By Danburg H.B. No. 3159
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to continuation, operations, and functions of the Public
1-3 Utility Commission of Texas and the Office of Public Utility
1-4 Counsel; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1. Section 1 of the Public Utility Regulatory Act
1-8 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
1-9 as follows:
1-10 Sec. 1. Short Title. This Act may be referred to as the
1-11 "Public Utility Regulatory Act."
1-12 SECTION 2. Section 2 of the Public Utility Regulatory Act
1-13 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
1-14 as follows:
1-15 Sec. 2. Legislative Policy and Purpose. This Act is enacted
1-16 to protect the public interest inherent in the rates and services
1-17 of public utilities. The legislature finds that public utilities
1-18 <are> have been by definition monopolies in the areas they serve;
1-19 that therefore the normal forces of competition which operate to
1-20 regulate prices in a free enterprise society <do not operate> have
1-21 been restrained; that it is necessary and appropriate to introduce
1-22 elements of competition to increase customer access to the
1-23 lowest-cost utility services; and that therefore utility rates,
2-1 operations and services <are> should be regulated by public
2-2 agencies, but with the objective that such regulation shall
2-3 <operate as a substitute for such> encourage competition when it is
2-4 in the public interest. The purpose of this Act is to establish a
2-5 comprehensive regulatory system which is adequate to the task of
2-6 regulating public utilities as defined by this Act, to assure
2-7 rates, operations, and services which are just and reasonable to
2-8 the consumers and to the utilities.
2-9 SECTION 3. Section 3 of the Public Utility Regulatory Act
2-10 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
2-11 as follows:
2-12 Sec. 3. Definitions. (a) The term "person," when used in
2-13 this Act, includes natural persons, partnerships of two or more
2-14 persons having a joint or common interest, mutual or cooperative
2-15 associations, <water supply or sewer service corporations,> and
2-16 corporations, as herein defined.
2-17 (b) The term "municipality," when used in this Act, includes
2-18 cities and incorporated villages or towns existing, created, or
2-19 organized under the general, home-rule, or special laws of the
2-20 state.
2-21 (c) The term "public utility" or "utility," when used in
2-22 this Act, includes any person, corporation, river authority,
2-23 cooperative corporation, or any combination thereof, other than a
2-24 municipal corporation <or a water supply or sewer service
2-25 corporation>, or their lessees, trustees, and receivers, now or
3-1 hereafter <owning or operating for compensation in this state
3-2 equipment or facilities for:>
3-3 (1) producing, generating, transmitting, distributing,
3-4 selling or furnishing electricity ("electric utilities"
3-5 hereinafter) provided, however, that this definition shall not be
3-6 construed to apply to or include a qualifying small power producer
3-7 or qualifying cogenerator, as defined in Sections 3(17)(D) and
3-8 3(18)(C) of the Federal Power Act, as amended (16 U.S.C. Sections
3-9 796(17)(D) and 796(18)(C), an Exempt Wholesale Generator, as
3-10 defined in Section 32(a)(1) of the Public Utility Holding Company
3-11 Act of 1935, as amended (15 U.S.C. Section 79 and following), or a
3-12 Power Marketer, which is defined for the purposes of this Act as
3-13 any person that takes ownership of electric energy in this state
3-14 for the purpose of selling such electric energy at wholesale but
3-15 does not own generation, transmission, or distribution facilities
3-16 in this state and does not have a certificated service area; and
3-17 provided further that Exempt Wholesale Generators and Power
3-18 Marketers may sell electric energy in this state only at wholesale.
3-19 (2)(A) owning or operating for compensation in this
3-20 state equipment or facilities for the conveyance, transmission, or
3-21 reception of communications over a telephone system as a dominant
3-22 carrier as hereinafter defined ("telecommunications utilities"
3-23 hereinafter); provided that no person or corporation not otherwise
3-24 a public utility within the meaning of this Act shall be deemed
3-25 such solely because of the furnishing or furnishing and maintenance
4-1 of a private system or the manufacture, distribution, installation,
4-2 or maintenance of customer premise communications equipment and
4-3 accessories; and provided further that nothing in this Act shall be
4-4 construed to apply to telegraph services, television stations,
4-5 radio stations, community antenna television services, or
4-6 radio-telephone services that may be authorized under the Public
4-7 Mobile Radio Services rules of the Federal Communications
4-8 Commission, other than such radio-telephone services provided by
4-9 wire-line telephone companies under the Domestic Public Land Mobile
4-10 Radio Service and Rural Radio Service rules of the Federal
4-11 Communications Commission; and provided further that interexchange
4-12 telecommunications carriers (including resellers of interexchange
4-13 telecommunications services), specialized communications common
4-14 carriers, other resellers of communications, other communications
4-15 carriers who convey, transmit, or receive communications in whole
4-16 or in part over a telephone system, and providers of operator
4-17 services as defined in Section 18A(a) of this Act (except that
4-18 subscribers to customer-owned pay telephone service shall not be
4-19 deemed to be telecommunications utilities) are also
4-20 telecommunications utilities, but the commission's regulatory
4-21 authority as to them is only as hereinafter defined;
4-22 (B) No change.
4-23 (3) The term "public utility" or "utility" shall not
4-24 include any person or corporation not otherwise a public utility
4-25 that furnishes the services or commodity described in any paragraph
5-1 of this subsection only to itself, its employees, or tenants as an
5-2 incident of such employee service or tenancy, when such service or
5-3 commodity is not resold to or used by others. The term "electric
5-4 utility" shall not include any person or corporation not otherwise
5-5 a public utility that owns or operates in this state equipment or
5-6 facilities for producing, generating, transmitting, distributing,
5-7 selling, or furnishing electric energy to an electric utility, if
5-8 the equipment or facilities are used primarily for the production
5-9 and generation of electric energy for consumption by the person or
5-10 corporation. The term "public utility," "utility," or "electric
5-11 utility" shall not include any person or corporation not otherwise
5-12 a public utility that owns or operates in this state a recreational
5-13 vehicle park that provides metered electric service in accordance
5-14 with Article 1446d-2, Revised Statutes. A recreational vehicle
5-15 park owner is considered a public utility if the owner fails to
5-16 comply with Article 1446d-2, Revised Statutes, with regard to the
5-17 metered sale of electricity at the recreational vehicle park.
5-18 (d) The term "rate," when used in this Act, means and
5-19 includes every compensation, tariff, charge, fare, toll, rental,
5-20 and classification, or any of them demanded, observed, charged, or
5-21 collected whether directly or indirectly by any public utility for
5-22 any service, product, or commodity described in Subdivision (c) of
5-23 this section, and any rules, regulations, practices, or contracts
5-24 affecting any such compensation, tariff, charge, fare, toll,
5-25 rental, or classification.
6-1 (e) The word "commission," when used in this Act, means the
6-2 Public Utility Commission of Texas, as hereinafter constituted.
6-3 (f) Repealed by Acts 1983, 68th Leg., p. 1222, ch. 263, Sec.
6-4 25, eff. Sept. 1, 1983.
6-5 (g) The term "regulatory authority," when used in this Act,
6-6 means, in accordance with the context where it is found, either the
6-7 commission or the governing body of any municipality.
6-8 (h) "Affected person" means any public utility affected by
6-9 any action of the regulatory authority, any person or corporation
6-10 whose utility service or rates are affected by any proceeding
6-11 before the regulatory authority, or any person or corporation that
6-12 is a competitor of a public utility with respect to any service
6-13 performed by the utility or that desires to enter into competition.
6-14 (i) "Affiliated interest" or "affiliate" means:
6-15 (1) any person or corporation owning or holding,
6-16 directly or indirectly, five percent or more of the voting
6-17 securities of a public utility;
6-18 (2) any person or corporation in any chain of
6-19 successive ownership of five percent or more of the voting
6-20 securities of a public utility;
6-21 (3) any corporation five percent or more of the voting
6-22 securities of which is owned or controlled, directly or indirectly,
6-23 by a public utility;
6-24 (4) any corporation five percent or more of the voting
6-25 securities of which is owned or controlled, directly or indirectly,
7-1 by any person or corporation that owns or controls, directly or
7-2 indirectly, five percent or more of the voting securities of any
7-3 public utility or by any person or corporation in any chain of
7-4 successive ownership of five percent of such securities;
7-5 (5) any person who is an officer or director of a
7-6 public utility or of any corporation in any chain of successive
7-7 ownership of five percent or more of voting securities of a public
7-8 utility;
7-9 (6) any person or corporation that the commission,
7-10 after notice and hearing, determines actually exercises any
7-11 substantial influence or control over the policies and actions of a
7-12 public utility, or over which a public utility exercises such
7-13 control, or that is under common control with a public utility,
7-14 such control being the possession, directly or indirectly, of the
7-15 power to direct or cause the direction of the management and
7-16 policies of another, whether such power is established through
7-17 ownership or voting of securities or by any other direct or
7-18 indirect means; or
7-19 (7) any person or corporation that the commission
7-20 after notice and hearing determines is actually exercising such
7-21 substantial influence over the policies and action of the public
7-22 utility in conjunction with one or more persons or corporations
7-23 with which they are related by ownership or blood relationship, or
7-24 by action in concert, that together they are affiliated with such
7-25 public utility within the meaning of this section, even though no
8-1 one of them alone is so affiliated.
8-2 (j) "Allocations" means, for all utilities, the division of
8-3 plant, revenues, expenses, taxes, and reserves between
8-4 municipalities or between municipalities and unincorporated areas,
8-5 where such items are used for providing public utility service in a
8-6 municipality, or for a municipality and unincorporated areas.
8-7 (k) "Commissioner" means a member of the Public Utility
8-8 Commission of Texas.
8-9 (l) "Cooperative corporation" means any telephone or
8-10 electric cooperative corporation organized and operating under the
8-11 Telephone Cooperative Act (Article 1528c, Vernon's Texas Civil
8-12 Statutes) or the Electric Cooperative Corporation Act (Article
8-13 1528b, Vernon's Texas Civil Statutes).
8-14 (m) "Corporation" means any corporation, joint-stock
8-15 company, or association, domestic or foreign, and its lessees,
8-16 assignees, trustees, receivers, or other successors in interest,
8-17 having any of the powers or privileges of corporations not
8-18 possessed by individuals or partnerships, but shall not include
8-19 municipal corporations unless expressly provided otherwise in this
8-20 Act.
