excluding evidence in support of
20-35 such requests;
20-36 (6) punishing the offending party or its
20-37 representative for contempt to the same extent as a district court;
20-38 (7) requiring the offending party or its
20-39 representative to pay, at the time ordered by the administrative
20-40 law judge, the reasonable expenses, including attorney fees,
20-41 incurred by other parties because of the sanctionable behavior; and
20-42 (8) striking pleadings or testimony, or both, in whole
20-43 or in part, or staying further proceedings until the order is
20-44 obeyed.
20-45 SECTION 2.17. (a) Section 13.09, State Purchasing and
20-46 General Services Act (Article 601b, Vernon's Texas Civil Statutes),
20-47 is amended to read as follows:
20-48 Sec. 13.09. APPLICATION. The state agencies subject to this
20-49 article are:
20-50 (1) the Texas Department of Mental Health and Mental
20-51 Retardation;
20-52 (2) the Texas Department of Human Services;
20-53 (3) the Texas Department of Criminal Justice;
20-54 (4) the Department of Agriculture;
20-55 (5) the Central Education Agency;
20-56 (6) the Texas Higher Education Coordinating Board;
20-57 (7) the State Department of Highways and Public
20-58 Transportation; <and>
20-59 (8) the commission;
20-60 (9) the Public Utility Commission of Texas; and
20-61 (10) the Office of Public Utility Counsel.
20-62 (b) This section takes effect September 1, 1995.
20-63 SECTION 2.18. (a) A task force is established to administer
20-64 the transfer of the hearings division from the Public Utility
20-65 Commission of Texas to the State Office of Administrative Hearings
20-66 and the transfer of personnel from the commission to the Office of
20-67 Public Utility Counsel. The task force is composed of:
20-68 (1) the governor or the governor's designee;
20-69 (2) the members of the Legislative Budget Board or the
20-70 members' designees;
21-1 (3) the chairman of the Public Utility Commission of
21-2 Texas;
21-3 (4) the public utility counsel; and
21-4 (5) the chief administrative law judge of the State
21-5 Office of Administrative Hearings.
21-6 (b) The governor or the governor's designee is the presiding
21-7 officer of the task force.
21-8 (c) The task force shall:
21-9 (1) determine the personnel, equipment, data,
21-10 facilities, and other items that will be transferred under this Act
21-11 and the schedule for the transfers; and
21-12 (2) mediate and resolve disputes between the
21-13 respective agencies relating to a transfer.
21-14 (d) After the transfers have been completed, the task force
21-15 shall prepare a written report detailing the specifics of the
21-16 transfers and shall submit the report to the governor and the
21-17 legislature.
21-18 (e) In determining a transfer under this Act, the task force
21-19 shall ensure that the transfer does not adversely affect a
21-20 proceeding before the Public Utility Commission of Texas or the
21-21 rights of the parties to the proceeding.
21-22 SECTION 2.19. (a) On September 1, 1993, all personnel,
21-23 including hearings examiners and administrative law judges,
21-24 equipment, data, facilities, and other items of the hearings
21-25 division of the Public Utility Commission of Texas, other than the
21-26 personnel, equipment, data, facilities, and other items of the
21-27 central records office, are transferred to the utility division of
21-28 the State Office of Administrative Hearings. Until September 1,
21-29 1994, an employee transferred to the utility division may be
21-30 terminated or subject to salary reduction only for cause and only
21-31 in relation to poor performance or unacceptable conduct. A
21-32 hearings examiner transferred to the State Office of Administrative
21-33 Hearings becomes an administrative law judge on the date of
21-34 transfer.
21-35 (b) A hearings examiner or administrative law judge
21-36 transferred from the Public Utility Commission of Texas to the
21-37 State Office of Administrative Hearings shall continue to hear any
21-38 case assigned to the person as if the transfer had not occurred.
21-39 (c) The changes in law made by this article that relate to
21-40 the powers and duties of the general counsel and Public Utility
21-41 Commission of Texas staff and to the procedures governing a hearing
21-42 before the utility division of the State Office of Administrative
21-43 Hearings apply only to a case that is filed on or after September
21-44 1, 1993. For cases filed before September 1, 1993, the general
21-45 counsel and commission staff shall continue to perform the duties
21-46 prescribed by the provisions amended by this article as those
21-47 duties existed on August 31, 1993. In addition, the procedures
21-48 prescribed by the provisions amended by this article shall continue
21-49 to be used in a hearing, as those procedures existed on August 31,
21-50 1993. The former law is continued in effect for those purposes.
21-51 (d) The Public Utility Commission of Texas by rule shall
21-52 adopt a statewide integrated resource planning process as required
21-53 by Section 19, Public Utility Regulatory Act (Article 1446c,
21-54 Vernon's Texas Civil Statutes), as added by this article, not later
21-55 than September 1, 1994.
21-56 (e) The changes in law made by this article to Subsection
21-57 (d), Section 52 and Section 54, Public Utility Regulatory Act
21-58 (Article 1446c, Vernon's Texas Civil Statutes), take effect
21-59 September 1, 1994, and apply only to an application for a
21-60 certificate of convenience and necessity filed on or after that
21-61 date, except that, in the case of any utility for which the
21-62 commission has not yet approved an individual integrated resource
21-63 plan as of September 1, 1994, applications for certificates of
21-64 convenience and necessity shall be governed by the law in effect
21-65 prior to the effective date of this Act until the commission
21-66 approves an integrated resource plan for that utility.
21-67 (f) Section 2.18 of this article takes effect immediately.
21-68 ARTICLE 3
21-69 SECTION 3.01. (a) Article III, Public Utility Regulatory
21-70 Act (Article 1446c, Vernon's Texas Civil Statutes), is amended by
22-1 adding Section 16A to read as follows:
22-2 Sec. 16A. (a) The commission by rule shall adopt procedures
22-3 governing the use of settlements to resolve contested cases.
22-4 (b) The rules shall ensure that:
22-5 (1) each party retains the right to:
22-6 (A) have a full hearing before the commission on
22-7 issues that remain in dispute; and
22-8 (B) judicial review of issues that remain in
22-9 dispute;
22-10 (2) an issue of fact raised by a nonsettling party
22-11 cannot be waived by a settlement or stipulation of the other
22-12 parties; and
22-13 (3) the nonsettling party may use the issue of fact
22-14 raised by that party as the basis for judicial review.
22-15 (b) This section applies only to a proceeding for which a
22-16 final order has not been issued before the effective date of this
22-17 Act. On or after the effective date of this Act, the Public
22-18 Utility Commission of Texas may not approve a settlement unless the
22-19 settlement has been reached in accordance with rules adopted under
22-20 Section 16A, Public Utility Regulatory Act (Article 1446c, Vernon's
22-21 Texas Civil Statutes), as added by this Act, and its subsequent
22-22 amendments.
22-23 SECTION 3.02. Section 30, Public Utility Regulatory Act
22-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
22-25 as follows:
22-26 Sec. 30. The regulatory authority may require an annual
22-27 reporting from each utility company of all its expenditures for
22-28 business gifts and entertainment, and institutional,
22-29 consumption-inducing and other advertising or public relations
22-30 expenses. The regulatory authority shall not allow as costs or
22-31 expenses for rate-making purposes any of these expenditures which
22-32 the regulatory authority determines not to be in the public
22-33 interest. Charitable or civic contributions and the <The> cost of
22-34 legislative-advocacy expenses shall not in any case be allowed as
22-35 costs or expenses for rate-making purposes. Reasonable costs of
22-36 participating in a proceeding under this Act <charitable or civic
22-37 contributions> may be allowed not to exceed the amount approved by
22-38 the regulatory authority.
22-39 SECTION 3.03. Article VI, Public Utility Regulatory Act
22-40 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
22-41 amending Section 41 and adding Section 41C to read as follows:
22-42 Sec. 41. The components of invested capital and net income
22-43 shall be determined according to the following rules:
22-44 (a) Invested Capital. Utility rates shall be based
22-45 upon the original cost of property used by and useful to the public
22-46 utility in providing service including construction work in
22-47 progress at cost as recorded on the books of the utility. The cost
22-48 of local exchange company pay telephone property, as that term is
22-49 defined by Section 41C of this Act, may not be included in the rate
22-50 base, except as provided by Section 41C of this Act. The inclusion
22-51 of construction work in progress is an exceptional form of rate
22-52 relief to be granted only upon the demonstration by the utility
22-53 that such inclusion is necessary to the financial integrity of the
22-54 utility. Construction work in progress shall not be included in
22-55 the rate base for major projects under construction to the extent
22-56 that such projects have been inefficiently or imprudently planned
22-57 or managed. Original cost shall be the actual money cost, or the
22-58 actual money value of any consideration paid other than money, of
22-59 the property at the time it shall have been dedicated to public
22-60 use, whether by the utility which is the present owner or by a
22-61 predecessor, less depreciation.
22-62 (b) Separations and Allocations. Costs of facilities,
22-63 revenues, expenses, taxes, and reserves shall be separated or
22-64 allocated as prescribed by the regulatory authority.
22-65 (c) Net Income. By "net income" is meant the total
22-66 revenues of the public utility less all reasonable and necessary
22-67 expenses as determined by the regulatory authority. The regulatory
22-68 authority shall determine expenses and revenues in a manner
22-69 consistent with the following:
22-70 (1) Transactions with Affiliated Interests.
23-1 Payment to affiliated interests for costs of any services, or any
23-2 property, right or thing, or for interest expense shall not be
23-3 allowed either as capital cost or as expense except to the extent
23-4 that the regulatory authority shall find such payment to be
23-5 reasonable and necessary for each item or class of items as
23-6 determined by the commission. Any such finding shall include
23-7 specific findings of the reasonableness and necessity of each item
23-8 or class of items allowed and a finding that the price to the
23-9 utility is no higher than prices charged by the supplying affiliate
23-10 to its other affiliates or divisions for the same item or class of
23-11 items, or to unaffiliated persons or corporations. The price paid
23-12 by gas utilities to affiliated interests for natural gas from Outer
23-13 Continental Shelf lands shall be subject to a rebuttable
23-14 presumption that such price is reasonable if the price paid does
23-15 not exceed the price permitted by federal regulation if such gas is
23-16 regulated by any federal agency or if not regulated by a federal
23-17 agency does not exceed the price paid by nonaffiliated parties for
23-18 natural gas from Outer Continental Shelf lands. The burden of
23-19 establishing that such a price paid is not reasonable shall be on
23-20 any party challenging the reasonableness of such price.
23-21 (2) Income Taxes. If the public utility is a
23-22 member of an affiliated group that is eligible to file a
23-23 consolidated income tax return, and if it is advantageous to the
23-24 public utility to do so, income taxes shall be computed as though a
23-25 consolidated return had been so filed and the utility had realized
23-26 its fair share of the savings resulting from the consolidated
23-27 return, unless it is shown to the satisfaction of the regulatory
23-28 authority that it was reasonable to choose not to consolidate
23-29 returns. The amounts of income taxes saved by a consolidated group
23-30 of which a public utility is a member by reason of the elimination
23-31 in the consolidated return of the intercompany profit on purchases
23-32 by the public utility from an affiliate shall be applied to reduce
23-33 the cost of the property or services so purchased. The investment
23-34 tax credit allowed against federal income taxes, to the extent
23-35 retained by the utility, shall be applied as a reduction in the
23-36 rate based contribution of the assets to which such credit applies,
23-37 to the extent and at such rate as allowed by the Internal Revenue
23-38 Code.
23-39 (3) Expenses Disallowed. The regulatory
23-40 authority shall not consider for ratemaking purposes the following
23-41 expenses:
23-42 (A) legislative advocacy expenses, whether
23-43 made directly or indirectly, including but not limited to
23-44 legislative advocacy expenses included in trade association dues;
23-45 (B) payments, except those made under an
23-46 insurance or risk-sharing arrangement executed before the date of
23-47 loss, made to cover costs of an accident, equipment failure, or
23-48 negligence at a utility facility owned by a person or governmental
23-49 body not selling power inside the State of Texas;
23-50 (C) Costs of processing a refund or credit
23-51 under Subsection (e) of Section 43 of this Act; <or>
23-52 (D) charitable or civic contributions; or
23-53 (E) any expenditure found by the
23-54 regulatory authority to be unreasonable, unnecessary, or not in the
23-55 public interest, including but not limited to executive salaries,
23-56 advertising expenses, legal expenses, and civil or administrative
23-57 penalties or fines.
23-58 The regulatory authority may promulgate reasonable rules and
23-59 regulations with respect to the allowance or disallowance of any
23-60 expenses for ratemaking purposes. The commission shall adopt
23-61 reasonable rules with respect to the allowance or disallowance of
23-62 costs of participating in a proceeding under this Act.
23-63 Sec. 41C. (a) The commission shall adopt rules allowing
23-64 providers of pay telephone service to designate certain pay
23-65 telephones as public interest pay telephones. The service of these
23-66 telephones constitutes public interest pay telephone service if the
23-67 utility demonstrates that the pay telephone will not recover its
23-68 cost because the pay telephone is located in:
23-69 (1) a rural or remote area where the volume of traffic
23-70 at the pay telephone is not sufficient to cover the cost of
24-1 providing the service; or
24-2 (2) an area where the expense associated with the
24-3 provision of the pay telephone service is significant due to theft,
24-4 vandalism, or other similar problems such that the volume of
24-5 traffic at the pay telephone is not sufficient to cover the costs
24-6 of providing the service.
24-7 (b) A utility may not include in the company's rate base the
24-8 costs of local exchange company pay telephone property or include
24-9 in the company's revenue and expense calculations the expense of
24-10 providing local exchange company pay telephone service to the
24-11 public.
24-12 (c) A utility may include in the company's cost of service
24-13 the expense of public interest pay telephone property and the
24-14 expense of providing public interest pay telephone service. The
24-15 utility has the burden of proof in establishing that the pay
24-16 telephone service constitutes public interest pay telephone
24-17 service. In addition, it is not sufficient for the utility to
24-18 merely show that the pay telephone is not expected to recover its
24-19 costs.
24-20 (d) The commission shall adopt rules to provide that the
24-21 total value of a contract is considered in determining whether a
24-22 pay telephone included in a contract for the provision of
24-23 telecommunications is a public interest pay telephone.
24-24 (e) The commission shall adopt rules to implement this
24-25 section.
24-26 (f) In this section:
24-27 (1) "Local exchange company pay telephone property"
24-28 means all property the local exchange company requires to provide
24-29 pay telephone service to the public, including the cost of pay
24-30 telephone hardware, pay telephone enclosures, pay telephone
24-31 internal software, lines costs, and switch costs. The term does
24-32 not include property the local exchange company requires to provide
24-33 public interest pay telephone service.
24-34 (2) "Local exchange company pay telephone service"
24-35 means each act done, rendered, or performed, each thing furnished
24-36 or supplied, and each facility used, furnished, or supplied by a
24-37 public utility to provide to the public pay telephone service. The
24-38 term does not include an act, thing, or facility used to provide
24-39 public interest pay telephone service.
24-40 (3) "Public interest pay telephone property" means all
24-41 property the local exchange company requires to provide pay
24-42 telephone service to the public from a pay telephone designated in
24-43 accordance with Subsection (a) of this section, including the cost
24-44 of pay telephone hardware, pay telephone enclosures, pay telephone
24-45 internal software, lines costs, and switch costs.
24-46 (4) "Public interest pay telephone service" means each
24-47 act done, rendered, or performed, each thing furnished or supplied,
24-48 and each facility used, furnished, or supplied by a public utility
24-49 to provide to the public pay telephone service from a pay telephone
24-50 designated in accordance with Subsection (a) of this section.
24-51 SECTION 3.04. Section 42, Public Utility Regulatory Act
24-52 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
24-53 as follows:
24-54 Sec. 42. (a) Whenever the regulatory authority, after
24-55 reasonable notice and hearing, on its own motion or on complaint by
24-56 any affected person, finds that the existing rates of any public
24-57 utility for any service are unreasonable or in any way in violation
24-58 of any provision of law, the regulatory authority shall determine
24-59 the just and reasonable rates, including maximum or minimum rates,
24-60 to be thereafter observed and in force, and shall fix the same by
24-61 order to be served on the public utility; and such rates shall
24-62 constitute the legal rates of the public utility until changed as
24-63 provided in this Act. Whenever a public utility does not itself
24-64 produce or generate that which it distributes, transmits, or
24-65 furnishes to the public for compensation, but obtains the same from
24-66 another source, the regulatory authority shall have the power and
24-67 authority to investigate the cost of such production or generation
24-68 in any investigation of the reasonableness of the rates of such
24-69 public utility.
24-70 (b) Not later than the 120th day after the regulatory
25-1 authority notifies the utility that the regulatory authority has
25-2 decided to proceed with an inquiry under this section relating to
25-3 the rates of the utility, the utility shall file a rate-filing
25-4 package concurrently with the regulatory authority and the office.
25-5 The regulatory authority shall make a final determination
25-6 concerning the matter not later than the 185th day after the date
25-7 on which the utility files the rate-filing package. However, the
25-8 185-day period is extended two days for each one day of actual
25-9 hearings on the merits of the case that exceeds 15 days.
25-10 (c) At any time after an initial complaint is filed under
25-11 this section, the regulatory authority may issue an interim order
25-12 fixing temporary rates for the utility that will continue until a
25-13 final determination on the matter is made. On issuance of a final
25-14 order, the regulatory authority may require the utility to refund
25-15 to customers or to credit against future bills all sums collected
25-16 during the period in which those temporary rates were in effect
25-17 that are in excess of the rate finally ordered, plus interest at
25-18 the current rate as finally determined by the commission or, if the
25-19 amounts collected during the period in which the temporary rates
25-20 were in effect are less than the amounts that would have been
25-21 collected under the rate finally ordered, the regulatory authority
25-22 shall authorize the utility to surcharge bills to recover the
25-23 difference between those amounts, plus interest on the amount of
25-24 the difference at the current rate as finally determined by the
25-25 commission.
25-26 (d) If the 185-day period has been extended as provided by
25-27 Subsection (b) of this section and the regulatory authority has not
25-28 issued a final order or fixed temporary rates on or before the
25-29 185th day, the rates charged by the utility on that 185th day
25-30 automatically become temporary rates. On issuance of a final
25-31 order, the regulatory authority shall require the utility to refund
25-32 to customers or to credit against future bills all sums collected
25-33 during the period in which those temporary rates were in effect
25-34 that are in excess of the rate finally ordered, plus interest at
25-35 the current rate as finally determined by the commission or, if the
25-36 amounts collected during the period in which the temporary rates
25-37 were in effect are less than the amounts that would have been
25-38 collected under the rate finally ordered, the regulatory authority
25-39 shall authorize the utility to surcharge bills to recover the
25-40 difference between those amounts, plus interest on the amount of
25-41 the difference at the current rate as finally determined by the
25-42 commission.
25-43 SECTION 3.05. Section 71A, Public Utility Regulatory Act
25-44 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
25-45 as follows:
25-46 Sec. 71A. (a) The commission may impose an administrative
25-47 penalty against a person regulated under this Act who violates this
25-48 Act or a rule or order adopted under this Act.
25-49 (b) The penalty for a violation may be in an amount not to
25-50 exceed $5,000. Each day a violation continues or occurs is a
25-51 separate violation for purposes of imposing a penalty.
25-52 (c) The amount of the penalty shall be based on:
25-53 (1) the seriousness of the violation, including the
25-54 nature, circumstances, extent, and gravity of any prohibited acts,
25-55 and the hazard or potential hazard created to the health, safety,
25-56 or economic welfare of the public;
25-57 (2) the economic harm to property or the environment
25-58 caused by the violation;
25-59 (3) the history of previous violations;
25-60 (4) the amount necessary to deter future violations;
25-61 (5) efforts to correct the violation; and
25-62 (6) any other matter that justice may require.
25-63 (d) If the executive director determines that a violation
25-64 has occurred, the executive director may issue to the commission a
25-65 report that states the facts on which the determination is based
25-66 and the director's recommendation on the imposition of a penalty,
25-67 including a recommendation on the amount of the penalty.
25-68 (e) Within 14 days after the date the report is issued, the
25-69 executive director shall give written notice of the report to the
25-70 person. The notice may be given by certified mail. The notice
26-1 must include a brief summary of the alleged violation and a
26-2 statement of the amount of the recommended penalty and must inform
26-3 the person that the person has a right to a hearing on the
26-4 occurrence of the violation, the amount of the penalty, or both the
26-5 occurrence of the violation and the amount of the penalty.
26-6 (f) Within 20 days after the date the person receives the
26-7 notice, the person in writing may accept the determination and
26-8 recommended penalty of the executive director or may make a written
26-9 request for a hearing on the occurrence of the violation, the
26-10 amount of the penalty, or both the occurrence of the violation and
26-11 the amount of the penalty.
26-12 (g) If the person accepts the determination and recommended
26-13 penalty of the executive director, the commission by order shall
26-14 approve the determination and impose the recommended penalty.
26-15 (h) If the person requests a hearing or fails to respond
26-16 timely to the notice, the executive director shall set a hearing
26-17 and give notice of the hearing to the person. The hearing shall be
26-18 held by an administrative law judge of the State Office of
26-19 Administrative Hearings. The administrative law judge shall make
26-20 findings of fact and conclusions of law and promptly issue to the
26-21 commission a proposal for a decision about the occurrence of the
26-22 violation and the amount of a proposed penalty. Based on the
26-23 findings of fact, conclusions of law, and proposal for a decision,
26-24 the commission by order may find that a violation has occurred and
26-25 impose a penalty or may find that no violation occurred. Before
26-26 any penalty may be assessed hereunder, the commission shall
26-27 establish by clear and convincing evidence that a violation has
26-28 occurred.
26-29 (i) The notice of the commission's order given to the person
26-30 under the Administrative Procedure and Texas Register Act (Article
26-31 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
26-32 amendments must include a statement of the right of the person to
26-33 judicial review of the order.
26-34 (j) Within 30 days after the date the commission's order is
26-35 final as provided by Subsection (c), Section 16, Administrative
26-36 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
26-37 Civil Statutes), and its subsequent amendments, the person shall:
26-38 (1) pay the amount of the penalty;
26-39 (2) pay the amount of the penalty and file a petition
26-40 for judicial review contesting the occurrence of the violation, the
26-41 amount of the penalty, or both the occurrence of the violation and
26-42 the amount of the penalty; or
26-43 (3) without paying the amount of the penalty, file a
26-44 petition for judicial review contesting the occurrence of the
26-45 violation, the amount of the penalty, or both the occurrence of the
26-46 violation and the amount of the penalty.
26-47 (k) Within the 30-day period, a person who acts under
26-48 Subdivision (3) of Subsection (j) of this section may:
26-49 (1) stay enforcement of the penalty by:
26-50 (A) paying the amount of the penalty to the
26-51 court for placement in an escrow account; or
26-52 (B) giving to the court a supersedeas bond that
26-53 is approved by the court for the amount of the penalty and that is
26-54 effective until all judicial review of the commission's order is
26-55 final; or
26-56 (2) request the court to stay enforcement of the
26-57 penalty by:
26-58 (A) filing with the court a sworn affidavit of
26-59 the person stating that the person is financially unable to pay the
26-60 amount of the penalty and is financially unable to give the
26-61 supersedeas bond; and
26-62 (B) giving a copy of the affidavit to the
26-63 executive director by certified mail.
26-64 (l) The executive director, on receipt of a copy of an
26-65 affidavit under Subdivision (2) of Subsection (k) of this section,
26-66 may file with the court, within five days after the date the copy
26-67 is received, a contest to the affidavit. The court shall hold a
26-68 hearing on the facts alleged in the affidavit as soon as
26-69 practicable and shall stay the enforcement of the penalty on
26-70 finding that the alleged facts are true. The person who files an
27-1 affidavit has the burden of proving that the person is financially
27-2 unable to pay the amount of the penalty and to give a supersedeas
27-3 bond.
27-4 (m) If the person does not pay the amount of the penalty and
27-5 the enforcement of the penalty is not stayed, the executive
27-6 director may refer the matter to the attorney general for
27-7 collection of the amount of the penalty.
27-8 (n) Judicial review of the order of the commission:
27-9 (1) is instituted by filing a petition as provided by
27-10 Section 19, Administrative Procedure and Texas Register Act
27-11 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
27-12 subsequent amendments; and
27-13 (2) is under the substantial evidence rule.
27-14 (o) If the court sustains the occurrence of the violation,
27-15 the court may uphold or reduce the amount of the penalty and order
27-16 the person to pay the full or reduced amount of the penalty. If
27-17 the court does not sustain the occurrence of the violation, the
27-18 court shall order that no penalty is owed.