8-21 (n) "Facilities" means all the plant and equipment of a
8-22 public utility, including all tangible and intangible real and
8-23 personal property without limitation, and any and all means and
8-24 instrumentalities in any manner owned, operated, leased, licensed,
8-25 used, controlled, furnished, or supplied for, by, or in connection
9-1 with the business of any public utility.
9-2 (o) "Municipally-owned utility" means any utility owned,
9-3 operated, and controlled by a municipality or by a nonprofit
9-4 corporation whose directors are appointed by one or more
9-5 municipalities.
9-6 (p) "Order" means the whole or a part of the final
9-7 disposition, whether affirmative, negative, injunctive, or
9-8 declaratory in form, of the regulatory authority in a matter other
9-9 than rulemaking, but including issuance of certificates of
9-10 convenience and necessity and ratesetting.
9-11 (q) "Proceeding" means any hearing, investigation, inquiry,
9-12 or other fact-finding or decision-making procedure under this Act
9-13 and includes the denial of relief or the dismissal of a complaint.
9-14 (r) "Separation" means, for communications utilities only,
9-15 the division of plant, revenues, expenses, taxes, and reserves,
9-16 applicable to exchange or local service where such items are used
9-17 in common for providing public utility service to both local
9-18 exchange service and other service, such as interstate or
9-19 intrastate toll service.
9-20 (s) "Service" is used in this Act in its broadest and most
9-21 inclusive sense, and includes any and all acts done, rendered, or
9-22 performed and any and all things furnished or supplied, and any and
9-23 all facilities used, furnished, or supplied by public utilities in
9-24 the performance of their duties under this Act to their patrons,
9-25 employees, other public utilities, and the public, as well as the
10-1 interchange of facilities between two or more of them. Service
10-2 shall not include the printing, distribution, or sale of
10-3 advertising in telephone directories.
10-4 (t) "Test year" means the most recent 12 months for which
10-5 operating data for a public utility are available and shall
10-6 commence with a calendar quarter or a fiscal year quarter.
10-7 <(u) "Water supply or sewer service corporation" means a
10-8 nonprofit, member-owned corporation organized and operating under
10-9 Chapter 76, Acts of the 43rd Legislature, 1st Called Session, 1933,
10-10 as amended (Article 1434a, Vernon's Texas Civil Statutes).>
10-11 (u) <(v)> "Local exchange company" means a
10-12 telecommunications utility certificated to provide local exchange
10-13 service within the state.
10-14 SECTION 4. Section 4 of the Public Utility Regulatory Act
10-15 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
10-16 as follows:
10-17 Sec. 4. Applicability of Administrative Procedure Act <and
10-18 Texas Register Act>. The Administrative Procedure Act <and Texas
10-19 Register Act> applies to all proceedings under this Act except to
10-20 the extent inconsistent with this Act. Communications of members
10-21 and employees of the commission with a party, a party's
10-22 representative, or other persons are governed by Section 17 of that
10-23 Act.
10-24 ARTICLE II. ORGANIZATION OF COMMISSION; OFFICE OF
10-25 PUBLIC UTILITY COUNSEL
11-1 SECTION 5. Section 5 of the Public Utility Regulatory Act
11-2 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
11-3 as follows:
11-4 Sec. 5. Creation of Commission; Appointment and Terms;
11-5 Chairman. A commission, to be known as the "Public Utility
11-6 Commission of Texas" is hereby created. It shall consist of three
11-7 commissioners, who shall be appointed to staggered, six-year terms
11-8 by the governor, with the advice and consent of two-thirds of the
11-9 members of the senate present, and who shall have and exercise the
11-10 jurisdiction and powers herein conferred upon the commission. Each
11-11 commissioner shall hold office until his successor is appointed and
11-12 qualified. The governor shall designate a member of the commission
11-13 as the chairman of the commission to serve in that capacity at the
11-14 pleasure of the governor. <At its first meeting following the
11-15 biennial appointment and qualification of a commissioner, the
11-16 commission shall elect one of the commissioners chairman.>
11-17 Appointments to the commission shall be made without regard to the
11-18 race, color, handicap, <creed>, sex, religion, age, or national
11-19 origin of the appointees.
11-20 SECTION 6. Section 5a of the Public Utility Regulatory Act
11-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
11-22 as follows:
11-23 Sec. 5a. Sunset Provision. The Public Utility Commission of
11-24 Texas and the Office of Public Utility Counsel are subject to
11-25 Chapter 325, Government Code (Texas Sunset Act). Unless continued
12-1 in existence as provided by that chapter, the commission and the
12-2 office <Office of the Public Utility Counsel> are abolished and
12-3 this Act expires September 1, 2001 <1995>.
12-4 SECTION 7. Section 6 of the Public Utility Regulatory Act
12-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
12-6 as follows:
12-7 Sec. 6. Qualifications; Oath and Bond; Prohibited
12-8 Activities. (a) To be eligible for appointment as a commissioner,
12-9 a person must be a qualified voter<, not less than 30 years of
12-10 age>, a citizen of the United States, and a resident of the State
12-11 of Texas. No person is eligible for appointment as a commissioner
12-12 if at any time during the two-year period immediately preceding his
12-13 appointment he personally served as an officer, director, owner,
12-14 employee, partner, or legal representative of any public utility
12-15 <or> any affiliated interest, or any utility competitor, he owned
12-16 or controlled, directly or indirectly, stocks or bonds of any class
12-17 with a value of $10,000, or more in a public utility <or> any
12-18 affiliated interest, or utility competitor. Each commissioner
12-19 shall qualify for office by taking the oath prescribed for other
12-20 state officers and shall execute a bond for $5,000 payable to the
12-21 state and conditioned on the faithful performance of his duties.
12-22 A person may not serve as a member of the commission or act as the
12-23 general counsel to the commission if the person is required to
12-24 register as a lobbyist under Chapter 305, Government Code, and its
12-25 subsequent amendments, because of the person's activities for
13-1 compensation on behalf of a profession related to the operation of
13-2 the commission <who is required to register as a lobbyist under
13-3 Chapter 305, Government Code, may not serve as a member of the
13-4 commission or public utility counsel or act as the general counsel
13-5 to the commission>.
13-6 (b) No commissioner or employee of the commission may do any
13-7 of the following during his period of service with the commission:
13-8 (1) have any pecuniary interest, either as an officer,
13-9 director, partner, owner, employee, attorney, consultant, or
13-10 otherwise, in any public utility or affiliated interest, or in any
13-11 person or corporation or other business entity a significant
13-12 portion of whose business consists of furnishing goods or services
13-13 to public utilities or affiliated interests, but not including a
13-14 nonprofit group or association solely supported by gratuitous
13-15 contributions of money, property or services, other than a trade
13-16 association as defined by Subsection (n) of this Section;
13-17 (2) own or control any securities in a public utility
13-18 or affiliated interest, either directly or indirectly;
13-19 (3) accept any gift, gratuity, or entertainment
13-20 whatsoever from any public utility or affiliated interest, or from
13-21 any person, corporation, agent, representative, employee, or other
13-22 business entity a significant portion of whose business consists of
13-23 furnishing goods or services to public utilities or affiliated
13-24 interests, or from any agent, representative, attorney, employee,
13-25 officer, owner, director, or partner of any such business entity or
14-1 of any public utility or affiliated interest; provided, however,
14-2 that the receipt and acceptance of any gifts, gratuities, or
14-3 entertainment after termination of service with the commission
14-4 whose cumulative value in any one-year period is less than $100
14-5 shall not constitute a violation of this Act.
14-6 (c)-(f) No change.
14-7 (g) A person is not eligible for appointment as a public
14-8 member of the commission or for employment as the general counsel
14-9 or executive director of the commission if:
14-10 (1) the person serves on the board of directors of a
14-11 company that supplies fuel, utility-related services, or
14-12 utility-related products to regulated or unregulated electric or
14-13 telecommunications utilities; or
14-14 (2) the person or the person's spouse:
14-15 (A) is employed by or participates in the
14-16 management of a business entity or other organization regulated by
14-17 the commission or receiving funds from the commission;
14-18 (B) owns or controls, directly or indirectly,
14-19 more than a 10 percent interest or a pecuniary interest with a
14-20 value exceeding $10,000 in:
14-21 (i) a business entity or other
14-22 organization regulated by the commission or receiving funds from
14-23 the commission; or
14-24 (ii) any utility competitor, utility
14-25 supplier, or other entity affected by a commission decision in a
15-1 manner other than by the setting of rates for that class of
15-2 customer;
15-3 (C) uses or receives a substantial amount of
15-4 tangible goods, services, or funds from the commission, other than
15-5 compensation or reimbursement authorized by law for commission
15-6 membership, attendance, or expenses; or
15-7 (D) notwithstanding Paragraph (B) of this
15-8 subdivision, has an interest in a mutual fund or retirement fund in
15-9 which more than 10 percent of the fund's holdings at the time of
15-10 appointment is in a single utility, utility competitor, or utility
15-11 supplier in this state and the person does not disclose this
15-12 information to the governor, senate, commission, or other entity as
15-13 appropriate.
15-14 (i) No commissioner shall within two
15-15 years, and no employee shall, within one year after his employment
15-16 or service with the commission has ceased;
15-17 (1) <;> be employed by a public utility which was in
15-18 the scope of the commissioner's or employee's official
15-19 responsibility while the commissioner or employee was associated
15-20 with the commission; or
15-21 (2) be employed by a utility competitor, utility
15-22 supplier, or other entity affected in a manner other than by the
15-23 setting of rates for that class of customer.
15-24 (j) No change.
15-25 (k) The commission shall provide to <require> its members
16-1 and employees, <to read this section and> as often as necessary,
16-2 <shall provide> information regarding their qualification for
16-3 office or employment under this Act and their responsibilities
16-4 under applicable laws relating to standards of conduct for state
16-5 officers or <and> employees.
16-6 (l) An officer, employee, or paid consultant of a trade
16-7 association in the field of public utilities may not be a member or
16-8 employee of the commission who is exempt from the state's position
16-9 classification plan or is compensated at or above the amount
16-10 prescribed by the General Appropriations Act for step 1, salary
16-11 group 17, of the position classification salary schedule.
16-12 (m) A person who is a spouse of an officer, manager, or paid
16-13 consultant of a trade association in the field of public utilities
16-14 may not be a commission member and may not be a commission employee
16-15 who is exempt from the state's position classification plan or is
16-16 compensated at or above the amount prescribed by the General
16-17 Appropriations Act for step 1, salary group 17, of the position
16-18 classification salary schedule.