27-19 (p) When the judgment of the court becomes final, the court
27-20 shall proceed under this subsection. If the person paid the amount
27-21 of the penalty and if that amount is reduced or is not upheld by
27-22 the court, the court shall order that the appropriate amount plus
27-23 accrued interest be remitted to the person. The rate of the
27-24 interest is the rate charged on loans to depository institutions by
27-25 the New York Federal Reserve Bank, and the interest shall be paid
27-26 for the period beginning on the date the penalty was paid and
27-27 ending on the date the penalty is remitted. If the person gave a
27-28 supersedeas bond and if the amount of the penalty is not upheld by
27-29 the court, the court shall order the release of the bond. If the
27-30 person gave a supersedeas bond and if the amount of the penalty is
27-31 reduced, the court shall order the release of the bond after the
27-32 person pays the amount.
27-33 (q) A penalty collected under this section shall be remitted
27-34 to the comptroller for deposit in the general revenue fund.
27-35 (r) All proceedings under this section are subject to the
27-36 Administrative Procedure and Texas Register Act (Article 6252-13a,
27-37 Vernon's Texas Civil Statutes) and its subsequent amendments <At
27-38 the request of the commission, the attorney general shall bring
27-39 suit for the appointment of a receiver to collect the assets and
27-40 carry on the business of a water or sewer utility that violates a
27-41 final order of the commission or allows any property owned or
27-42 controlled by it to be used in violation of a final order of the
27-43 commission.>
27-44 <(b) The court shall appoint a receiver if such appointment
27-45 is necessary to guarantee the collection of assessments, fees,
27-46 penalties, or interest, to guarantee continued service to the
27-47 customers of the utility, or to prevent continued or repeated
27-48 violation of the final order.>
27-49 <(c) The receiver shall execute a bond to assure the proper
27-50 performance of the receiver's duties in an amount to be set by the
27-51 court.>
27-52 <(d) After appointment and execution of bond the receiver
27-53 shall take possession of the assets of the utility specified by the
27-54 court. Until discharged by the court, the receiver shall perform
27-55 the duties that the court directs to preserve the assets and carry
27-56 on the business of the utility and shall strictly observe the final
27-57 order involved.>
27-58 <(e) Upon a showing of good cause by the utility, the court
27-59 may dissolve the receivership and order the assets and control of
27-60 the business returned to the utility>.
27-61 SECTION 3.06. Section 116, Public Utility Regulatory Act
27-62 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
27-63 as follows:
27-64 Sec. 116. <(a)> A person who owns or operates an ADAD and
27-65 who operates the ADAD without a valid permit or with an expired
27-66 permit or who operates the ADAD in violation of this article or a
27-67 commission rule or order is subject to an administrative penalty in
27-68 accordance with Section 71A of this Act <of not more than $1,000
27-69 for each day or portion of a day during which the ADAD was
27-70 operating in violation of this section.>
28-1 <(b) The administrative penalty authorized by this section
28-2 is civil in nature and is cumulative of any other penalty provided
28-3 by law.>
28-4 <(c) The commission by rule shall prescribe the procedures
28-5 for assessing an administrative penalty under this section. The
28-6 procedures shall require proper notice and hearing in accordance
28-7 with the Administrative Procedure and Texas Register Act (Article
28-8 6252-13a, Vernon's Texas Civil Statutes).>
28-9 <(d) A person may appeal the final order of the commission
28-10 under the Administrative Procedure and Texas Register Act (Article
28-11 6252-13a, Vernon's Texas Civil Statutes), using the substantial
28-12 evidence rule on appeal.>
28-13 <(e) The proceeds of administrative penalties collected
28-14 under this section shall be deposited to the credit of the General
28-15 Revenue Fund>.
28-16 SECTION 3.07. Sections 78 and 80, Public Utility Regulatory
28-17 Act (Article 1446c, Vernon's Texas Civil Statutes), are amended to
28-18 read as follows:
28-19 Sec. 78. An assessment is hereby imposed upon each public
28-20 utility within the commission's jurisdiction, including
28-21 interexchange telecommunications carriers, serving the ultimate
28-22 consumer equal to one-sixth of one percent of its gross receipts
28-23 from rates charged the ultimate consumers in Texas for the purpose
28-24 of defraying the costs and expenses incurred in the administration
28-25 of this Act. The legislature may <Thereafter the commission shall,
28-26 subject to the approval of the Legislature,> adjust this
28-27 assessment to provide a level of income sufficient to fund the
28-28 commission and the office of public utility counsel. Any
28-29 interexchange telecommunications carrier found dominant as to any
28-30 service market under Section 100(b) or filing a petition under
28-31 Section 100(f) of this Act shall be required to reimburse the
28-32 Office of Public Utility Counsel for the costs of participation
28-33 before the commission on behalf of residential ratepayers in any of
28-34 the proceedings under Section 100 of this Act to the extent found
28-35 reasonable by the commission. Recovery of costs under this section
28-36 by the Office of Public Utility Counsel shall not exceed $175,000
28-37 per annum. Nothing in this Act or any other provision of law shall
28-38 prohibit interexchange telecommunications carriers who do not
28-39 provide local exchange telephone service from collecting the fee
28-40 imposed under this Act as an additional item separately stated on
28-41 the customer bill as "Utility Gross Receipts Assessment."
28-42 Sec. 80. (a) All fees, penalties, and interest paid under
28-43 the provisions of Sections 78 and 79 of this article shall be
28-44 collected by the comptroller of public accounts and paid into the
28-45 general revenue fund. <The commission shall notify the comptroller
28-46 of public accounts of any adjustment of the assessment imposed in
28-47 Section 78 when made.>
28-48 (b) All money paid to the commission or to the Office of
28-49 Public Utility Counsel under this Act shall be deposited in the
28-50 state treasury.
28-51 SECTION 3.08. Subsection (c), Section 6, Chapter 1132, Acts
28-52 of the 70th Legislature, Regular Session, 1987 (Article 4413(55),
28-53 Vernon's Texas Civil Statutes), is amended to read as follows:
28-54 (c) Any order or ruling of the Public Utility Commission of
28-55 Texas entered pursuant to this Act shall be deemed to have been
28-56 entered or adopted under the Public Utility Regulatory Act and, for
28-57 purposes of enforcement, is subject to enforcement pursuant to
28-58 Article XI <Sections 71 through 77> of the Public Utility
28-59 Regulatory Act and its subsequent amendments.
28-60 SECTION 3.09. (a) This article takes effect September 1,
28-61 1993, and applies to a proceeding for which a final order has not
28-62 been issued before that date.
28-63 (b) The changes in Sections 71A and 116, Public Utility
28-64 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), and
28-65 to Subsection (c), Section 6, Chapter 1132, Acts of the 70th
28-66 Legislature, Regular Session, 1987 (Article 4413(55), Vernon's
28-67 Texas Civil Statutes), made by this article apply only to a
28-68 violation committed on or after the effective date of this article.
28-69 A violation committed before the effective date of this article is
28-70 governed by the law in effect when the violation occurred, and that
29-1 law is continued in effect for that purpose.
29-2 ARTICLE 4
29-3 SECTION 4.01. Subsections (a) and (h), Section 43B, Public
29-4 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
29-5 Statutes), are amended to read as follows:
29-6 (a) Except as otherwise provided by this section, a local
29-7 exchange company that <is a cooperative corporation or that> has
29-8 fewer than 5,000 access lines in service in this state may change
29-9 rates by publishing notice of the change at least 60 days before
29-10 the date of the change in the place and form as prescribed by the
29-11 commission. The notice must include:
29-12 (1) the reasons for the rate change;
29-13 (2) a description of the affected service;
29-14 (3) an explanation of the right of the subscriber to
29-15 petition the commission for a hearing on the rate change; and
29-16 (4) a list of rates that are affected by the proposed
29-17 rate change.
29-18 (h) The commission is granted all necessary power and
29-19 authority to prescribe and collect fees and assessments from local
29-20 exchange companies necessary to recover the commission's and the
29-21 Office of Public Utility Counsel's costs of activities carried out
29-22 and services provided under Subsection (i) of Section 43 and
29-23 Sections 43A, <and> 43B, and 43C of this Act.
29-24 SECTION 4.02. Article VI, Public Utility Regulatory Act
29-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
29-26 adding Section 43C to read as follows:
29-27 Sec. 43C. (a) A local exchange company that is a
29-28 cooperative corporation may vote to partially deregulate the
29-29 company by sending a ballot to each corporation member. The ballot
29-30 may be included in a bill or sent separately. The ballot shall
29-31 provide for voting for or against the proposition: "Authorizing
29-32 the partial deregulation of the (name of local exchange company)."
29-33 (b) The company may offer extended local calling services or
29-34 new services on an optional basis, restructure rates of existing
29-35 services, or make changes in its rates or tariffs if:
29-36 (1) a majority of the ballots returned to the company
29-37 not later than the 45th day after the date on which the ballots are
29-38 mailed favor deregulation; and
29-39 (2) the company:
29-40 (A) files concurrently with the commission and
29-41 the office a statement of intent, as prescribed by Subsection (c)
29-42 of this section, not later than the 61st day before the date on
29-43 which the proposed change will take effect;
29-44 (B) provides notice of the proposed change to
29-45 all customers and municipalities as prescribed by Subsection (d) of
29-46 this section; and
29-47 (C) files with the commission affidavits
29-48 verifying the provision of notice as prescribed by Subsection (e)
29-49 of this section.
29-50 (c) The statement of intent required by Paragraph (A) of
29-51 Subdivision (2) of Subsection (b) of this section must include:
29-52 (1) a copy of a resolution approving the proposed
29-53 change and authorizing the filing of the statement of intent signed
29-54 by a majority of the members of the local exchange telephone
29-55 company's board of directors;
29-56 (2) a description of the services affected by the
29-57 proposed change;
29-58 (3) a copy of the proposed tariff for the affected
29-59 service;
29-60 (4) a copy of the customer notice required by
29-61 Subdivision (2) of Subsection (b) of this section;
29-62 (5) the amount by which the company's total gross
29-63 annual revenues will increase or decrease as a result of the
29-64 change; and
29-65 (6) a statement explaining in detail the estimated
29-66 effect of the change on the utility's revenue by revenue class and
29-67 stating the classes and number of classes affected.
29-68 (d) The local exchange company shall provide to all affected
29-69 customers and parties, including municipalities, at least two
29-70 notices of the proposed change by bill insert or by individual
30-1 notice. The company shall provide the first notice not later than
30-2 the 61st day before the date on which the proposed change will take
30-3 effect. The company shall provide the last notice not later than
30-4 the 31st day before the date on which the proposed change will take
30-5 effect. Each notice prescribed by this subsection must include:
30-6 (1) a description of the services affected by the
30-7 proposed change;
30-8 (2) the effective date of the proposed change;
30-9 (3) an explanation of the customer's right to petition
30-10 the commission for a review under Subsection (f) of this section;
30-11 (4) an explanation of the customer's right to obtain a
30-12 copy of the proposed tariff from the company;
30-13 (5) the amount by which the company's total gross
30-14 annual revenues will increase or decrease as a result of the
30-15 proposed change; and
30-16 (6) a list of rates that are affected by the proposed
30-17 rate change.
30-18 (e) Not later than the 15th day before the date on which the
30-19 proposed change will take effect, the local exchange telephone
30-20 company shall file with the commission affidavits that verify that
30-21 the company provided each notice prescribed under Subsection (d) of
30-22 this section.
30-23 (f) The commission shall review a proposed change filed
30-24 under this section if:
30-25 (1) the commission receives, not later than the 30th
30-26 day after the date notice is provided under Subsection (d) of this
30-27 section, complaints relating to the proposed change:
30-28 (A) signed by at least five percent of the
30-29 affected local service customers; or
30-30 (B) from an affected intrastate access customer,
30-31 or group of affected intrastate access customers, that in the
30-32 preceding 12 months accounted for more than 10 percent of the
30-33 company's total intrastate access revenues; or
30-34 (2) the company does not comply with the procedural
30-35 requirements of this section.
30-36 (g) Notwithstanding any other provision of this section, the
30-37 commission may conduct a review in accordance with Section 42 of
30-38 this Act. On review, the commission may suspend the actions of the
30-39 local exchange telephone company during the pendency of review.
30-40 (h) A company that is partially deregulated under this
30-41 section may vote to reverse the deregulation by sending a ballot to
30-42 each corporation member. The ballot may be included in a bill or
30-43 sent separately. The ballot shall provide for voting for or
30-44 against the proposition: "Reversing the partial deregulation of
30-45 the (name of local exchange company)." The partial deregulation is
30-46 reversed if a majority of the ballots returned to the company not
30-47 later than the 45th day after the date on which the ballots are
30-48 mailed favor reversal.
30-49 (i) The commission by rule shall prescribe the voting
30-50 procedures a company is required to use under this section.