16-19 (n) For the purposes of this section, a trade association is
16-20 a nonprofit, cooperative, and voluntarily joined association of
16-21 business or professional persons who are employed by public
16-22 utilities or utility competitors to assist the public utility
16-23 industry, a utility competitor, or the industry's or competitor's
16-24 employees in dealing with mutual business or professional problems
16-25 and in promoting their common interest.
17-1 (o) In this Act, an entity or utility supplier is considered
17-2 to be affected in a manner other than by the setting of rates for
17-3 that class of customer if during a relevant calendar year the
17-4 entity provides fuel, utility-related goods, utility-related
17-5 products, or utility-related services to a regulated or unregulated
17-6 provider of telecommunications or electric services or to an
17-7 affiliated interest in an amount equal to the greater of $10,000 or
17-8 10 percent of the person's business.
17-9 (p) Notwithstanding any other provision of this Act, a
17-10 person otherwise ineligible because of the application of Paragraph
17-11 (B) of Subdivision (2) of Subsection (g) of this section may be
17-12 appointed to the commission and serve as a commissioner or may be
17-13 employed as the general counsel or executive director if the
17-14 person:
17-15 (1) notifies the attorney general and commission that
17-16 the person is ineligible because of the application of Paragraph
17-17 (B) of Subdivision (2) of Subsection (g) of this section; and
17-18 (2) divests the person or the person's spouse of the
17-19 ownership or control before beginning service or employment, or
17-20 within a reasonable time if the person is already serving or
17-21 employed at the time Paragraph (B) of Subdivision (2) of Subsection
17-22 (g) of this section first applies to the person.
17-23 SECTION 8. Section 6a of the Public Utility Regulatory Act
17-24 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
17-25 as follows:
18-1 Sec. 6A. Grounds for Removal; Validity of Actions. (a) It
18-2 is a ground for removal from the commission if a member:
18-3 (1) does not have at the time of appointment the
18-4 qualifications required by Section 6 of this Act; <for appointment
18-5 to the commission; or>
18-6 (2) does not maintain during <the> service on the
18-7 commission the qualifications required by Section 6 of this Act;
18-8 (3) violates a prohibition established by Section 6 of
18-9 this Act;
18-10 (4) cannot discharge the member's duties for a
18-11 substantial part of the term for which the member is appointed
18-12 because of illness or disability; or
18-13 (5) is absent from more than half of the regularly
18-14 scheduled commission meetings that the member is eligible to attend
18-15 during a calendar year unless the absence is excused by majority
18-16 vote of the commission <for appointment to the commission>.
18-17 (b) The validity of an action of the commission is not
18-18 affected by the fact that it is <was> taken when a ground for
18-19 removal of a <member of the> commission member exists <existed>.
18-20 (c) If the executive director has knowledge that a potential
18-21 ground for removal exists, the executive director shall notify the
18-22 governor and the attorney general that a potential ground for
18-23 removal exists.
18-24 SECTION 9. Section 8 of the Public Utility Regulatory Act
18-25 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
19-1 as follows:
19-2 Sec. 8. Employees. (a) The commission shall employ an
19-3 executive director, a general counsel, and such officers<,
19-4 administrative law judges, hearing examiners, investigators,
19-5 lawyers, engineers, economists, consultants, statisticians,
19-6 accountants, administrative assistants, inspectors, clerical
19-7 staff,> and other employees as it deems necessary to carry out the
19-8 provisions of this Act. All employees receive such compensation as
19-9 is fixed by the legislature. The commission shall develop and
19-10 implement policies that clearly define the respective
19-11 responsibilities of the commission and the staff of the commission.
19-12 (b) The commission shall employ the following:
19-13 (1) an executive director who is responsible for the
19-14 day-to-day operations of the agency and shall coordinate the
19-15 activities of commission employees;
19-16 (2) a director of hearings who has wide experience in
19-17 utility regulation and rate determination; and
19-18 (3) <a chief engineer who is a registered engineer and
19-19 an expert in public utility engineering and rate matters;>
19-20 <(4) a chief accountant who is a certified public
19-21 accountant, experienced in public utility accounting;>
19-22 <(5) a director of research who is experienced in the
19-23 conduct of analyses of industry, economics, energy, fuel, and other
19-24 related matters that the commission may want to undertake;>
19-25 <(6) a director of consumer affairs and public
20-1 information;>
20-2 <(7) a director of utility evaluation;>
20-3 <(8) a director of energy conservation; and>
20-4 <(9)> a general counsel.
20-5 (c)-(d) No change.
20-6 (e) The executive director or the executive director's <his>
20-7 designee shall develop an intra-agency <intraagency> career ladder
20-8 program. The program shall require intra-agency posting of all
20-9 non-entry-level positions concurrently with any public posting<,
20-10 one part of which shall be the intraagency posting of all nonentry
20-11 level positions for at least 10 days before any public posting>.
20-12 The executive director or the executive director's <his> designee
20-13 shall develop a system of annual performance evaluations <based on
20-14 measurable job tasks>. All merit pay for commission employees must
20-15 be based on the system established under this section.
20-16 (f) The executive director or the executive director's
20-17 <his/her> designee shall prepare and maintain a written policy
20-18 statement <plan> to assure implementation of a program of equal
20-19 employment opportunity under which <whereby> all personnel
20-20 transactions are made without regard to race, color, handicap
20-21 <disability>, sex, religion, age, or national origin. The policy
20-22 statement must <plans shall> include:
20-23 (1) personnel policies, including policies relating to
20-24 recruitment, evaluation, selection, appointment, training, and
20-25 promotion of personnel <a comprehensive analysis of all the
21-1 agency's work force by race, sex, ethnic origin, class of position,
21-2 and salary or wage>;
21-3 (2) a comprehensive analysis of the commission work
21-4 force that meets federal and state guidelines <plans for
21-5 recruitment, evaluation, selection, appointment, training,
21-6 promotion, and other personnel policies>;
21-7 (3) procedures by which a determination can be made of
21-8 significant underutilization in the commission work force of all
21-9 persons for whom federal or state guidelines encourage a more
21-10 equitable balance <steps reasonably designed to overcome any
21-11 identified underutilization of minorities and women in the agency's
21-12 work force>; and
21-13 (4) reasonable methods to address those areas of
21-14 significant underutilization appropriately.
21-15 (g) A policy statement prepared under Subsection (e) of this
21-16 section must <objectives and goals, timetables for the achievement
21-17 of the objectives and goals, and assignments of responsibility for
21-18 their achievement.>
21-19 <The plans shall be filed with the governor's office within
21-20 60 days of the effective date of this Act,> cover an annual period,
21-21 <and> be updated at least annually, and be filed with the
21-22 governor's office and the Commission on Human Rights.
21-23 (h) The governor's office shall deliver a biennial report to
21-24 the legislature based on the information received under Subsection
21-25 (f) of this section. The report may be made separately or as a
22-1 part of other biennial reports made to the legislature<. Progress
22-2 reports shall be submitted to the governor's office within 30 days
22-3 of November 1 and April 1 of each year and shall include the steps
22-4 the agency has taken within the reporting period to comply with
22-5 these requirements>.
22-6 SECTION 10. Section 10 of the Public Utility Regulatory Act
22-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
22-8 as follows:
22-9 Sec. 10. Office; Meetings. (a) The principal office of the
22-10 commission shall be located in the City of Austin, Texas, and shall
22-11 be open daily during the usual business hours, Saturdays, Sundays,
22-12 and legal holidays excepted. The commission shall hold meetings at
22-13 its office and at such other convenient places in the state as
22-14 shall be expedient and necessary for the proper performance of its
22-15 duties.
22-16 (b) The commission shall develop and implement policies that
22-17 provide the public with a reasonable opportunity to appear before
22-18 the commission and to speak on any issue under the jurisdiction of
22-19 the commission.
22-20 SECTION 11. Section 14 of the Public Utility Regulatory Act
22-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
22-22 as follows:
22-23 Sec. 14. Annual Report. (a) The commission shall file
22-24 annually with the governor and the presiding officer of each house
22-25 of the legislature a complete and detailed written report
23-1 accounting for all funds received and disbursed by the commission
23-2 during the preceding fiscal year. The annual report must be in the
23-3 form and reported in the time provided by the General
23-4 Appropriations Act <publish an annual report to the governor,
23-5 summarizing its proceedings, listing its receipts and the sources
23-6 of its receipts, listing its expenditures and the nature of such
23-7 expenditures, and setting forth such other information concerning
23-8 the operations of the commission and the public utility industry as
23-9 it considers of general interest>.
23-10 SECTION 12. Section 14A of the Public Utility Regulatory Act
23-11 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
23-12 as follows:
23-13 Sec. 14A. Consumer Information. (a) The commission shall
23-14 prepare information of public <consumer> interest describing the
23-15 <regulatory> functions of the commission and <describing> the
23-16 commission's procedures by which <consumer> complaints are filed
23-17 with and resolved by the commission. The commission shall make the
23-18 information available to the <general> public and appropriate state
23-19 agencies.
23-20 (b) The commission by rule shall establish methods by which
23-21 consumers and service recipients are notified of the name, mailing
23-22 address, and telephone number of the commission for the purpose of
23-23 directing complaints to the commission.
23-24 (c) The commission shall prepare and maintain a written plan
23-25 that describes how a person who does not speak English can be
24-1 provided reasonable access to the commission's programs. The
24-2 commission shall also comply with federal and state laws for
24-3 program and facility accessibility.
24-4 SECTION 13. Section 15A of the Public Utility Regulatory Act
24-5 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
24-6 as follows:
24-7 Sec. 15A. Office of Public Utility Counsel. (a) The
24-8 independent Office of Public Utility Counsel is hereby established
24-9 to represent the interests of residential and small commercial
24-10 consumers.
24-11 (b) The chief executive of the office <Office of Public
24-12 Utility Counsel> is the public utility counsel, hereinafter
24-13 referred to as counsellor. The counsellor is appointed by the
24-14 governor with the advice and consent of the senate to a two-year
24-15 term that expires on February 1 of the final year of the term.
24-16 Appointment of the public utility counsel shall be made without
24-17 regard to the race, color, handicap, sex, religion, age, or
24-18 national origin of the appointee <Immediately after this section
24-19 takes effect, the governor shall, with the advice and consent of
24-20 the senate, appoint the public utility counsel>.