30-51 (j) This section does not:
30-52 (1) prohibit a local exchange telephone company from
30-53 filing for a new service or rate change under another applicable
30-54 section of this Act; or
30-55 (2) affect the application of other provisions of this
30-56 Act not directly related to rate-making or the authority of the
30-57 commission to require the company to file reports required under
30-58 this Act or under rules adopted by the commission.
30-59 SECTION 4.03. Section 45, Public Utility Regulatory Act
30-60 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
30-61 as follows:
30-62 Sec. 45. (a) No public utility may, as to rates or
30-63 services, make or grant any unreasonable preference or advantage to
30-64 any corporation or person within any classification, or subject any
30-65 corporation or person within any classification to any unreasonable
30-66 prejudice or disadvantage. No public utility may establish and
30-67 maintain any unreasonable differences as to rates of service either
30-68 as between localities or as between classes of service.
30-69 (b) A public utility may not impose a restriction, including
30-70 a geographic requirement per location or a minimum line
31-1 requirement, that will limit the availability of central office
31-2 based PBX-type services to any business, either individually or as
31-3 part of a sharing arrangement. A public utility may not
31-4 discriminate between individual businesses obtaining central office
31-5 based PBX-type services and businesses obtaining those services
31-6 through a sharing arrangement.
31-7 SECTION 4.04. Section 27, Public Utility Regulatory Act
31-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
31-9 adding Subsection (g) to read as follows:
31-10 (g) Dominant carriers shall submit to the commission, on an
31-11 annual basis, cost accounting information on all of the services
31-12 provided by the carrier in the State of Texas in an easily read
31-13 form that complies with generally accepted accounting principles.
31-14 The cost accounting information of each service provided by the
31-15 carrier shall be separated from the cost accounting information of
31-16 other services and shall indicate all of the costs attributable
31-17 directly or indirectly to each service. All costs for services
31-18 provided by the carrier in the State of Texas shall be fully
31-19 allocated in a manner as if each service was a stand alone
31-20 business. All information submitted to the commission shall be
31-21 available to the public. The commission is granted all necessary
31-22 power and authority under this Act to promulgate rules and
31-23 establish procedures for the purposes of enforcing and implementing
31-24 this section.
31-25 SECTION 4.05. Article VII, Public Utility Regulatory Act
31-26 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
31-27 adding Section 61A to read as follows:
31-28 Sec. 61A. (a) Within six months of the effective date of
31-29 this section, the commission shall adopt rules providing that
31-30 owners and operators of pay telephones:
31-31 (1) shall not impose any charge for local directory
31-32 assistance calls or calls made pursuant to Chapter 772, Health and
31-33 Safety Code; and
31-34 (2) shall, if other than a local exchange company, not
31-35 impose a total charge for a local call that is an amount greater
31-36 than the rate charged for a local call placed from a pay telephone
31-37 owned by a local exchange company at the same location.
31-38 (b) Any telecommunications carrier using the facilities or
31-39 services of a pay telephone provider shall pay the provider just
31-40 and reasonable compensation for the use of those facilities or
31-41 services to complete billable operator services calls and for any
31-42 other use that the commission determines appropriate consistent
31-43 with the provisions of this Act. The compensation shall be
31-44 determined by the commission subject to this Act. This section
31-45 shall not apply to the extent a telecommunications carrier and a
31-46 pay telephone provider have reached their own written compensation
31-47 agreement.
31-48 ARTICLE 5
31-49 SECTION 5.01. Section 23, Public Utility Regulatory Act
31-50 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
31-51 as follows:
31-52 Sec. 23. (a) Any municipality regulating its public
31-53 utilities pursuant to this Act may <shall> require from those
31-54 utilities all necessary data to make a reasonable determination of
31-55 rate base, expenses, investment, and rate of return within the
31-56 municipal boundaries. The standards for such determination shall
31-57 be based on the procedures and requirements of this Act and said
31-58 municipality shall retain any and all personnel necessary to make
31-59 the determination of reasonable rates required under this Act.
31-60 (b) Not later than the 31st day before the date on which a
31-61 utility files a statement of intent under Subsection (a) of Section
31-62 43 of this Act, the utility shall provide to each municipality
31-63 having original jurisdiction notice of intent to file the
31-64 statement. Not later than the 30th day after a municipality
31-65 receives notice of intent to file a statement, the municipality may
31-66 request that the utility file with the municipality a statement of
31-67 intent in accordance with Subsection (a) of Section 43 of this Act.
31-68 If requested, the utility shall file the statement of intent with
31-69 the municipality at the same time the statement is filed with the
31-70 commission and the office.
32-1 SECTION 5.02. Subsection (a), Section 43, Public Utility
32-2 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
32-3 amended to read as follows:
32-4 (a) Except as provided by Subsection (b) of Section 23 of
32-5 this Act, no <No> utility may make changes in its rates except by
32-6 filing a statement of intent concurrently with the office and with
32-7 the regulatory authority having original jurisdiction at least 35
32-8 days prior to the effective date of the proposed change. The
32-9 statement of intent shall include proposed revisions of tariffs and
32-10 schedules and a statement specifying in detail each proposed
32-11 change, the effect the proposed change is expected to have on the
32-12 revenues of the company, the classes and numbers of utility
32-13 consumers affected, and such other information as may be required
32-14 by the regulatory authority's rules and regulations. A copy of the
32-15 statement of intent shall be mailed or delivered to the appropriate
32-16 officer of each affected municipality, and notice shall be given by
32-17 publication in conspicuous form and place of a notice to the public
32-18 of such proposed change once in each week for four successive weeks
32-19 prior to the effective date of the proposed change in a newspaper
32-20 having general circulation in each county containing territory
32-21 affected by the proposed change, and by mail to such other affected
32-22 persons as may be required by the regulatory authority's rules and
32-23 regulations. The regulatory authority may waive the publication of
32-24 notice requirement prescribed by this subsection in a proceeding
32-25 that involves a rate reduction for all affected ratepayers only.
32-26 The applicant shall give notice of the proposed rate change by mail
32-27 to all affected utility customers. The regulatory authority by
32-28 rule shall also define other proceedings for which the publication
32-29 of notice requirement prescribed by this subsection may be waived
32-30 on a showing of good cause, provided that no waiver may be granted
32-31 in any proceeding involving a rate increase to any class or
32-32 category of ratepayer.
32-33 SECTION 5.03. Subsection (g), Section 43, Public Utility
32-34 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
32-35 amended to read as follows:
32-36 (g)(1) A rate or tariff set by the commission shall not
32-37 authorize a utility to automatically adjust and pass through to its
32-38 customers changes in fuel or other costs of the utility.
32-39 (2)(A) Subdivision (1) of this subsection does not
32-40 prohibit the commission from reviewing and providing for
32-41 adjustments of a utility's fuel factor. The commission by rule
32-42 shall implement procedures that provide for the timely adjustment
32-43 of a utility's fuel factor, with or without a hearing. The
32-44 procedures shall provide that the findings required by Subdivision
32-45 (1) of Subsection (c) of Section 41 of this Act regarding fuel
32-46 transactions with affiliated interests are made in a fuel
32-47 reconciliation proceeding or in a rate case filed under Subsection
32-48 (a) of this section or under Section 42 of this Act. The
32-49 procedures shall provide an affected party notice and the
32-50 opportunity to request a hearing before the commission. However,
32-51 the commission may adjust a utility's fuel factor without a hearing
32-52 if the commission determines that a hearing is not necessary. If
32-53 the commission holds a hearing, the <Any revision of a utility's
32-54 billings to its customers to allow for the recovery of additional
32-55 fuel costs may be made only upon a public hearing and order of the
32-56 commission.>
32-57 <(B) The> commission may consider any evidence
32-58 that is appropriate and in the public interest at such hearing.
32-59 The commission shall render a timely decision approving,
32-60 disapproving, or modifying the adjustment to the utility's fuel
32-61 factor.
32-62 (B) The commission by rule shall provide for the
32-63 reconciliation of a utility's fuel costs on a timely basis.
32-64 (C) A proceeding under this subsection shall not
32-65 be considered a rate case under Section 43 of this Act.
32-66 (3)(A) <The commission may, after a hearing, grant
32-67 interim relief for fuel cost increases that are the result of
32-68 unusual and emergency circumstances or conditions.>
32-69 <(4)(A)> This subsection applies only to increases or
32-70 decreases in the cost of purchased electricity which have been:
33-1 (i) accepted by a federal regulatory
33-2 authority; or
33-3 (ii) approved after a hearing by the
33-4 Public Utility Commission of Texas.
33-5 (B) The Public Utility Commission of Texas may
33-6 utilize any appropriate method to provide for the adjustment of the
33-7 cost of purchased electricity upon such terms and conditions as the
33-8 commission may determine. Such purchased electricity costs may be
33-9 recovered concurrently with the effective date of the changed costs
33-10 to the purchasing utility or as soon thereafter as is reasonably
33-11 practical.
33-12 SECTION 5.04. Subsection (h), Section 43, Public Utility
33-13 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
33-14 amended to read as follows:
33-15 (h) The commission by rule may prescribe a schedule for
33-16 electric utilities to appear before the commission in a general
33-17 rate proceeding under this section. The schedule shall cover at
33-18 least a five-year period. The commission shall review and by rule
33-19 shall revise the schedule at least every five years. The rules
33-20 prescribing the schedule must:
33-21 (1) provide that the schedule applies only to
33-22 investor-owned electric utilities and to the electric operations of
33-23 river authorities;
33-24 (2) allow a utility to initiate a rate proceeding
33-25 before its scheduled time if:
33-26 (A) the utility is earning a return on equity,
33-27 computed over the immediately preceding 12-month period, that is
33-28 less than the utility's allowed return on equity as established by
33-29 the commission in the utility's most recent general rate case; or
33-30 (B) a new generating facility or other major
33-31 construction project has been completed and has been placed in
33-32 service;
33-33 (3) specifically authorize a utility to initiate a
33-34 rate proceeding before its scheduled time by a showing of good
33-35 cause;
33-36 (4) define the good cause conditions that will allow a
33-37 utility to initiate a rate proceeding before its scheduled time;
33-38 and
33-39 (5) define the conditions under which a utility may
33-40 bypass a scheduled rate proceeding if a rate change is not needed
33-41 <A water or sewer utility exempted in Subsection (a) of this
33-42 section may change its rates by filing a statement of change with
33-43 the commission at least 30 days after providing notice of the
33-44 change to its customers. The changed rates may be put into effect
33-45 on the filing of the statement of change. At the request of
33-46 one-tenth of the customers of the utility within 60 days after the
33-47 day the rates are put into effect, the commission may hold a
33-48 hearing, which may be an informal proceeding. On a finding by the
33-49 commission that the changed rates are not just and reasonable, the
33-50 commission shall set the utility's rates according to its usual
33-51 procedure. The utility shall refund or credit against future bills
33-52 all sums collected since the filing of the statement of change in
33-53 excess of the rate finally set plus interest at the current rate as
33-54 finally determined by the commission. No filing for a rate change
33-55 under this section may be made for a period of six months from the
33-56 last such filing by the same utility>.
33-57 SECTION 5.05. Article VI, Public Utility Regulatory Act
33-58 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
33-59 adding Section 37A to read as follows:
33-60 Sec. 37A. (a) An electric cooperative corporation that
33-61 provides retail electric utility service at distribution voltage is
33-62 exempt from rate regulation if a majority of the members voting in
33-63 an election on the deregulation of the electric cooperative vote to
33-64 approve the exemption and the electric cooperative sends notice of
33-65 the action to each applicable regulatory authority. An electric
33-66 cooperative that wants to hold an election under this section shall
33-67 send a ballot by mail to each electric cooperative member. The
33-68 electric cooperative may include the ballot in a monthly billing.
33-69 The ballot shall provide for voting for or against rate
33-70 deregulation of the electric cooperative. If the proposition is
34-1 approved, the electric cooperative shall send each ballot to the
34-2 commission not later than the 10th day after the date the electric
34-3 cooperative counts the ballots. Based on the ballots received, the
34-4 commission shall administratively certify that the electric
34-5 cooperative is or is not deregulated for rate-making purposes. An
34-6 electric cooperative may not hold another election on the issue of
34-7 being exempt from rate regulation before the first anniversary of
34-8 the most recent election on the issue. Subsections (b) through (n)
34-9 of this section apply to an electric cooperative that has elected
34-10 to be exempt from rate regulation.
34-11 (b) No regulatory authority shall fix and regulate the rates
34-12 of an electric cooperative that has made an election under this
34-13 section to be exempt from rate regulation except as provided for
34-14 the commission in Subsections (g) and (i) of this section.
34-15 Notwithstanding Subsection (a) of Section 17 of this Act, the
34-16 commission has exclusive original jurisdiction in all of the
34-17 electric cooperative's service area in a proceeding initiated under
34-18 Subsection (g) or (i) of this section.