24-21 (c) The counsellor may employ such lawyers, economists,
24-22 engineers, consultants, statisticians, accountants, clerical staff,
24-23 and other employees as he or she deems necessary to carry out the
24-24 provisions of this section. All employees shall receive such
24-25 compensation as is fixed by the legislature from the assessment
25-1 imposed by Section 78 of this Act. The public utility counsel or
25-2 the counsellor's designee shall develop an intra-agency career
25-3 ladder program. The program shall require intra-agency postings of
25-4 all non-entry-level positions concurrently with any public posting.
25-5 The public utility counsel or the counsellor's designee shall
25-6 develop a system of annual performance evaluations. All merit pay
25-7 for office employees must be based on the system established under
25-8 this subsection. The office shall provide to the public utility
25-9 counsel and its employees, as often as necessary, information
25-10 regarding their qualification for office or employment under this
25-11 Act and their responsibilities under applicable laws relating to
25-12 standards of conduct for state officers or employees.
25-13 (d) The counsellor shall be a resident of Texas and admitted
25-14 to the practice of law in this state who has demonstrated a strong
25-15 commitment and involvement in efforts to safeguard the rights of
25-16 the public and possesses the knowledge and experience necessary to
25-17 practice effectively in utility proceedings. A person is not
25-18 eligible for appointment as public utility counsel if the person or
25-19 the person's spouse:
25-20 (1) is employed by or participates in the management
25-21 of a business entity or other organization regulated by the
25-22 commission or receiving funds from the commission;
25-23 (2) owns or controls, directly or indirectly, more
25-24 than a 10 percent interest or a pecuniary interest with a value
25-25 exceeding $10,000 in:
26-1 (A) a business entity or other organization
26-2 regulated by the commission or receiving funds from the commission
26-3 or the office; or
26-4 (B) any utility competitor, utility supplier, or
26-5 other entity affected by a commission decision in a manner other
26-6 than by the setting of rates for that class of customer;
26-7 (3) uses or receives a substantial amount of tangible
26-8 goods, services, or funds from the commission or the office, other
26-9 than compensation or reimbursement authorized by law for counsellor
26-10 or commission membership, attendance, or expenses; or
26-11 (4) notwithstanding Subdivision (2) of this
26-12 subsection, has an interest in a mutual fund or retirement fund in
26-13 which more than 10 percent of the fund's holdings is in a single
26-14 utility, utility competitor, or utility supplier in this state and
26-15 the person does not disclose this information to the governor,
26-16 senate, or other entity, as appropriate.
26-17 (e) A person may not serve as counsellor or act as the
26-18 general counsel for the office if the person is required to
26-19 register as a lobbyist under Chapter 305, Government Code, because
26-20 of the person's activities for compensation related to the
26-21 operation of the commission or the office.
26-22 (f) An officer, employee, or paid consultant of a trade
26-23 association in the field of public utilities may not serve as
26-24 counsellor or be an employee of the office who is exempt from the
26-25 state's position classification plan or is compensated at or above
27-1 the amount prescribed by the General Appropriations Act for step 1,
27-2 salary group 17, of the position classification salary schedule. A
27-3 person who is the spouse of an officer, manager, or paid consultant
27-4 of a trade association in the field of public utilities may not
27-5 serve as counsellor and may not be an office employee who is exempt
27-6 from the state's position classification plan or is compensated at
27-7 or above the amount prescribed by the General Appropriations Act
27-8 for step 1, salary group 17, of the position classification salary
27-9 schedule. For the purposes of this subsection, a trade association
27-10 is a nonprofit, cooperative, and voluntarily joined association of
27-11 business or professional persons who are employed by public
27-12 utilities or utility competitors to assist the public utility
27-13 industry, a utility competitor, or the industry's or competitor's
27-14 employees in dealing with mutual business or professional problems
27-15 and in promoting their common interest.
27-16 (g) Notwithstanding any other provision of this Act, a
27-17 person otherwise ineligible because of the application of
27-18 Subdivision (2) of Subsection (d) of this section may be appointed
27-19 as counsellor and may serve as counsellor if the person:
27-20 (1) notifies the attorney general and commission that
27-21 the person is ineligible because of the application of Subdivision
27-22 (2) of Subsection (d) of this section; and
27-23 (2) divests the person or the person's spouse of the
27-24 ownership or control before appointment, or within a reasonable
27-25 time if the person is already serving at the time Subdivision (2)
28-1 of Subsection (d) of this section first applies to the person.
28-2 (h) During the period of the counsellor's employment and for
28-3 a period of two years following the termination of employment, it
28-4 shall be unlawful for any person employed as counsellor to have a
28-5 direct or indirect interest in any utility company regulated under
28-6 the Public Utility Regulatory Act, to provide legal services
28-7 directly or indirectly to or be employed in any capacity by a
28-8 utility company regulated under the Public Utility Regulatory Act,
28-9 its parent, or its subsidiary companies, corporations, or
28-10 cooperatives or a utility competitor, utility supplier, or other
28-11 entity affected in a manner other than by the setting of rates for
28-12 that class of customer; but such person may otherwise engage in the
28-13 private practice of law after the termination of employment as the
28-14 counsellor. It is a ground for removal from office if the
28-15 counsellor:
28-16 (1) does not have at the time of appointment the
28-17 qualifications required by this section;
28-18 (2) does not maintain during service as counsellor the
28-19 qualifications required by this section;
28-20 (3) violates a prohibition established by this
28-21 section; or
28-22 (4) cannot discharge the counsellor's duties for a
28-23 substantial part of the term for which the counsellor is appointed
28-24 because of illness or disability.
28-25 (i) The validity of an action of the office is not affected
29-1 by the fact that it is taken when a ground for removal of the
29-2 counsellor exists.
29-3 (j) The office shall file annually with the governor and the
29-4 presiding officer of each house of the legislature a complete and
29-5 detailed written report accounting for all funds received and
29-6 disbursed by the office during the preceding fiscal year. The
29-7 annual report must be in the form and reported in the time provided
29-8 by the General Appropriations Act.
29-9 (k) The office shall prepare information of public interest
29-10 describing the functions of the office. The office shall make the
29-11 information available to the public and appropriate state agencies.
29-12 (l) The counsellor or the counsellor's designee shall
29-13 prepare and maintain a written policy statement to assure
29-14 implementation of a program of equal employment opportunity under
29-15 which all personnel transactions are made without regard to race,
29-16 color, handicap, sex, religion, age, or national origin. The
29-17 policy statement must include:
29-18 (1) personnel policies, including policies relating to
29-19 recruitment, evaluation, selection, appointment, training, and
29-20 promotion of personnel;
29-21 (2) a comprehensive analysis of the office work force
29-22 that meets federal and state guidelines;
29-23 (3) procedures by which a determination can be made of
29-24 significant underutilization in the office work force of all
29-25 persons for whom federal or state guidelines encourage a more
30-1 equitable balance; and
30-2 (4) reasonable methods to address those areas of
30-3 significant underutilization appropriately.
30-4 (m) A policy statement prepared under Subsection (l) of this
30-5 section must cover an annual period, be updated at least annually,
30-6 and be filed with the governor's office and the Commission on Human
30-7 Rights. The governor's office shall deliver a biennial report to
30-8 the legislature based on the information received under this
30-9 subsection. The report may be made separately or as a part of
30-10 other biennial reports made to the legislature.
30-11 (n) The office shall prepare and maintain a written plan
30-12 that describes how a person who does not speak English can be
30-13 provided reasonable access to the office's programs. The office
30-14 shall also comply with federal and state laws for program and
30-15 facility accessibility.
30-16 (o) In this section, an entity or utility supplier is
30-17 considered to be affected in a manner other than by the setting of
30-18 rates for that class of customer if during a relevant calendar year
30-19 the entity provides fuel, utility-related goods, utility-related
30-20 products, or utility-related services to a regulated or unregulated
30-21 provider of telecommunications or electric services or to an
30-22 affiliated interest in an amount equal to the lesser of $10,000 or
30-23 10 percent of the person's business.
30-24 Sec. 15B. (a)<(f)> THE OFFICE OF PUBLIC UTILITY COUNSEL:
30-25 (1) shall assess the impact of utility rate changes
31-1 and other regulatory actions on residential consumers in the State
31-2 of Texas and shall be an advocate in its own name of positions most
31-3 advantageous to a substantial number of such consumers as
31-4 determined by the counsellor;
31-5 (2) shall <may> appear or intervene as a matter of
31-6 right as a party or otherwise on behalf of residential consumers,
31-7 as a class, in all proceedings before the commission;
31-8 (3) may appear or intervene as a matter of right as a
31-9 party or otherwise on behalf of small commercial consumers, as a
31-10 class, in all proceedings where it is deemed by the counsel that
31-11 small commercial consumers are in need of representation;<.>
31-12 (4) may initiate or intervene as a matter of right or
31-13 otherwise appear in any judicial proceedings involving or arising
31-14 out of any action taken by an administrative agency in a proceeding
31-15 in which the counsel was authorized to appear;
31-16 (5) may have access as any party, other than staff, to
31-17 all records gathered by the commission under the authority of
31-18 Subsection (a) of Section 29 of this Act;
31-19 (6) may obtain discovery of any nonprivileged matter
31-20 which is relevant to the subject matter involved in any proceeding
31-21 or petition before the commission;
31-22 (7) may represent individual residential and small
31-23 commercial consumers with respect to their disputed complaints
31-24 concerning utility services unresolved before the commission; and
31-25 (8) may recommend legislation to the legislature which
32-1 in its judgment would positively affect the interests of
32-2 residential and small commercial consumers.
32-3 (b<g>) Nothing in this section shall be construed as in any
32-4 way limiting the authority of the commission to represent
32-5 residential or small commercial consumers.
32-6 (c<h>) The appearance of the Public Counsel in any proceeding
32-7 in no way precludes the appearance of other parties on behalf of
32-8 residential ratepayers or small commercial consumers. The Public
32-9 Counsel shall not be grouped with any other parties.
32-10 (d<i>) There shall be only one Office of Public Utility
32-11 Counsel even though that office may be referenced in one or more
32-12 Acts of the 68th Legislature.
32-13 ARTICLE III. JURISDICTION
32-14 SECTION 14. Section 16 of the Public Utility Regulatory Act
32-15 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
32-16 as follows:
32-17 Sec. 16. General Power; Rules; Hearings; Statewide and
32-18 Utility Electrical Energy Forecasts; Reports; Audits. (a) No
32-19 change.
32-20 (b) <The commission shall develop a long-term statewide
32-21 electrical energy forecast which shall be sent to the governor
32-22 biennially. The forecast will include an assessment of how
32-23 alternative energy sources, conservation, and load management will
32-24 meet the state's electricity needs.>
32-25 <(c) Every generating electric utility in the state shall
33-1 prepare and transmit to the commission by December 31, 1983, and
33-2 every two years thereafter a report specifying at least a 10-year
33-3 forecast for assessments of load and resources for its service
33-4 area. The report shall include a list of facilities which will be
33-5 required to supply electric power during the forecast periods. The
33-6 report shall be in a form prescribed by the commission. The report
33-7 shall include:>
33-8 <(1) a tabulation of estimated peak load, resources,
33-9 and reserve margins for each year during the forecast or assessment
33-10 period;>
33-11 <(2) a list of existing electric generating plants in
33-12 service with a description of planned and potential generating
33-13 capacity at existing sites;>
33-14 <(3) a list of facilities which will be needed to
33-15 serve additional electrical requirements identified in the
33-16 forecasts or assessments, the general location of such facilities,
33-17 and the anticipated types of fuel to be utilized in the proposed
33-18 facilities, including an estimation of shutdown costs and disposal
33-19 of spent fuel for nuclear power plants;>
33-20 <(4) a description of additional system capacity which
33-21 might be achieved through, among other things, improvements in (A)
33-22 generating or transmission efficiency, (B) importation of power,
33-23 (C) interstate or interregional pooling, (D) other improvements in
33-24 efficiencies of operation; and (E) conservation measures;>
33-25 <(5) an estimation of the mix and type of fuel
34-1 resources for the forecast or assessment period;>
34-2 <(6) an annual load duration curve and a forecast of
34-3 anticipated peak loads for the forecast or assessment period for
34-4 the residential, commercial, industrial, and such other major
34-5 demand sectors in the service area of the electric utility as the
34-6 commission shall determine; and>
34-7 <(7) a description of projected population growth,
34-8 urban development, industrial expansion, and other growth factors
34-9 influencing increased demand for electric energy and the basis for
34-10 such projections.>
34-11 <(d) The commission shall establish and every electric
34-12 utility shall utilize a reporting methodology for preparation of
34-13 the forecasts of future load and resources.>
34-14 <(e) The commission shall review and evaluate the electric
34-15 utilities' forecast of load and resources and any public comment on
34-16 population growth estimates prepared by Bureau of Business
34-17 Research, University of Texas at Austin.>
34-18 <(f) Within 12 months after the receipt of the reports
34-19 required in Subsection (b) of this section, the commission shall
34-20 hold a public hearing and subsequently issue a final report to the
34-21 governor and notify every electric utility of the commission's
34-22 electric forecast for that utility. The commission shall consider
34-23 its electric forecast in all certification proceedings covering new
34-24 generation plant.>
34-25 <(g)> The commission shall make and enforce rules to
35-1 encourage the economical production of electric energy by
35-2 qualifying cogenerators and qualifying small power producers.
35-3 (c<h>) The commission shall inquire into the management of the
35-4 business of all public utilities under its jurisdiction, shall keep
35-5 itself informed as to the manner and method in which the management
35-6 and business is conducted, and shall obtain from any public utility
35-7 all necessary information to enable the commission to perform
35-8 management audits. The commission may audit each utility under the
35-9 jurisdiction of the commission as frequently as needed, but shall
35-10 audit each utility at least once every 10 years. Six months after
35-11 any audit, the utility shall report to the commission on the status
35-12 of the implementation of the recommendations of the audit and shall
35-13 file subsequent reports at such times as the commission deems
35-14 appropriate.
35-15 Sec. 17. Jurisdiction of Municipality; Surrender; Original
35-16 and Appellate Jurisdiction of Commission. (a) Subject to the
35-17 limitations imposed in this Act, and for the purpose of regulating
35-18 rates and services so that such rates may be fair, just, and
35-19 reasonable, and the services adequate and efficient, the governing
35-20 body of each municipality shall have exclusive original
35-21 jurisdiction over all electric<, water, and sewer> utility rates,
35-22 operations, and services provided by an electric<, water, and
35-23 sewer> utility within its city or town limits.
35-24 (b) At any time after two years have passed from the date
35-25 this Act becomes effective, a municipality may elect to have the
36-1 commission exercise exclusive original jurisdiction over electric<,
36-2 water, or sewer> utility rates, operations, and services within the
36-3 incorporated limits of the municipality. The governing body of a
36-4 municipality may by ordinance elect to surrender its original
36-5 jurisdiction to the commission, or the governing body may submit
36-6 the question of the surrender to the qualified voters at a
36-7 municipal election. Upon receipt of a petition signed by the
36-8 lesser of 20,000 or ten percent of the number of qualified voters
36-9 voting in the last preceding general election in that municipality,
36-10 the governing body shall submit the question of the surrender of
36-11 the municipality's original jurisdiction to the commission at a
36-12 municipal election.
36-13 (c) A municipality that surrenders its jurisdiction to the
36-14 commission may at any time, by vote of the electorate, reinstate
36-15 the jurisdiction of the governing body; provided, however, that any
36-16 municipality which reinstates its jurisdiction shall be unable to
36-17 surrender that jurisdiction for five years after the date of the
36-18 election at which the municipality elected to reinstate its
36-19 jurisdiction. No municipality may, by vote of the electorate,
36-20 reinstate the jurisdiction of the governing body during the
36-21 pendency of any case before the commission involving the
36-22 municipality.
36-23 (d) The commission shall have exclusive appellate
36-24 jurisdiction to review orders or ordinances of such municipalities
36-25 as provided in this Act.
37-1 (e) The commission shall have exclusive original
37-2 jurisdiction over electric<, water, and sewer> utility rates,
37-3 operations, and services not within the incorporated limits of a
37-4 municipality exercising exclusive original jurisdiction over those
37-5 rates, operations, and services as provided in this Act.
37-6 SECTION 15. Section 19 of the Public Utility Regulatory Act
37-7 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
37-8 as follows:
37-9 Sec. 19. (a) The commission by rule shall develop an
37-10 integrated resource planning process to provide reliable energy
37-11 service at the lowest reasonable overall cost. In determining the
37-12 lowest reasonable overall cost of an electric utility's plan, the
37-13 commission shall consider, in addition to direct costs, the
37-14 following:
37-15 (1) the effect on the rates and bills of various types
37-16 of ratepayers;
37-17 (2) minimization of the risks of future fuel costs and
37-18 regulations;
37-19 (3) the appropriateness and reliability of the mix of
37-20 resources; and
37-21 (4) the reasonably quantifiable environmental, social,
37-22 and health costs and benefits accruing to persons other than the
37-23 utility and its ratepayers.
37-24 (b) The commission by rule shall adopt and periodically
37-25 update a statewide integrated resource report every three years
38-1 that includes the commission's long-term resource planning goals.
38-2 The commission shall send the report to the governor when it adopts
38-3 or revises the report and notify each electric utility of the
38-4 approval of the statewide report. The commission shall make the
38-5 report available to the public.
38-6 (c) The report shall include:
38-7 (1) historical data for electric consumption statewide
38-8 and by utility;
38-9 (2) historical data for electric generation by utility
38-10 and by type of capacity, including alternative energy sources;
38-11 (3) an inventory of generation capacity statewide and
38-12 by utility;
38-13 (4) quantitative data on demand-side management
38-14 programs to the extent the commission determines necessary;
38-15 (5) each generating utility's forecast without
38-16 adjustment;
38-17 (6) the commission's long-term resource planning goals
38-18 included in the plan;
38-19 (7) a projection of the need for electric services;
38-20 (8) a description of the approved individual
38-21 integrated resource plans of electric utilities; and
38-22 (9) an assessment of transmission needs.
38-23 (d) In prescribing the requirements under this section,
38-24 including reporting requirements, the commission shall consider and
38-25 recognize the different generating capacities of small and large
39-1 utilities.
39-2 (e) Every three years, a generating electric utility shall
39-3 submit to the commission a preliminary integrated resource plan
39-4 covering a 10-year period. The commission by rule:
39-5 (1) shall:
39-6 (A) prescribe a staggered schedule for the
39-7 submission of plans by utilities;
39-8 (B) prescribe the form and manner in which a
39-9 plan must be submitted;
39-10 (C) adopt filing requirements and schedules;
39-11 (D) prescribe the methods by which a utility may
39-12 recover supply-side and demand-side costs;
39-13 (E) define the scope and nature of public
39-14 participation in the development of the plan; and
39-15 (F) establish the general guidelines to be used
39-16 by utilities in evaluating and selecting or rejecting resources,
39-17 including procedures governing the solicitation process.
39-18 (f) A preliminary plan submitted under this section must
39-19 include:
39-20 (1) the utility's forecast of future demands;
39-21 (2) an estimate of the energy savings and demand
39-22 reduction the utility can achieve during the 10-year period by use
39-23 of demand-side management resources and the range of possible costs
39-24 for those resources;
39-25 (3) if additional supply-side resources are needed to
40-1 meet future demand, an estimate of:
40-2 (A) the amount and operational characteristics
40-3 of the additional capacity needed;
40-4 (B) the types of viable supply-side resources
40-5 for meeting that need;
40-6 (C) the proposed mix of resources with the
40-7 lowest reasonable overall cost considering reliability, fuel
40-8 diversity, impact on bills and rates, and minimization of risk and
40-9 environmental impact; and
40-10 (D) the range of probable costs of those
40-11 resources.
40-12 (4) proposed requests for proposals for demand-side
40-13 resources and, if necessary, supply-side resources;
40-14 (5) the specific criteria the utility will use to
40-15 evaluate and select or reject those resources, which criteria may
40-16 deviate from the general guidelines on a showing of good cause;
40-17 (6) the methods by which the utility intends to
40-18 monitor those resources after selection;
40-19 (7) identification of any transmission constraints
40-20 that may restrict the ability of persons to transmit wholesale
40-21 power to the utility or from the utility's service area; and
40-22 (8) any other information the commission requires.
40-23 (g) After a utility files its preliminary plan, the
40-24 commission on its own motion or on the motion of the utility or of
40-25 an affected person shall convene a public hearing on the adequacy
41-1 and merits of the preliminary plan. At the hearing, any interested
41-2 person may intervene, present evidence, and cross-examine witnesses
41-3 regarding the contents and adequacy of the preliminary plan.
41-4 Discovery is limited to an issue relating to the development of the
41-5 preliminary plan, a fact issue included in the preliminary plan,
41-6 and other issues the commission is required to decide relating to
41-7 the preliminary plan. A commission hearing is not required for a
41-8 preliminary plan filed by a river authority or generating electric
41-9 cooperative that does not intend to build a new generating plant or
41-10 for a preliminary plan filed by a municipally owned electric
41-11 utility.