34-19 (c) An electric cooperative may change its rates by:
34-20 (1) adopting a resolution approving the proposed
34-21 change;
34-22 (2) mailing notice of the proposed change to:
34-23 (A) the commission;
34-24 (B) each affected municipality;
34-25 (C) each affected customer, which notice may be
34-26 included in a monthly billing; and
34-27 (D) each electric utility providing retail
34-28 service in the electric cooperative's service area or in the
34-29 adjoining service area; and
34-30 (3) making available at each of the electric
34-31 cooperative's business offices for review by all interested persons
34-32 a cost-of-service study that:
34-33 (A) is not more than five years old at the time
34-34 the electric cooperative adopts rates under this subsection; and
34-35 (B) bears the certification of a professional
34-36 engineer or certified public accountant.
34-37 (d)(1) The notice required by Subsection (c) of this section
34-38 must contain the following information:
34-39 (A) the increase or decrease in total operating
34-40 revenues over actual test year revenues or over test year revenues
34-41 adjusted to annualize the recovery of changes in the cost of
34-42 purchased electricity, stated both as a dollar amount and as a
34-43 percentage;
34-44 (B) the classes of utility customers affected
34-45 and the creation and application of any new rate classes;
34-46 (C) the increase or decrease for each class
34-47 stated as a percentage of actual test year revenues for the class
34-48 or of test year revenues for the class adjusted to annualize the
34-49 recovery of changes in the cost of purchased electricity;
34-50 (D) a statement that the commission may review
34-51 the rate change if the commission receives a petition in accordance
34-52 with Subsection (g) of this section;
34-53 (E) the address and telephone number of the
34-54 commission;
34-55 (F) a statement that a customer opposed to the
34-56 rate change should notify the electric cooperative in writing of
34-57 the person's opposition and should provide a return address; and
34-58 (G) a statement that members may review a copy
34-59 of any written opposition the electric cooperative receives.
34-60 (2) The electric cooperative may not be required to
34-61 include additional information in the notice.
34-62 (e) The electric cooperative shall make available for review
34-63 by a member of the cooperative at each of the electric
34-64 cooperative's business offices a copy of any written opposition to
34-65 the rate change the electric cooperative receives.
34-66 (f) The electric cooperative shall file tariffs with the
34-67 commission. If the electric cooperative complies with Subsection
34-68 (c) of this section, the commission shall approve the tariffs not
34-69 later than the 10th day after the 60-day period prescribed by
34-70 Subsection (g) of this section expires, unless a review is required
35-1 under Subsection (g) or (i) of this section. If the tariffs are
35-2 approved or if a review is not required and the commission fails to
35-3 act during the period prescribed by this subsection, the change in
35-4 rates takes effect on the 70th day after the date on which the
35-5 electric cooperative first complies with all requirements of
35-6 Subsection (c) of this section or on a later date determined by the
35-7 electric cooperative. Except as provided by Subsections (g) and
35-8 (i) of this section, the rates of the electric cooperative are not
35-9 subject to review.
35-10 (g) The commission shall review a change in rates under this
35-11 section if, not later than the 60th day after the date the electric
35-12 cooperative first complies with all requirements of Subsection (c)
35-13 of this section, the commission receives a petition requesting
35-14 review signed by:
35-15 (1) at least 10 percent of the members of the electric
35-16 cooperative;
35-17 (2) members of the electric cooperative who purchased
35-18 more than 50 percent of the electric cooperative's annual energy
35-19 sales to a customer class in the test year, provided that the
35-20 petition includes a certification of the purchases; or
35-21 (3) an executive officer of an affected electric
35-22 utility, provided that the petition prescribes the particular class
35-23 or classes for which a review is requested.
35-24 (h) When a person files a petition under Subsection (g) of
35-25 this section, the person shall notify the electric cooperative in
35-26 writing of the action.
35-27 (i) The commission may on its own motion review the rates of
35-28 an electric cooperative if the commission first finds that there is
35-29 good cause to believe that the electric cooperative is earning more
35-30 than a reasonable return.
35-31 (j) The commission shall conduct a review under Subdivision
35-32 (1) or (2) of Subsection (g) of this section or under Subsection
35-33 (i) of this section in accordance with Section 43 of this Act and
35-34 the other applicable rate-setting principles of Article VI of this
35-35 Act, except that:
35-36 (1) the period for review does not begin until the
35-37 electric cooperative files a rate-filing package as required by
35-38 commission rules;
35-39 (2) the proposed change may not be suspended during
35-40 the pendency of the review; however, the electric cooperative shall
35-41 refund or credit against future bills all sums collected in excess
35-42 of the rate finally set by the commission, if the commission so
35-43 orders; and
35-44 (3) the electric cooperative shall observe the rates
35-45 set by the commission until the rates are changed as provided by
35-46 this section or by other sections of this Act.
35-47 (k) For a review conducted under Subdivision (3) of
35-48 Subsection (g) of this section, the electric cooperative shall file
35-49 with the commission a copy of the cost-of-service study required
35-50 under Subsection (c)(3) of this section not later than the 10th day
35-51 after the date the electric cooperative receives from the affected
35-52 electric utility notice that a petition has been filed. The
35-53 commission shall determine for each class for which review has been
35-54 requested the annual cost of providing service to the class, as
35-55 stated in the electric cooperative's cost-of-service study, and the
35-56 revenues for the class that would be produced by multiplying the
35-57 rate set by the electric cooperative by the annual billing units
35-58 for the class, as stated in the cost-of-service study. If the
35-59 electric cooperative proposes a rate class solely for a new
35-60 customer, the electric cooperative shall estimate the reasonable
35-61 annual cost of providing service to the class, and the electric
35-62 cooperative shall base class revenues on reasonable estimates of
35-63 billing units.
35-64 (l) The rate for each class for which review has been
35-65 requested under Subdivision (3) of Subsection (g) of this section
35-66 is suspended during the pendency of the review. The commission
35-67 shall dismiss the petition and approve the rates if the revenues
35-68 for the class are equal to or greater than the cost of providing
35-69 service to the class. The commission shall disapprove the rate if
35-70 the revenues for the class are less than the cost of providing
36-1 service to the class; however, this action does not affect
36-2 reconsideration of the rate as a part of any subsequent rate-making
36-3 proceeding. The rate adopted by the electric cooperative is deemed
36-4 approved and may be placed into effect if the commission fails to
36-5 make its final determination administratively not later than the
36-6 45th day after the date the electric cooperative files its
36-7 cost-of-service study.
36-8 (m) Except as provided by Subsection (a) of this section,
36-9 the members of an electric cooperative may at any time revoke the
36-10 electric cooperative's election to be exempt from rate regulation
36-11 or elect to again be exempt from rate regulation by majority vote
36-12 of the members voting.
36-13 (n) This section does not affect the application of other
36-14 provisions of this Act not directly related to rates or to the
36-15 authority of the commission to require an electric cooperative to
36-16 file reports required under this Act or rules adopted by the
36-17 commission. A service fee or a service rule or regulation set by
36-18 the electric cooperative under this section must comply with
36-19 commission rules applicable to all electric utilities. The
36-20 commission may determine whether an electric cooperative has
36-21 unlawfully charged, collected, or received a rate for electric
36-22 utility service.
36-23 SECTION 5.06. Article III, Public Utility Regulatory Act
36-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
36-25 adding Section 19A to read as follows:
36-26 Sec. 19A. (a) The commission shall adopt rules to encourage
36-27 economical production of electric capacity and energy for sale at
36-28 wholesale with the goal of benefiting ratepayers with competition
36-29 and diversity in electric power generation.
36-30 (b) Except as otherwise provided by this section, the
36-31 commission may adopt rules that provide for the exemption of exempt
36-32 wholesale generators from any provision of this Act and from other
36-33 rules adopted by the commission if the commission determines that
36-34 the exemption is in the public interest.
36-35 (c) The commission may not provide for an exemption from the
36-36 provisions of:
36-37 (1) Section 28 of this Act relating to requiring
36-38 reports from the exempt wholesale generator;
36-39 (2) Subsections (a) and (b) of Section 29 of this Act
36-40 relating to access to books and records of the exempt wholesale
36-41 generator;
36-42 (3) Subsection (c) of Section 29 of this Act to the
36-43 extent necessary to ensure the reliability and financial integrity
36-44 of the exempt wholesale generator;
36-45 (4) Section 35 of this Act relating to safety
36-46 regulations; or
36-47 (5) Subdivision (1) of Subsection (c) of Section 41
36-48 relating to affiliate interests, if an affiliate of the exempt
36-49 wholesale generator is an electric utility whose cost of service is
36-50 regulated by the commission.
36-51 (d) The commission by rule shall require commission approval
36-52 of contracts between electric utilities and exempt wholesale
36-53 generators. Approval of a contract by the commission does not
36-54 affect the purchasing utility's burden of proving in a rate case or
36-55 a fuel reconciliation proceeding that the costs incurred in
36-56 relation to the contract were reasonable.
36-57 (e) The commission may not approve a contract under
36-58 Subsection (d) unless the commission determines that the contract
36-59 and the parties to the contract meet the standards the commission
36-60 determines to be in the public interest, including standards
36-61 requiring that:
36-62 (1) the financial integrity of the exempt wholesale
36-63 generator or the use by the generator of a capital structure that
36-64 employs proportionally greater amounts of debt than the capital
36-65 structure of the utility, or both, does not threaten the
36-66 generator's reliability;
36-67 (2) there are reasonable assurances of an adequate
36-68 fuel supply;
36-69 (3) the original prices, terms, and conditions of the
36-70 contract at the time the contract was entered were reasonable and
37-1 that it was reasonable for the parties to contract; and
37-2 (4) the exempt wholesale generator meets technical and
37-3 operating standards necessary for safe and reliable service.
37-4 (f) A finding that the original prices, terms, and
37-5 conditions of the contract at the time the contract was entered
37-6 were reasonable and that it was reasonable for the parties to
37-7 contract does not preclude the commission from reviewing the
37-8 utility's subsequent actions relating to the contract.
37-9 (g) In determining whether a contract is in the public
37-10 interest, the commission shall evaluate the potential for increases
37-11 or decreases in the cost of capital for electric utilities and any
37-12 resulting increases or decreases in retail rates that may result
37-13 from purchases of long-term wholesale power supplies instead of the
37-14 construction of new generation facilities by the utility.
37-15 (h) A facility is not considered an eligible facility if
37-16 ratepayers pay or have paid a rate or charge for or in connection
37-17 with the construction of the facility or for electric energy
37-18 produced by the facility, other than a portion of a rate or charge
37-19 that represents recovery of the cost of a wholesale rate or charge.
37-20 (i) An electric utility whose cost of service is regulated
37-21 by the commission may not contract to purchase electric energy or
37-22 capacity from an exempt wholesale generator that is an affiliate of
37-23 the utility. However, the utility may purchase energy or capacity
37-24 from an affiliated exempt wholesale generator during a system
37-25 emergency.
37-26 (j) The commission may not authorize an exempt wholesale
37-27 generator to make a sale for a purpose other than resale.
37-28 (k) The commission is entitled to have access to the
37-29 financial, technical, and operational records and books of an
37-30 exempt wholesale generator to the extent necessary to enforce this
37-31 section or rules adopted under this section.
37-32 (l) A decision of an electric utility to purchase power from
37-33 an exempt wholesale generator is subject to any capacity planning
37-34 and resource need review process, including required solicitations
37-35 for resources, that the commission may adopt.
37-36 (m) This section does not exempt an entity that generates
37-37 power in this state from an applicable environmental or siting
37-38 regulation.
37-39 (n) In this section:
37-40 (1) "Eligible facility" has the meaning assigned by
37-41 the Public Utility Holding Company Act of 1935 (15 U.S.C. Section
37-42 79z-5a(a)).
37-43 (2) "Exempt wholesale generator" has the meaning
37-44 assigned by the Public Utility Holding Company Act of 1935 (15
37-45 U.S.C. Section 79z-5a(a)).
37-46 ARTICLE 6
37-47 SECTION 6.01. Subsections (a), (b), and (e), Section 17,
37-48 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
37-49 Statutes), are amended to read as follows:
37-50 (a) Subject to the limitations imposed in this Act, and for
37-51 the purpose of regulating rates and services so that such rates may
37-52 be fair, just, and reasonable, and the services adequate and
37-53 efficient, the governing body of each municipality shall have
37-54 exclusive original jurisdiction over all electric<, water, and
37-55 sewer> utility rates, operations, and services provided by an
37-56 electric<, water, and sewer> utility within its city or town
37-57 limits.
37-58 (b) A <At any time after two years have passed from the date
37-59 this Act becomes effective, a> municipality may elect to have the
37-60 commission exercise exclusive original jurisdiction over electric<,
37-61 water, or sewer> utility rates, operations, and services within the
37-62 incorporated limits of the municipality. The governing body of a
37-63 municipality may by ordinance elect to surrender its original
37-64 jurisdiction to the commission, or the governing body may submit
37-65 the question of the surrender to the qualified voters at a
37-66 municipal election. Upon receipt of a petition signed by the
37-67 lesser of 20,000 or ten percent of the number of qualified voters
37-68 voting in the last preceding general election in that municipality,
37-69 the governing body shall submit the question of the surrender of
37-70 the municipality's original jurisdiction to the commission at a
38-1 municipal election.
38-2 (e) The commission shall have exclusive original
38-3 jurisdiction over electric<, water, and sewer> utility rates,
38-4 operations, and services not within the incorporated limits of a
38-5 municipality exercising exclusive original jurisdiction over those
38-6 rates, operations, and services as provided in this Act.
38-7 SECTION 6.02. Subsections (p), (q), and (r), Section 18,
38-8 Public Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
38-9 Statutes), are amended to read as follows:
38-10 (p) <Before January 15 of each odd-numbered year, the
38-11 commission shall report to the legislature on the scope of
38-12 competition in regulated telecommunications markets and the impact
38-13 of competition on customers in both competitive and noncompetitive
38-14 markets, with a specific focus on rural markets. The report shall
38-15 include an assessment of the impact of competition on the rates and
38-16 availability of telecommunications services for residential and
38-17 business customers and shall specifically address any effects on
38-18 universal service. The report shall provide a summary of
38-19 commission actions over the preceding two years that reflect
38-20 changes in the scope of competition in regulated telecommunications
38-21 markets. The report shall also include recommendations to the
38-22 legislature for further legislation that the commission finds
38-23 appropriate to promote the public interest in the context of a
38-24 partially competitive telecommunications market.>
38-25 <(q)> The commission may exempt from any requirement of this
38-26 section an interexchange telecommunications carrier that the
38-27 commission determines does not have a significant effect on the
38-28 public interest, and it may exempt any interexchange carrier which
38-29 solely relies on the facilities of others to complete long distance
38-30 calls if the commission deems this action to be in the public
38-31 interest.
38-32 (q) <(r)> Requirements imposed by Subsections (c), (d), (k),
38-33 (l), (m), (n), (o), and (p)<, and (q)> of this section on an
38-34 interexchange telecommunications carrier shall apply to nondominant
38-35 carriers and shall constitute the minimum requirements to be
38-36 imposed by the commission for any dominant carrier.
38-37 SECTION 6.03. Subsection (c), Section 26, Public Utility
38-38 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), as
38-39 amended by Chapters 325 and 1167, Acts of the 71st Legislature,
38-40 Regular Session, 1989, is amended to reconcile those amendments to
38-41 read as follows:
38-42 (c)(1) Ratepayers of a municipally owned electric utility
38-43 outside the municipal limits may appeal any action of the governing
38-44 body affecting the rates of the municipally owned electric utility
38-45 through filing with the commission a petition for review signed by
38-46 the lesser of 10,000 or 5 percent of the ratepayers served by such
38-47 utility outside the municipal limits. For purposes of this
38-48 subsection each person receiving a separate bill shall be
38-49 considered as a ratepayer. But no person shall be considered as
38-50 being more than one ratepayer notwithstanding the number of bills
38-51 received. Such petition for review shall be considered properly
38-52 signed if signed by any person, or spouse of any such person, in
38-53 whose name residential utility service is carried.
38-54 (2) The municipality that owns the electric utility
38-55 shall on request disclose to any person the number of ratepayers
38-56 who reside outside the municipal limits. The municipality shall
38-57 provide the information by telephone or in a written form, as
38-58 preferred by the person making the request. The municipality may
38-59 not charge a fee for providing the information. The municipality
38-60 shall on request provide to any person a list of the names and
38-61 addresses of the ratepayers who reside outside the municipal
38-62 limits. The municipality may charge a reasonable fee to cover the
38-63 cost of providing the list.
38-64 (3) <(2)> Not later than the 14th day after the date
38-65 on which the governing body makes a final decision, the
38-66 municipality shall issue a written report stating the effect of the
38-67 decision on each class of ratepayers. The appeal process shall be
38-68 instituted by filing a petition for review with the commission and
38-69 serving copies on all parties to the original rate proceeding. The
38-70 petition must be filed not later than the 45th day after the date
39-1 on which the municipality issues the written report prescribed by
39-2 this subsection.
39-3 (4) Not later than the 90th day after the date on
39-4 which a petition for review that meets the requirements of this
39-5 subsection is filed, the municipality shall file with the
39-6 commission a rate application that complies in all material
39-7 respects with the rules and forms prescribed by the commission.
39-8 The commission may, for good cause shown, extend the <time> period
39-9 for filing the rate application.
39-10 SECTION 6.04. Section 41B, Public Utility Regulatory Act
39-11 (Article 1446c, Vernon's Texas Civil Statutes), as added by Chapter
39-12 1182, Acts of the 71st Legislature, Regular Session, 1989, is
39-13 amended to read as follows:
39-14 Sec. 41C <41B>. The commission shall not have the authority
39-15 to interfere with employee wages and benefits, working conditions,
39-16 or other terms or conditions of employment that are the product of
39-17 a collective bargaining agreement recognized under federal law.
39-18 Employee wage rates and benefit levels that are the product of such
39-19 bargaining shall be presumed reasonable.
39-20 SECTION 6.05. Subsection (c), Section 43, Public Utility
39-21 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
39-22 amended to read as follows:
39-23 (c) Whenever there is filed with the Regulatory Authority
39-24 any schedule modifying or resulting in a change in any rates then
39-25 in force, the Regulatory Authority shall on complaint by any
39-26 affected person or may on its own motion, at any time within 30
39-27 days from the date when such change would or has become effective,
39-28 and, if it so orders, without answer or other formal pleading by
39-29 the utility, but on reasonable notice, including notice to the
39-30 governing bodies of all affected municipalities and counties, enter
39-31 on a hearing to determine the propriety of such change. The
39-32 Regulatory Authority shall hold such a hearing in every case in
39-33 which the change constitutes a major change in rates, provided that
39-34 an informal proceeding may satisfy this requirement if no complaint
39-35 has been received before the expiration of 45 days after notice of
39-36 the change shall have been filed. In each case where the
39-37 commission determines it is in the public interest to collect
39-38 testimony at a regional hearing for the inclusion in the record,
39-39 the commission shall hold a regional hearing at an appropriate
39-40 location. A regional hearing is not required in a case involving a
39-41 <water, sewer, or> member-owned utility, unless the commission
39-42 determines otherwise.
39-43 SECTION 6.06. Section 49, Public Utility Regulatory Act
39-44 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
39-45 as follows:
39-46 Sec. 49. For the purposes of this article only,
39-47 "retail<: (a) "Retail> public utility" means any person,
39-48 corporation, <water supply or sewer service corporation,>
39-49 municipality, political subdivision or agency, or cooperative
39-50 corporation, now or hereafter operating, maintaining, or
39-51 controlling in Texas facilities for providing retail utility
39-52 service.
39-53 <(b) For the purposes of this article only, "public utility"
39-54 includes a water supply or sewer service corporation.>
39-55 SECTION 6.07. Subsections (a) and (b), Section 72, Public
39-56 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
39-57 Statutes), are amended to read as follows:
39-58 (a) Any public utility<, water supply or sewer service
39-59 corporation,> or affiliated interest that knowingly violates a
39-60 provision of this Act, fails to perform a duty imposed on it, or
39-61 fails, neglects, or refuses to obey an order, rule, regulation,
39-62 direction, or requirement of the commission or decree or judgment
39-63 of a court, shall be subject to a civil penalty of not less than
39-64 $1,000 nor more than $5,000 for each offense.
39-65 (b) A public utility<, water supply or sewer service
39-66 corporation,> or affiliated interest commits a separate offense
39-67 each day it continues to violate the provisions of Subsection (a)
39-68 of this section.
39-69 SECTION 6.08. Subsection (a), Section 74, Public Utility
39-70 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), is
40-1 amended to read as follows:
40-2 (a) Except as provided by Section 117 <87B> of this Act, any
40-3 person or persons who willfully and knowingly violate the
40-4 provisions of this Act shall be guilty of a third degree felony.
40-5 SECTION 6.09. The following sections of the Public Utility
40-6 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes) are
40-7 repealed:
40-8 (1) Section 71B;
40-9 (2) Section 87A; and
40-10 (3) Section 90.
40-11 ARTICLE 7
40-12 SECTION 7.01. Article XIII, Public Utility Regulatory Act
40-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
40-14 adding Sections 91A and 91B to read as follows:
40-15 Sec. 91A. (a) The commission shall collect information
40-16 relating to current cellular telephone services and rates. The
40-17 commission by rule shall specify the information to be collected.
40-18 (b) A provider of cellular telephone services shall provide
40-19 to the commission, in the form and at the time required by the
40-20 commission, the information specified in the commission's rules.
40-21 (c) The commission may receive, monitor, and attempt to
40-22 resolve complaints relating to cellular telephone service or rates.
40-23 (d) This section does not give the commission the authority
40-24 to regulate in any way cellular services or rates.
40-25 (e) This section expires August 31, 1995.
40-26 Sec. 91B. (a) The lieutenant governor and speaker of the
40-27 house of representatives shall appoint a joint interim committee to
40-28 study state telecommunications regulatory policy and utility tax
40-29 policy.
40-30 (b) Members of the committee serve without compensation. If
40-31 a member of the legislature is appointed, the legislative member is
40-32 entitled to reimbursement for expenses from the member's house to
40-33 the same extent as for other legislative duties. Other members are
40-34 entitled to reimbursement for expenses from funds appropriated to
40-35 the commission to the same extent as state employees would be
40-36 reimbursed under the General Appropriations Act. Expenses of
40-37 cooperating and support agencies and offices, including the cost of
40-38 staff provided under Subsection (f) or (g) of this section, shall
40-39 be borne by those agencies.
40-40 (c) The joint committee shall study:
40-41 (1) state telecommunications regulatory policy with
40-42 specific attention to matters prescribed by the lieutenant governor
40-43 and speaker of the house of representatives; and
40-44 (2) tax issues, including investment tax credits,
40-45 accelerated depreciation, consolidated returns, affiliates, and
40-46 disallowances, for all utilities, including gas and electric
40-47 utilities.
40-48 (d) In addition to the duties prescribed by Subsection (c)
40-49 of this section, the committee shall supervise the commission in
40-50 the collection of information on current cellular telephone
40-51 services and rates as prescribed by Section 91A of this Act.
40-52 (e) The joint committee shall develop a report that analyzes
40-53 the state's telecommunications regulatory policy, utility tax
40-54 policies, and the cellular telephone information collected by the
40-55 commission and that includes specific policy options and
40-56 recommended rule or statutory changes to implement the policy
40-57 options. The joint committee may make preliminary reports but
40-58 shall make a final report not later than November 1, 1994.
40-59 (f) On request of the committee, the commission, the office,
40-60 the Texas Legislative Council, the governor's office, the senate,
40-61 and the house of representatives shall provide staff as necessary
40-62 to carry out the duties of the joint committee.
40-63 (g) If necessary to the discharge of its duties, the joint
40-64 committee may request the assistance of a state agency, department,
40-65 or office. The agency, department, or office shall provide the
40-66 requested assistance.
40-67 (h) The committee is abolished on the date it issues its
40-68 final report under Subsection (e) of this section.
40-69 (i) This section expires August 31, 1995.