41-12 (h) After the hearing, the commission shall determine
41-13 whether:
41-14 (1) the utility's preliminary plan is based on
41-15 substantially accurate data and an adequate method of forecasting;
41-16 (2) the preliminary plan identifies and shows how the
41-17 utility will achieve any present and potential reductions in the
41-18 demand for energy that may result from cost-effective measures to
41-19 improve conservation and energy efficiency in various customer
41-20 classes of the area being served;
41-21 (3) if additional supply-side resources are needed to
41-22 meet future demand, the preliminary plan adequately demonstrates:
41-23 (A) the amount and operational characteristics
41-24 of the additional capacity needed;
41-25 (B) the types of viable supply-side resources
42-1 for meeting that need;
42-2 (C) the range of probable costs of those
42-3 resources;
42-4 (D) an appropriate mix of resource options that
42-5 are reliable, diverse, and minimize risk, environmental impact, and
42-6 adverse effects on bills and rates.
42-7 (4) the preliminary plan demonstrates the
42-8 opportunities for appropriate persons to participate in the
42-9 development of the preliminary plan;
42-10 (5) the specific criteria the utility will use to
42-11 evaluate and select or reject resources are reasonable and
42-12 consistent with the guidelines of the integrated resource planning
42-13 process;
42-14 (6) to make recommendations to the utility on the need
42-15 to build new power lines, upgrade power lines, and make other
42-16 improvements and additions as necessary to relieve transmission
42-17 constraints.
42-18 (i) Not later than the 180th day after the date the utility
42-19 files the preliminary plan, the commission shall issue an interim
42-20 order on the preliminary plan. The commission shall approve the
42-21 preliminary plan, modify the preliminary plan, or, if necessary,
42-22 remand the preliminary plan for additional proceedings.
42-23 (j) On approval of the preliminary plan, the utility shall
42-24 conduct solicitations for demand-side and supply-side resources, as
42-25 prescribed in the preliminary plan. In addition to soliciting
43-1 resources from unaffiliated third parties, the utility may:
43-2 (1) prepare and submit a bid of utility demand-side
43-3 management program as prescribed by Subsection (l) of this section;
43-4 (2) receive bids from one or more affiliates; and
43-5 (3) request a certificate of convenience and necessity
43-6 for a new rate-based generating plant.
43-7 (k) Each bidder, including the utility and its affiliates,
43-8 shall submit two copies of its bid to the commission. The
43-9 commission shall ensure that the utility has access to all bids at
43-10 the same time. The commission shall keep a copy of each bid
43-11 submitted by the utility or an affiliate to determine whether the
43-12 utility complied with the criteria established for conduct of the
43-13 solicitation. At its discretion, the commission may retain an
43-14 independent evaluator, to be compensated by means of fees paid by
43-15 the bidders, to determine whether the utility complied with the
43-16 criteria established for conduct of the solicitation. A bid
43-17 submitted under this subsection or retained under this subsection
43-18 is confidential and is not subject to disclosure under the open
43-19 records law, Chapter 552, Government Code.
43-20 (l) If a utility wants to use a proposed demand-side
43-21 management program to meet a need identified in the preliminary
43-22 plan, the utility must prepare a bid reflecting that resource. A
43-23 bid prepared by the utility under this subsection must comply with
43-24 the solicitation, evaluation, selection, and rejection criteria
43-25 specified in the preliminary plan. The utility may not give
44-1 preferential treatment or consideration to a bid prepared under
44-2 this subsection. If a utility anticipates requesting a certificate
44-3 of convenience and necessity for a new rate-based generating plant,
44-4 the utility must submit its estimated capital, operating, and fuel
44-5 costs for the plant to the commission at the same time the bids are
44-6 submitted. The cost estimates may be submitted under seal, and if
44-7 so submitted, are not subject to disclosure under the open records
44-8 law, Chapter 552, Government Code. The cost estimates shall be
44-9 disclosed in any subsequent proceeding in which the utility
44-10 requests a certificate of convenience and necessity for the plant.
44-11 (m) The utility shall evaluate each bid submitted, including
44-12 a bid for a demand-side management program the utility submitted
44-13 under Subsection (l) of this section and an affiliate bid, in
44-14 accordance with the criteria specified in the preliminary plan and
44-15 shall negotiate necessary contracts. Bids for demand-side
44-16 management programs, including those submitted by a utility under
44-17 subsection (l) of this section, shall state the quantifiable demand
44-18 reduction that will be achieved with the program and the method
44-19 that will be used to verify the demand reduction. If the utility
44-20 accepts a bid for a demand-side management program the utility
44-21 submitted under Subsection (l) of this section, the utility shall
44-22 specify in writing that the utility agrees to provide the
44-23 demand-side management program in the same manner and under the
44-24 same terms and conditions the utility would require from a third
44-25 party, unless the utility can demonstrate to the satisfaction of
45-1 the commission that a term or condition should not apply. The
45-2 utility is not required to accept a bid and may reject any or all
45-3 bids in accordance with the selection and rejection criteria
45-4 specified in the preliminary plan. If the results of the
45-5 solicitations and contract negotiations do not meet the supply-side
45-6 needs identified in the preliminary plan, the utility may apply for
45-7 a certificate of convenience and necessity for a utility-owned
45-8 resource addition notwithstanding the fact a solicitation was
45-9 conducted and the addition was not included in the approved
45-10 preliminary plan.
45-11 (n) After conducting the solicitations and negotiating the
45-12 contracts, the utility shall submit to the commission a proposed
45-13 final integrated resource plan. The proposed final plan must
45-14 include:
45-15 (1) the results of the solicitations;
45-16 (2) the contracts for resources;
45-17 (3) the terms and conditions under which the utility
45-18 will provide a demand-side management program to meet a need
45-19 identified in the preliminary plan, if the utility accepts a bid
45-20 submitted under Subsection (l) of this section; and
45-21 (4) an application for a certificate of convenience
45-22 and necessity, if necessary.
45-23 (o) After a utility files its proposed final plan, the
45-24 commission on its own motion or on the motion of the utility or of
45-25 an affected person shall convene a public hearing on the adequacy
46-1 and cost-effectiveness of the proposed final plan. At the hearing,
46-2 any interested person may intervene, present evidence, and
46-3 cross-examine witnesses regarding the contents and adequacy of the
46-4 proposed final plan. Parties will not be allowed to relitigate or
46-5 conduct discovery on issues that have been resolved in the
46-6 commission's interim order on the preliminary plan. A commission
46-7 hearing is not required for a proposed final plan filed by a river
46-8 authority or generating electric cooperative that does not intend
46-9 to build a new generating plant or for a proposed final plan filed
46-10 by a municipally owned electric utility.
46-11 (p) After the hearing, the commission shall determine
46-12 whether:
46-13 (1) the utility's proposed final plan was developed in
46-14 accordance with the preliminary plan and commission rules;
46-15 (2) the resource solicitations, evaluations,
46-16 selections, and rejections were conducted in accordance with the
46-17 criteria included in the preliminary plan;
46-18 (3) the proposed final plan is the resource mix with
46-19 the lowest reasonable overall cost considering reliability, fuel
46-20 diversity, impact on bills and rates, and minimization of risk and
46-21 environmental impact;
46-22 (4) the commission should certify the contracts and
46-23 any utility bids submitted under Subsection (l) of this section
46-24 that resulted from the solicitations; and
46-25 (5) the commission should grant a requested
47-1 certificate of convenience and necessity for a utility-owned
47-2 resource addition.
47-3 (q) In determining whether to certify a contract that
47-4 results from the solicitations, the commission shall consider the
47-5 reliability, financial condition, and safety of that resource
47-6 contract and whether the solicitation, evaluation, and selection of
47-7 that resource contract was conducted in accordance with the
47-8 criteria included in the preliminary plan. Commission
47-9 certification of a resource contract does not negate the necessity
47-10 of the resource to comply with all applicable environmental and
47-11 siting regulations.
47-12 (r) In determining whether to certify a bid for a
47-13 demand-side management program submitted under Subsection (l) of
47-14 this section, the commission, in addition to the determinations
47-15 required under Subsection (q) of this section, shall determine
47-16 whether the utility has agreed in writing to provide the resource
47-17 in the same manner and under the same terms and conditions the
47-18 utility would require from a third party, provided that the
47-19 commission may waive application of a term or condition on a
47-20 showing of good cause.
47-21 (s) In determining whether to grant a requested certificate
47-22 of convenience and necessity, the commission shall consider the
47-23 effect of the granting of a certificate on the recipient of the
47-24 certificate and on any public utility of the same kind already
47-25 serving the proximate area. The commission shall also consider
48-1 other factors such as community values, recreational and park
48-2 areas, historical and aesthetic values, environmental integrity,
48-3 and the probable improvement of service or lowering of cost to
48-4 consumers in that area if the certificate is granted. The
48-5 commission shall grant the certificate as part of the approval of
48-6 the final plan if it finds that:
48-7 (1) the proposed addition is necessary under the final
48-8 plan;
48-9 (2) the proposed addition is the best and most
48-10 economical choice of technology for that service area; and
48-11 (3) cost-effective conservation and other
48-12 cost-effective alternative energy sources cannot reasonably meet
48-13 the need.
48-14 (t) Not later than the 180th day after the date the utility
48-15 files the proposed final plan, the commission shall issue a final
48-16 order on the plan. The commission shall approve the proposed final
48-17 plan, modify the proposed final plan, or, if necessary, remand the
48-18 proposed final plan for additional proceedings.
48-19 (u) Consistent with the objectives of its last-approved
48-20 integrated resource plan, a utility may add new or incremental
48-21 resources outside the solicitation process such as:
48-22 (1) contract renegotiations for existing capacity from
48-23 non-affiliated power generating facilities;
48-24 (2) non-affiliated demand-side management programs or
48-25 renewable resources;
49-1 (3) capacity purchases with terms of two years or less
49-2 from non-affiliated power suppliers or capacity purchases necessary
49-3 to satisfy unanticipated emergency conditions;
49-4 (4) the exercise of an option in a purchase power
49-5 contract with an unaffiliated supplier; or
49-6 (5) renewable distributed resources, located at or
49-7 near the point of consumption, or geographically targeted DSM
49-8 programs, if they are less costly than transmission extensions or
49-9 upgrades.
49-10 (v) In addition to its other authority and responsibility
49-11 under this section, the commission shall establish rules and
49-12 guidelines that will promote the development of renewable energy
49-13 technologies consistent with the guidelines of the integrated
49-14 resource planning process.
49-15 (w) In this section, "utility" includes a municipally owned
49-16 utility.
49-17 (x) The commission may impose limits on the cost of a
49-18 resource addition that may be included in the utility's invested
49-19 capital, for ratemaking purposes, based on the capital, operating,
49-20 and fuel costs relied on by the commission in approving the
49-21 utility's certificate of convenience and necessity. In the event
49-22 the commission imposes a limit on the cost of a resource addition
49-23 pursuant to this subsection, the utility shall not be subject to a
49-24 ratemaking disallowance relating to its expenditures on such
49-25 resource addition up to and including the amount of the cost
50-1 limitation and, if the actual construction cost of the resource
50-2 addition is less than the commission-imposed cost limitation, the
50-3 utility shall be entitled to retain the difference between the
50-4 commission-imposed cost limitation and the actual cost to construct
50-5 the resource addition.
50-6 (y) The commission shall permit utilities to recover costs
50-7 associated with demand-side management programs only as follows:
50-8 (1) Demand-side management costs directly related to
50-9 customer participation and those costs with a useful life shall be
50-10 capitalized and amortized over an appropriate period determined by
50-11 the Commission. A utility shall be permitted to recover and earn a
50-12 return on that investment which is prudently incurred. In making
50-13 this determination, the utility's administration of the demand-side
50-14 management program or contract and the quantifiable, verified,
50-15 cost-effective energy savings that have been achieved shall be
50-16 taken into consideration.
50-17 (2) The commission shall establish a balancing account
50-18 for expenses directly associated with demand-side management
50-19 programs that have been approved in a utility's most recent
50-20 integrated resource plan and have not been capitalized. The
50-21 commission shall assure that the account includes only those costs
50-22 that are in excess of the costs associated with demand-side
50-23 management programs that are already included in a utility's base
50-24 rates. The balancing account shall be reconciled in a utility's
50-25 base rate case and the utility shall be permitted to recover in
51-1 rates only those costs that are reasonable and necessary. In
51-2 making this determination, the utility's administration of the
51-3 demand-side management program or contract and the quantifiable,
51-4 verified, cost-effective energy savings that have been achieved
51-5 shall be taken into consideration.
51-6 (3) Allocation of demand-side management program costs
51-7 shall be determined in the utility's base rate case. Interclass
51-8 and intraclass subsidies shall be eliminated to the extent
51-9 reasonably practical.
51-10 SECTION 16. Section 28 of the Public Utility Regulatory Act
51-11 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
51-12 as follows:
51-13 Sec. 28. POWERS OF COMMISSION. (a) The commission shall
51-14 have the power to:
51-15 (1) require that public utilities report to it such
51-16 information relating to themselves and affiliated interests both
51-17 within and without the State of Texas as it may consider useful in
51-18 the administration of this Act;
51-19 (2) establish forms for all reports;
51-20 (3) determine the time for reports and the frequency
51-21 with which any reports are to be made;
51-22 (4) require that any reports be made under oath;
51-23 (5) require that a copy of any contract or arrangement
51-24 between any public utility and any affiliated interest be filed
51-25 with it. It may require any such contract or arrangement not in
52-1 writing to be reduced to writing and filed with it;
52-2 (6) require that a copy of any report filed with any
52-3 federal agency or any governmental agency or body of any other
52-4 state be filed with it;
52-5 (7) require that a copy of annual reports showing all
52-6 payments of compensation (other than salary or wages subject to the
52-7 withholding of federal income tax) to residents of Texas, or with
52-8 respect to legal, administrative, or legislative matters in Texas,
52-9 or for representation before the Texas Legislature or any
52-10 governmental agency or body; and
52-11 <(8) the railroad commission shall have the power to
52-12 review and approve, for purposes of the Outer Continental Shelf
52-13 Lands Act Amendments of 1978 and any other federal authorities,
52-14 applications by gas utilities for the purchase of natural gas from
52-15 producing affiliates.>
52-16 (b) On the request of the governing body of any
52-17 municipality, the commission may provide sufficient staff members
52-18 to advise and consult with such municipality on any pending matter.
52-19 ARTICLE VI. PROCEEDINGS BEFORE THE REGULATORY AUTHORITY
52-20 SECTION 17. Section 37A of the Public Utility Regulatory Act
52-21 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
52-22 as follows:
52-23 Sec. 37A. (a) An electric cooperative corporation that
52-24 provides retail electric utility service at distribution voltage is
52-25 exempt from rate regulation if a majority of the members voting in
53-1 an election on the deregulation of the electric cooperative vote to
53-2 approve the exemption and the electric cooperative sends notice of
53-3 the action to each applicable regulatory authority. An electric
53-4 cooperative that wants to hold an election under this section shall
53-5 send a ballot by mail to each electric cooperative member. The
53-6 electric cooperative may include the ballot in a monthly billing.
53-7 The ballot shall provide for voting for or against rate
53-8 deregulation of the electric cooperative. If the proposition is
53-9 approved, the electric cooperative shall send each ballot to the
53-10 commission not later than the 10th day after the date the electric
53-11 cooperative counts the ballots. Based on the ballots received, the
53-12 commission shall administratively certify that the electric
53-13 cooperative is or is not deregulated for rate-making purposes. An
53-14 electric cooperative may not hold another election on the issues of
53-15 being exempt from rate regulation before the first anniversary of
53-16 the most recent election on the issue. Subsections (b) through (n)
53-17 of this section apply to an electric cooperative that has elected
53-18 to be exempt from rate regulation.
53-19 (b) No regulatory authority shall fix and regulate the rates
53-20 of an electric cooperative that has made an election under this
53-21 section to be exempt from rate regulation except as provided for
53-22 the commission in Subsections (g) and (i) of this section.
53-23 Notwithstanding Subsection (a) of Section 17 of this Act, the
53-24 commission has exclusive original jurisdiction in all of the
53-25 electric cooperative's service area in a proceeding initiated under
54-1 Subsection (g) or (i) of this section.
54-2 (c) An electric cooperative may change its rates by:
54-3 (1) adopting a resolution approving the proposed
54-4 change;
54-5 (2) mailing notice of the proposed change to:
54-6 (A) the commission;
54-7 (B) each affected municipality;
54-8 (C) each affected customer, which notice may be
54-9 included in a monthly billing; and
54-10 (D) each electric utility providing retail
54-11 service in the electric cooperative's service area or in the
54-12 adjoining service area; and
54-13 (3) making available at each of the electric
54-14 cooperative's business offices for review by all interested persons
54-15 a cost-of-service study that:
54-16 (A) is not more than five years old at the time
54-17 the electric cooperative adopts rates under this subsection; and
54-18 (B) bears the certification of a professional
54-19 engineer or certified public accountant.
54-20 (d)(1) The notice required by Subsection (c) of this section
54-21 must contain the following information:
54-22 (A) the increase or decrease in total operating
54-23 revenues over actual test year revenues or over test year revenues
54-24 adjusted to annualize the recovery of changes in the cost of
54-25 purchased electricity, stated both as a dollar amount and as a
55-1 percentage;
55-2 (B) the classes of utility customers affected
55-3 and the creation and application of any new rate classes;
55-4 (C) the increase or decrease for each class
55-5 stated as a percentage of actual test revenues for the class or of
55-6 test year revenues for the class adjusted to annualize the recovery
55-7 of changes in the cost of purchased electricity;
55-8 (D) a statement that the commission may review
55-9 the rate change if the commission receives a petition in accordance
55-10 with Subsection (g) of this section;
55-11 (E) the address and telephone number of the
55-12 commission;
55-13 (F) a statement that a customer opposed to the
55-14 rate change should notify the electric cooperative in writing of
55-15 the person's opposition and should provide a return address; and
55-16 (G) a statement that members may review a copy
55-17 of any written opposition the electric cooperative receives.
55-18 (2) The electric cooperative may not be required to
55-19 include additional information in the notice.
55-20 (e) The electric cooperative shall make available for review
55-21 by a member of the cooperative at each of the electric
55-22 cooperative's business offices a copy of any written opposition to
55-23 the rate change the electric cooperative receives.
55-24 (f) The electric cooperative shall file tariffs with the
55-25 commission. If the electric cooperative complies with Subsection
56-1 (c) of this section, the commission shall approve the tariffs not
56-2 later than the 10th day after the 60-day period prescribed by
56-3 Subsection (g) of this section expires, unless a review is required
56-4 under Subsection (g) or (i) of this section. If the tariffs are
56-5 approved or if a review is not required and the commission fails to
56-6 act during the period prescribed by this subsection, the change in
56-7 rates takes effect on the 70th day after the date on which the
56-8 electric cooperative first complies with all requirements of
56-9 Subsection (c) of this section or on a later date determined by the
56-10 electric cooperative. Except as provided by Subsections (g) and
56-11 (i) of this section, the rates of the electric cooperative are not
56-12 subject to review.
56-13 (g) The commission shall review a change in rates under this
56-14 section if, not later than the 60th day after the date the electric
56-15 cooperative first complies with all requirements of Subsection (c)
56-16 of this section, the commission receives a petition requesting
56-17 review signed by:
56-18 (1) at least 10 percent of the members of the electric
56-19 cooperative;
56-20 (2) members of the electric cooperative who purchased
56-21 more than 50 percent of the electric cooperative's annual energy
56-22 sales to a customer class in the test year, provided that the
56-23 petition includes a certification of the purchases; or
56-24 (3) an executive officer of an affected electric
56-25 utility, provided that the petition prescribes the particular class
57-1 or classes for which a review is requested.
57-2 (h) When a person files a petition under Subsection (g) of
57-3 this section, the person shall notify the electric cooperative in
57-4 writing of the action.
57-5 (i) The commission may on its own motion review the rates of
57-6 an electric cooperative if the commission first finds that there is
57-7 good cause to believe that the electric cooperative is earning more
57-8 than a reasonable return on overall system revenues or on revenue
57-9 from a rate class.
57-10 (j) The commission shall conduct a review under Subdivision
57-11 (1) or (2) of Subsection (g) of this section or under Subsection
57-12 (i) of this section in accordance with Section 43 of this Act and
57-13 the other applicable rate-setting principles of Article VI of this
57-14 Act, except that:
57-15 (1) the period for review does not begin until the
57-16 electric cooperative files a rate-filing package as required by
57-17 commission rules;
57-18 (2) the proposed change may not be suspended during
57-19 the pendency of the review; however, the electric cooperative shall
57-20 refund or credit against future bills all sums collected in excess
57-21 of the rate finally set by the commission, if the commission so
57-22 orders; and
57-23 (3) the electric cooperative shall observe the rates
57-24 set by the commission until the rates are changed as provided by
57-25 this section or by other sections of this Act.