40-70 SECTION 7.02. (a) Effective September 1, 1995, Subsection
41-1 (c), Section 3, Public Utility Regulatory Act (Article 1446c,
41-2 Vernon's Texas Civil Statutes), is amended to read as follows:
41-3 (c) The term "public utility" or "utility," when used in
41-4 this Act, includes any person, corporation, river authority,
41-5 cooperative corporation, or any combination thereof, other than a
41-6 municipal corporation <or a water supply or sewer service
41-7 corporation>, or their lessees, trustees, and receivers, now or
41-8 hereafter owning or operating for compensation in this state
41-9 equipment or facilities for:
41-10 (1) producing, generating, transmitting, distributing,
41-11 selling, or furnishing electricity ("electric utilities"
41-12 hereinafter) provided, however, that this definition shall not be
41-13 construed to apply to or include a qualifying small power producer
41-14 or qualifying cogenerator, as defined in Sections 3(17)(D) and
41-15 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
41-16 796(17)(D) and 796(18)(C));
41-17 (2)<(A) the conveyance, transmission, or reception of
41-18 communications over a telephone system as a dominant carrier as
41-19 hereinafter defined ("telecommunications utilities" hereinafter);
41-20 provided that no person or corporation not otherwise a public
41-21 utility within the meaning of this Act shall be deemed such solely
41-22 because of the furnishing or furnishing and maintenance of a
41-23 private system or the manufacture, distribution, installation, or
41-24 maintenance of customer premise communications equipment and
41-25 accessories; and provided further that nothing in this Act shall be
41-26 construed to apply to telegraph services, television stations,
41-27 radio stations, community antenna television services, or
41-28 radio-telephone services that may be authorized under the Public
41-29 Mobile Radio Services rules of the Federal Communications
41-30 Commission, other than such radio-telephone services provided by
41-31 wire-line telephone companies under the Domestic Public Land Mobile
41-32 Radio Service and Rural Radio Service rules of the Federal
41-33 Communications Commission; and provided further that interexchange
41-34 telecommunications carriers (including resellers of interexchange
41-35 telecommunications services), specialized communications common
41-36 carriers, other resellers of communications, other communications
41-37 carriers who convey, transmit, or receive communications in whole
41-38 or in part over a telephone system, and providers of operator
41-39 services as defined in Section 18A(a) of this Act (except that
41-40 subscribers to customer-owned pay telephone service shall not be
41-41 deemed to be telecommunications utilities) who are not dominant
41-42 carriers are also telecommunications utilities, but the
41-43 commission's regulatory authority as to them is only as hereinafter
41-44 defined;>
41-45 <(B) "dominant carrier" when used in this Act
41-46 means (i) a provider of any particular communication service which
41-47 is provided in whole or in part over a telephone system who as to
41-48 such service has sufficient market power in a telecommunications
41-49 market as determined by the commission to enable such provider to
41-50 control prices in a manner adverse to the public interest for such
41-51 service in such market; and (ii) any provider of local exchange
41-52 telephone service within a certificated exchange area as to such
41-53 service. A telecommunications market shall be statewide until
41-54 January 1, 1985. After this date the commission may, if it
41-55 determines that the public interest will be served, establish
41-56 separate markets within the state. Prior to January 1, 1985, the
41-57 commission shall hold such hearings and require such evidence as is
41-58 necessary to carry out the public purpose of this Act and to
41-59 determine the need and effect of establishing separate markets.
41-60 Any such provider determined to be a dominant carrier as to a
41-61 particular telecommunications service in a market shall not be
41-62 presumed to be a dominant carrier of a different telecommunications
41-63 service in that market.>
41-64 <(3)> The term "public utility" or "utility" shall not
41-65 include any person or corporation not otherwise a public utility
41-66 that furnishes the services or commodity described in any paragraph
41-67 of this subsection only to itself, its employees, or tenants as an
41-68 incident of such employee service or tenancy, when such service or
41-69 commodity is not resold to or used by others. The term "electric
41-70 utility" shall not include any person or corporation not otherwise
42-1 a public utility that owns or operates in this state equipment or
42-2 facilities for producing, generating, transmitting, distributing,
42-3 selling, or furnishing electric energy to an electric utility, if
42-4 the equipment or facilities are used primarily for the production
42-5 and generation of electric energy for consumption by the person or
42-6 corporation. The term "public utility," "utility," or "electric
42-7 utility" shall not include any person or corporation not otherwise
42-8 a public utility that owns or operates in this state a recreational
42-9 vehicle park that provides metered electric service in accordance
42-10 with Article 1446d-2, Revised Statutes. A recreational vehicle
42-11 park owner is considered a public utility if the owner fails to
42-12 comply with Article 1446d-2, Revised Statutes, with regard to the
42-13 metered sale of electricity at the recreational vehicle park.
42-14 (b) The following provisions of the Public Utility
42-15 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes) are
42-16 repealed effective September 1, 1995:
42-17 (1) Section 18;
42-18 (2) Subsection (i), Section 43;
42-19 (3) Section 43A;
42-20 (4) Section 43B;
42-21 (5) Section 43C;
42-22 (6) Section 61;
42-23 (7) Section 93;
42-24 (8) Section 93B;
42-25 (9) Article XIV; and
42-26 (10) Article XV.
42-27 SECTION 7.03. The method of calculating income taxes and the
42-28 treatment of federal income tax expenses and savings for ratemaking
42-29 purposes for public utilities shall be the same as the method
42-30 adopted by the Public Utility Commission of Texas in commission
42-31 rate orders signed and dated between September 1, 1988, and
42-32 September 1, 1992.
42-33 SECTION 7.04. Section 7.03 of this Act governs all
42-34 proceedings, orders, judgments, and decrees in rate applications
42-35 pending or subject to or on appeal as of the date of enactment of
42-36 this Act, before any regulatory authority or court, and to all rate
42-37 applications filed until the Legislature of the State of Texas
42-38 takes action on the study required by Section 91B, Public Utility
42-39 Regulatory Act (Article 1446c, Vernon's Texas Civil Statutes), as
42-40 added by Section 7.01 of this Act.
42-41 SECTION 7.05. Article XIII, Public Utility Regulatory Act
42-42 (Article 1446c, Vernon's Texas Civil Statutes), is amended by
42-43 adding Section 93A to read as follows:
42-44 Sec. 93A. (a) The commission shall require each local
42-45 exchange company to establish local toll free service areas that
42-46 conform to this section.
42-47 (b) In any central office area where there has been
42-48 compliance with the petitioning and voting provisions of this
42-49 section, each telephone subscriber shall be entitled to place toll
42-50 free calls to any other subscriber if both subscribers are within a
42-51 required local calling area.
42-52 (c) In any central office area where there has been
42-53 compliance with the petitioning and voting provisions of this
42-54 section, each telephone subscriber shall be entitled to place toll
42-55 free calls to any other subscriber within any area that the
42-56 commission determines to be within one community of interest.
42-57 (d) For the purposes of this section:
42-58 (1) "Central office area" means the territory included
42-59 within the boundaries of an area served by one or more central
42-60 offices.
42-61 (2) "Central office" means the physical site of
42-62 switching equipment for any central office area.
42-63 (3) "Community of interest" includes areas that have a
42-64 relationship because of schools, hospitals, local governments,
42-65 business centers, and other relationships the unavailability of
42-66 which would cause a hardship to the residents of the area, but need
42-67 not include an area where the affected central offices are more
42-68 than 50 miles apart.
42-69 (4) "Required local calling area" includes a central
42-70 office area where any part of the central office area is located
43-1 not more than 32 miles from another central office area's central
43-2 office.
43-3 (e) If the commission receives petitions by the lesser of
43-4 100 or more subscribers within a central office area or 10 percent
43-5 of the subscribers within a central office area, the commission
43-6 shall order the local exchange company to provide for an election
43-7 of the subscribers within that central office area within 90 days
43-8 in order to determine whether to hold a hearing on the issue of
43-9 expanding the local toll free calling area. The election shall be
43-10 held according to rules adopted by the commission and may be held
43-11 by ballots delivered with the local subscriber's monthly telephone
43-12 bill. If there is an affirmative vote by at least 70 percent of
43-13 the subscribers responding, then the commission shall, after
43-14 appropriate notice to all subscribers in the central office area
43-15 and to the Office of Public Utility Counsel and a hearing on the
43-16 merits, determine whether a required local calling area or a
43-17 community of interest exists. An administrative determination
43-18 under this subsection must be completed within 90 days after the
43-19 election results are tabulated.
43-20 (f) Each local exchange company shall submit its plan to
43-21 establish toll free calling areas under this section not later than
43-22 the 90th day after the commission determines that a required local
43-23 calling area or a community of interest exists and the commission
43-24 must approve or amend the plan within 60 days after receiving it.
43-25 Any affected person may complain of any plan submitted as provided
43-26 in Section 43A of this Act. The local exchange company must
43-27 implement the plan not later than the 90th day after commission
43-28 approval.
43-29 (g) The commission and a local exchange company are not
43-30 required to comply with this section with regard to a specific
43-31 proposed area if:
43-32 (1) the commission determines that there has been a
43-33 good and sufficient showing of a geographic or technological
43-34 infeasibility to serve the area;
43-35 (2) the local exchange company has less than 10,000
43-36 lines and can prove exceptional circumstances that would cause
43-37 undue hardship as a result of its size; or
43-38 (3) the area is in an existing extended metropolitan
43-39 service area.
43-40 (h) To compensate a local exchange company for any lost
43-41 revenues caused by compliance with this section, the commission may
43-42 allow the local exchange company to establish a fixed monthly per
43-43 line fee to be paid by all subscribers within the petitioning
43-44 central office area that obtain a new toll free calling area
43-45 pursuant to this section. This fee may not exceed $3.50 a line for
43-46 residential subscribers and $7 a line for business subscribers and
43-47 may be collected only until the local exchange company's next
43-48 general rate case, at which time the costs and revenues associated
43-49 with providing the service shall be considered as if the boundaries
43-50 of the territories had not changed. A fee established under this
43-51 section must be approved by the commission after adequate notice
43-52 and hearing on the merits and may not exceed an amount determined
43-53 by the commission to compensate the local exchange company for the
43-54 actual loss of revenue due to the implementation of this section.
43-55 If the fee established fails to compensate the local exchange
43-56 company and the local exchange company is able to demonstrate a
43-57 hardship, as defined by the commission, the local exchange company
43-58 is entitled to recover sufficient lost revenues to eliminate the
43-59 hardship from the universal service fund established by this Act.
43-60 A hearing under this subsection may be combined with the hearing
43-61 required in Subsection (e) of this section. The commission may, in
43-62 order to promote the wide dispersion of pay telephones, either
43-63 exempt such telephones from the provisions of this section or
43-64 change the rates to be charged from such telephones in an amount
43-65 sufficient to promote this goal.
43-66 (i) The governing body of any municipality shall have the
43-67 right to participate in any proceeding before the commission or any
43-68 court under this section and shall be reimbursed by the public
43-69 utility as provided in Subsection (a) of Section 24 of this Act
43-70 without subscribers being surcharged. The local exchange carrier
44-1 shall recover such reasonable expenses in its next rate proceeding.
44-2 ARTICLE 8
44-3 SECTION 8.01. Section 1, Chapter 556, Acts of the 68th
44-4 Legislature, Regular Session, 1983 (Article 9021, Vernon's Texas
44-5 Civil Statutes), is amended by amending Subdivision (1) and adding
44-6 Subdivisions (3) and (4) to read as follows:
44-7 (1) "Equipment" means a line, wire, cable, pipe,
44-8 conduit, conductor, pole, or other facility for transmission of
44-9 community antenna or cable television service or for the provision
44-10 of telecommunications service.
44-11 (3) "Telecommunications common carrier" means a person
44-12 who provides telecommunications service.
44-13 (4) "Telecommunications service" means the electronic
44-14 or optical transmission of information between separate points by a
44-15 prearranged means.
44-16 SECTION 8.02. Section 2, Chapter 556, Acts of the 68th
44-17 Legislature, Regular Session, 1983 (Article 9021, Vernon's Texas
44-18 Civil Statutes), is amended to read as follows:
44-19 Sec. 2. Installation and Maintenance. In any unincorporated
44-20 area in the state, a person in the business of providing community
44-21 antenna or cable television service to the public or of operating
44-22 as a telecommunications common carrier may install and maintain
44-23 equipment through, under, along, across, and over a utility
44-24 easement, a public road, an alley, or a body of public water in the
44-25 state, in accordance with this Act.
44-26 SECTION 8.03. (a) A building owner, building manager, or
44-27 tenant that allows building access to a telecommunications common
44-28 carrier or telecommunications utility for the installation and
44-29 maintenance of telecommunications equipment shall allow building
44-30 access for that purpose to all telecommunications common carriers
44-31 on a nondiscriminatory basis and with reasonable terms and
44-32 conditions.
44-33 (b) A landlord, building owner, or building manager may not
44-34 discriminate between tenants in a rental charge or otherwise on the
44-35 basis that a particular telecommunications carrier is serving or is
44-36 not serving a tenant.
44-37 (c) In this section:
44-38 (1) "Telecommunications common carrier" means a person
44-39 who provides telecommunications service.
44-40 (2) "Telecommunications service" means the electronic
44-41 or optical transmission of information between separate points by a
44-42 prearranged means.
44-43 ARTICLE 9
44-44 SECTION 9.01. Section 112, Public Utility Regulatory Act
44-45 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
44-46 as follows:
44-47 Sec. 112. This article does not apply to the use of an ADAD
44-48 to make a telephone call:
44-49 (1) relating to an emergency or a public service under
44-50 a program developed or approved by the emergency management
44-51 coordinator of the county in which the call was received; <or>
44-52 (2) made by a public or private primary or secondary
44-53 school system to locate or account for a truant student;
44-54 (3) in response to the express request of the
44-55 consumer;
44-56 (4) primarily in connection with an existing debt or
44-57 contract for which payment or performance has not been completed at
44-58 the time of the call; or
44-59 (5) to a consumer with whom the telephone solicitor
44-60 has a prior or existing business relationship.
44-61 ARTICLE 10
44-62 SECTION 10.01. Except as otherwise provided by this Act,
44-63 this Act takes effect September 1, 1993.
44-64 SECTION 10.02. The importance of this legislation and the
44-65 crowded condition of the calendars in both houses create an
44-66 emergency and an imperative public necessity that the
44-67 constitutional rule requiring bills to be read on three several
44-68 days in each house be suspended, and this rule is hereby suspended,
44-69 and that this Act take effect and be in force according to its
44-70 terms, and it is so enacted.
45-1 * * * * *
45-2 Austin,
45-3 Texas
45-4 April 16, 1993
45-5 Hon. Bob Bullock
45-6 President of the Senate
45-7 Sir:
45-8 We, your Committee on Economic Development to which was referred
45-9 S.B. No. 498, have had the same under consideration, and I am
45-10 instructed to report it back to the Senate with the recommendation
45-11 that it do not pass, but that the Committee Substitute adopted in
45-12 lieu thereof do pass and be printed.
45-13 Parker,
45-14 Chairman
45-15 * * * * *
45-16 WITNESSES
45-17 FOR AGAINST ON
45-18 ___________________________________________________________________
45-19 Name: Mark E. Krebs x
45-20 Representing: SUEPASCO
45-21 City: Austin
45-22 -------------------------------------------------------------------
45-23 Name: Campbell McGinnis x
45-24 Representing: Tx Electric Cooperative, Inc.
45-25 City: Austin
45-26 -------------------------------------------------------------------
45-27 Name: Jim Morriss x
45-28 Representing: Tx Electric Cooperatives, Inc.
45-29 City: Austin
45-30 -------------------------------------------------------------------
45-31 Name: Jonathan Day x
45-32 Representing: Tx Industrial Energy Consumer
45-33 City: Houston
45-34 -------------------------------------------------------------------
45-35 Name: Rosa Diaz-Chavez x
45-36 Representing: ACT/IAF
45-37 City: Ft. Worth
45-38 -------------------------------------------------------------------
45-39 Name: Michael Osborne x
45-40 Representing: Texas Renewable Energy
45-41 City: Austin
45-42 -------------------------------------------------------------------
45-43 FOR AGAINST ON
45-44 ___________________________________________________________________
45-45 Name: Mike Williams x
45-46 Representing: Texas Public Power Assn.
45-47 City: Austin
45-48 -------------------------------------------------------------------
45-49 Name: Tom Anson x
45-50 Representing: Competitive Energy Options
45-51 City: Austin
45-52 -------------------------------------------------------------------
45-53 Name: Kent Caperton x
45-54 Representing: AECT
45-55 City: Austin
45-56 -------------------------------------------------------------------
45-57 Name: Tom Standish x
45-58 Representing: AECT
45-59 City: Houston
45-60 -------------------------------------------------------------------
45-61 Name: Nolan Ward x
45-62 Representing: Public Utility Comm of Tx
45-63 City: Austin
45-64 -------------------------------------------------------------------
45-65 Name: Karl R. Rabago x
45-66 Representing: Public Utility Comm. of Texas
45-67 City: Austin
45-68 -------------------------------------------------------------------
45-69 Name: Robert W. Gee x
45-70 Representing: Public Utility Comm. of Texas
46-1 City: Austin
46-2 -------------------------------------------------------------------
46-3 Name: Robert J. King x
46-4 Representing: U.S. Windpower, Inc.
46-5 City: Austin
46-6 -------------------------------------------------------------------
46-7 Name: Dale Osborn x
46-8 Representing: U.S. Windpower
46-9 City: Moraga, CA
46-10 -------------------------------------------------------------------
46-11 Name: Alfred R. Herrera x
46-12 Representing: MCI Telecommunications Corp.
46-13 City: Austin
46-14 -------------------------------------------------------------------
46-15 Name: Don Cook x
46-16 Representing: Tx General Land Office
46-17 City: Austin
46-18 -------------------------------------------------------------------
46-19 Name: Bob McFarland x
46-20 Representing: Arlington, Euless, Grapevine
46-21 &
46-22 City: Irving in Austin
46-23 -------------------------------------------------------------------
46-24 Name: Tom Smith x
46-25 Representing: Public Citizen
46-26 City: Austin
46-27 -------------------------------------------------------------------
46-28 Name: John Hildreth x
46-29 Representing: Consumers Union
46-30 City: Austin
46-31 -------------------------------------------------------------------
46-32 Name: Clinton P. White x
46-33 Representing: Texasgulf Inc.
46-34 City: Wharton
46-35 -------------------------------------------------------------------
46-36 Name: Jim Marston x
46-37 Representing: EOF
46-38 City: Austin
46-39 -------------------------------------------------------------------
46-40 Name: Robert Reilley x
46-41 Representing: Enron Power Corp.
46-42 City: Austin
46-43 -------------------------------------------------------------------
46-44 FOR AGAINST ON
46-45 ___________________________________________________________________
46-46 Name: Luis A. Wilmot x
46-47 Representing: OPUC
46-48 City: Austin
46-49 -------------------------------------------------------------------
46-50 Name: Hayward Rigano x
46-51 Representing: Titus Co. Citizens, Endangered
46-52 City: Paris
46-53 -------------------------------------------------------------------
46-54 Name: Gene Teague x
46-55 Representing: Teague Ind. Inc.
46-56 City: Richardson
46-57 -------------------------------------------------------------------
46-58 Name: Roy Ray x
46-59 Representing: AARP
46-60 City: Austin
46-61 -------------------------------------------------------------------
46-62 Name: Dr. Jan Hamrin x
46-63 Representing: Hansen, McQuat & Hamrin, Inc.
46-64 City: San Francisco, CA
46-65 -------------------------------------------------------------------
46-66 Name: Maxie Templeton x
46-67 Representing: Self
46-68 City: Austin
46-69 -------------------------------------------------------------------
46-70 Name: Alan Kaniss x
47-1 Representing: Texas Payphone Assn.
47-2 City: Houston
47-3 -------------------------------------------------------------------
47-4 Name: Jerry James x
47-5 Representing: Texaltel/LDDS
47-6 City: Austin
47-7 -------------------------------------------------------------------
47-8 Name: Roger Kintzel x
47-9 Representing: Tx Daily Newspaper Assn.
47-10 City: Austin
47-11 -------------------------------------------------------------------
47-12 Name: Roy J. Eaton x
47-13 Representing: Texas Press Association
47-14 City: Decatur, Tx
47-15 -------------------------------------------------------------------
47-16 Name: Jane Wallace x
47-17 Representing: Tx Assoc. of Broadcasters
47-18 City: Austin
47-19 -------------------------------------------------------------------
47-20 Name: Joe Jerkins x
47-21 Representing: Tx Assoc. of Broadcasters
47-22 City: Austin
47-23 -------------------------------------------------------------------
47-24 Name: Ann Arnold x
47-25 Representing: Tx Assoc. of Broadcasters
47-26 City: Austin
47-27 -------------------------------------------------------------------
47-28 Name: Pat Belinowski x
47-29 Representing: Tx Commun/Expanded Local Call
47-30 City: Ladonia
47-31 -------------------------------------------------------------------
47-32 Name: Diana Fleming x
47-33 Representing: Tx Commun/Expanded Local Call
47-34 City: Point, Tx
47-35 -------------------------------------------------------------------
47-36 Name: Carla Sue McCroan x
47-37 Representing: Tx Commun/Expanded Local Call
47-38 City: Josephine, Tx
47-39 -------------------------------------------------------------------
47-40 Name: Tom Jones x
47-41 Representing: Tx Telephone Assoc.
47-42 City: Austin
47-43 -------------------------------------------------------------------
47-44 FOR AGAINST ON
47-45 ___________________________________________________________________
47-46 Name: Mike Estman, Pres. GTE x
47-47 Representing: GTE/TTA
47-48 City: Irving
47-49 -------------------------------------------------------------------
47-50 Name: Bill Dreyer x
47-51 Representing: Southwestern Bell/TTA
47-52 City: Dallas
47-53 -------------------------------------------------------------------
47-54 Name: Jim White, Pres. XIT Tel. x
47-55 Representing: XIT Telephone/TTA
47-56 City: Dalhart
47-57 -------------------------------------------------------------------
47-58 Name: Susan G. Hadden x
47-59 Representing: Self (LBJ School of Pub Aff)
47-60 City: Austin
47-61 -------------------------------------------------------------------
47-62 Name: Tom Reiff x
47-63 Representing: H&C Communications
47-64 City: Houston
47-65 -------------------------------------------------------------------
47-66 Name: David A. Cole x
47-67 Representing: Southwestern Bell
47-68 City: Austin
47-69 -------------------------------------------------------------------
47-70 Name: Michael Bauer x
48-1 Representing: Texas Telephone Association
48-2 City: Austin
48-3 -------------------------------------------------------------------
48-4 Name: Don R. Richards x
48-5 Representing: Tx Statewide Telephone Co-ops
48-6 City: Lubbock
48-7 -------------------------------------------------------------------
48-8 Name: Dennis Thomas x
48-9 Representing: Southwestern Bell
48-10 City: Austin
48-11 -------------------------------------------------------------------
48-12 Name: William D. Arnold x
48-13 Representing: Texas Cable TV Assoc.
48-14 City: Austin
48-15 -------------------------------------------------------------------
48-16 Name: Carmen Dempsey x
48-17 Representing: CWA Union
48-18 City: Austin
48-19 -------------------------------------------------------------------
48-20 Name: Bob Rowland x
48-21 Representing: Capital Network System, Inc.
48-22 City: Austin
48-23 -------------------------------------------------------------------
48-24 Name: D. L. Dally Willis x
48-25 Representing: CWA Union
48-26 City: Midland
48-27 -------------------------------------------------------------------
48-28 Name: Albert S. Bowles x
48-29 Representing: TTA
48-30 City: Austin
48-31 -------------------------------------------------------------------
48-32 Name: Elizabeth Little x
48-33 Representing: AARP
48-34 City: Austin
48-35 -------------------------------------------------------------------
48-36 Name: William G. Mundy x
48-37 Representing: GTE
48-38 City: Irving
48-39 -------------------------------------------------------------------
48-40 Name: Steve Martin x
48-41 Representing: St. Office of Admin. Hearings
48-42 City: Austin
48-43 -------------------------------------------------------------------
48-44 FOR AGAINST ON
48-45 ___________________________________________________________________
48-46 Name: Don Cook x
48-47 Representing: TX GLO
48-48 City: Austin
48-49 -------------------------------------------------------------------
48-50 Name: Walt McGee x
48-51 Representing: Centex Telemanagement
48-52 City: Oakland, CA
48-53 -------------------------------------------------------------------
48-54 Name: Pres Sheppard x
48-55 Representing: AT&T
48-56 City: Austin
48-57 -------------------------------------------------------------------
48-58 Name: Brian L. Hocker x
48-59 Representing: KXAS-TV
48-60 City: Ft. Worth
48-61 -------------------------------------------------------------------
48-62 Name: Sano Riley Blocker x
48-63 Representing: EDS
48-64 City: Dallas
48-65 -------------------------------------------------------------------
48-66 Name: Dennis Goehring x
48-67 Representing: Tx Payphone Assoc.
48-68 City: Bryan
48-69 -------------------------------------------------------------------
48-70 Name: Robert C. Atkinson x
49-1 Representing: Teleport Commun/Hous. & Dallas
49-2 City: Houston
49-3 -------------------------------------------------------------------
49-4 Name: Roy Minton x
49-5 Representing: Teleport Commun/Hou - Dallas
49-6 City: Austin
49-7 -------------------------------------------------------------------
49-8 Name: Tim Curtis x
49-9 Representing: Texas Citizen Action
49-10 City: Austin
49-11 -------------------------------------------------------------------
49-12 Name: Philip Rickett x
49-13 Representing: MFS Telecom, Inc.
49-14 City: Austin
49-15 -------------------------------------------------------------------
49-16 Name: Marta Greytok x
49-17 Representing: Public Utility Commission
49-18 City: Austin
49-19 -------------------------------------------------------------------