58-1 (k) For a review conducted under Subdivision (3) of
58-2 Subsection (g) of this section, the electric cooperative shall file
58-3 with the commission a copy of the cost-of-service study required
58-4 under Subsection (c)(3) of this section not later than the 10th day
58-5 after the date the electric cooperative receives from the affected
58-6 electric utility notice that a petition has been filed. The
58-7 commission shall determine for each class for which review has been
58-8 requested the annual cost of providing service to the class, as
58-9 stated in the electric cooperative's cost-of-service study, and the
58-10 revenues for the class that would be produced by multiplying the
58-11 rate set by the electric cooperative by the annual billing units
58-12 for the class, as stated in the cost-of-service study. If the
58-13 electric cooperative proposes a rate class solely for a new
58-14 customer, the electric cooperative shall estimate the reasonable
58-15 annual cost of providing service to the class, and the electric
58-16 cooperative shall base class revenues on reasonable estimates of
58-17 billing units.
58-18 (l) The rate for each class for which review has been
58-19 requested under Subdivision (3) of Subsection (g) of this section
58-20 is suspended during the pendency of the review. The commission
58-21 shall dismiss the petition and approve the rates if the revenues
58-22 for the class are equal to or greater than the cost of providing
58-23 service to the class. The commission shall disapprove the rate if
58-24 the revenues for the class are less than the cost of providing
58-25 service to the class; however, this action does not affect
59-1 reconsideration of the rate as a part of any subsequent rate-making
59-2 proceeding. The rate adopted by the electric cooperative is deemed
59-3 approved and may be placed into effect if the commission fails to
59-4 make its final determination administratively not later than the
59-5 45th day after the date the electric cooperative files its
59-6 cost-of-service study.
59-7 (m) Except as provided by Subsection (a) of this section,
59-8 the members of an electric cooperative may at any time revoke the
59-9 electric cooperative's election to be exempt from rate regulation
59-10 or elect to again be exempt from rate regulation by majority vote
59-11 of the members voting.
59-12 (n) This section does not affect the application of other
59-13 provisions of this Act not directly related to rates or to the
59-14 authority of the commission to require an electric cooperative to
59-15 file reports required under this Act or rules adopted by the
59-16 commission. A service fee or a service rule or regulation set by
59-17 the electric cooperative under this section must comply with
59-18 commission rules applicable to all electric utilities. The
59-19 commission may determine whether an electric cooperative has
59-20 unlawfully charged, collected, or received a rate for electric
59-21 utility service.
59-22 SECTION 18. Section 39 of the Public Utility Regulatory Act
59-23 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
59-24 as follows:
59-25 Sec. 39. FIXING OVERALL REVENUES. (a) In fixing the rates
60-1 of a public utility the regulatory authority shall fix its overall
60-2 revenues at a level which will permit such utility a reasonable
60-3 opportunity to earn a reasonable return on its invested capital
60-4 used and useful in rendering service to the public over and above
60-5 its reasonable and necessary operating expenses.
60-6 (b) In fixing a reasonable return on invested capital, the
60-7 regulatory authority shall consider, in addition to other
60-8 applicable factors, efforts to comply with the utility's most
60-9 recent approved integrated resource <statewide energy> plan, the
60-10 efforts and achievements of such utility in the conservation of
60-11 resources, the quality of the utility's services, the efficiency of
60-12 the utility's operations, and the quality of the utility's
60-13 management.
60-14 ARTICLE VII. CERTIFICATES OF CONVENIENCE AND NECESSITY
60-15 SECTION 19. Section 54 of the Public Utility Regulatory Act
60-16 (Article 1446c, Vernon's Texas Civil Statutes), is amended to read
60-17 as follows:
60-18 Sec. 54. Notice and hearing; issuance or refusal; factors
60-19 considered; filing of notice of intent by electric utilities; time
60-20 for approval or denial of new transmission facilities.
60-21 (a) When an application for a certificate of public
60-22 convenience and necessity is filed, the commission shall give
60-23 notice of such application to interested parties and, if requested,
60-24 shall fix a time and place for a hearing and give notice of the
60-25 hearing. Any person interested in the application may intervene at
61-1 the hearing.
61-2 (b) Except for certificates for prior operations granted
61-3 under Section 53, the commission may grant applications and issue
61-4 certificates only if the commission finds that the certificate is
61-5 necessary for the service, accommodation, convenience, or safety of
61-6 the public. The commission may issue the certificate as prayed
61-7 for, or refuse to issue it, or issue it for the construction of a
61-8 portion only of the contemplated system or facility or extension
61-9 thereof, or for the partial exercise only of the right or
61-10 privilege.
61-11 (c) Certificates of convenience and necessity shall be
61-12 granted on a nondiscriminatory basis after consideration by the
61-13 commission of the adequacy of existing service, the need for
61-14 additional service, the effect of the granting of a certificate on
61-15 the recipient of the certificate and on any public utility of the
61-16 same kind already serving the proximate area, and on such factors
61-17 as community values, recreational and park areas, historical and
61-18 aesthetic values, environmental integrity, and the probable
61-19 improvement of service or lowering of cost to consumers in such
61-20 area resulting from the granting of such certificate.
61-21 (d) This section does not apply to a certificate of
61-22 convenience and necessity for an electric generating plant that is
61-23 requested under Section 19 of this Act. The commission may grant a
61-24 certificate of convenience and necessity for an electric generating
61-25 plant only in accordance with Section 19 of this Act, and only if
62-1 the utility has submitted its estimated capital, operating, and
62-2 fuel costs for the plant in accordance with Section 19(l) of this
62-3 Act. <In addition to the requirements of this section, an electric
62-4 utility applying for certificate of convenience and necessity for a
62-5 new generating plant must first file a notice of intent to file an
62-6 application for certification.>
62-7 <(1) The notice of intent shall set out alternative
62-8 methods considered to help meet the electrical needs, related
62-9 electrical facilities, and the advantages and disadvantages of the
62-10 alternatives. In addition, the notice shall indicate compatibility
62-11 with the most recent long-term forecast provided in this Act.>
62-12 <(2) The commission shall conduct a hearing on the
62-13 notice of intent to determine the appropriateness of the proposed
62-14 generating plant as compared to the alternatives and shall issue a
62-15 report on its findings. In conjunction with the issuance of the
62-16 report, the commission shall render a decision approving or
62-17 disapproving the notice. Such decision shall be rendered within
62-18 180 days from the date of filing the notice of intent>.
62-19 (e) <On approval of the notice of intent, a utility may
62-20 apply for certification for a generating plant, site, and site
62-21 facilities no later than 12 months before construction is to
62-22 commence.>
62-23 <(1) The application for certification shall contain
62-24 such information as the commission may require to justify the
62-25 proposed generating plant, site, and site facilities and to allow a
63-1 determination showing compatibility with the most recent forecast.>
63-2 <(2) Certificates of convenience and necessity shall
63-3 be granted on a nondiscriminatory basis if the commission finds
63-4 that the proposed new plant is required under the service area
63-5 forecast, that it is the best and most economical choice of
63-6 technology for that service area as compatible with the
63-7 commission's forecast, and that conservation and alternative energy
63-8 sources cannot meet the need.>
63-9 <(f)> If the application for a certificate of convenience
63-10 and necessity involves new transmission facilities, the commission
63-11 shall approve or deny the application within one year after the
63-12 date the application is filed. If the commission does not approve
63-13 or deny the application before this deadline, any party may seek a
63-14 writ of mandamus in a district court of Travis County to compel the
63-15 commission to make a decision on the application.
63-16 Sec. 55. Area Included Within City, Town or Village. No
63-17 change.
63-18 Sec. 56. Contracts Valid and Enforceable. No change.
63-19 Sec. 57. Preliminary Order for Certificate. No change.
63-20 Sec. 58. Continuous and Adequate Service; Discontinuance,
63-21 Reduction or Impairment of Service. No change.
63-22 Sec. 58A. Conditions requiring refusal of service. No
63-23 change.
63-24 Sec. 59. Sale, Assignment or Lease of Certificate. No
63-25 change.
64-1 Sec. 60. Interference with Other Public Utility. No change.
64-2 Sec. 61. Improvements in Service; Interconnecting Service;
64-3 Extended Area Toll-free Telephone Service. No change.
64-4 Sec. 62. Revocation or Amendment of Certificate. (a) The
64-5 commission at any time after notice and hearing may revoke or amend
64-6 any certificate of convenience and necessity if it finds that the
64-7 certificate holder has never provided or is no longer providing
64-8 service in the area, or part of the area, covered by the
64-9 certificate.
64-10 (b) When the certificate of any public utility is revoked or
64-11 amended, the commission may require one or more public utilities to
64-12 provide service in the area in question.
64-13 (c) The commission may revoke a certificate for a generating
64-14 plant under construction if the commission finds that construction
64-15 of the plant is no longer the lowest-cost option, taking into
64-16 consideration the cost to complete the plant relative to other
64-17 alternatives, and finds that it is no longer in the public
64-18 interest. The burden of proof in a proceeding to revoke a
64-19 certificate under this section is on the party contending that the
64-20 certificate should be revoked. The commission shall ensure that
64-21 the utility is made whole for all prudent expenditures associated
64-22 with the planning, design, construction, cancellation, and
64-23 dismantlement of the plant.
64-24 ARTICLE VIII. SALE OF PROPERTY AND MERGERS
64-25 Sec. 63. Report of Sale, Merger, etc.; Investigation;
65-1 Disallowance of Transaction. No change.
65-2 Sec. 64. Purchase of Voting Stock in Another Public Utility:
65-3 Report. No change.
65-4 Sec. 65. Loans to Stockholders: Report. No change.
65-5 Sec. 66. Repealed by Acts 1983, 68th Leg., p. 1222, ch. 263,
65-6 Sec. 25, eff. Sept. 1, 1983.
65-7 ARTICLE IX. RELATIONS WITH AFFILIATED INTERESTS
65-8 Sec. 67. Jurisdiction Over Affiliated Interests. No change.
65-9 Sec. 68. Disclosure of Substantial Interest in Voting
65-10 Securities. No change.
65-11 ARTICLE X. JUDICIAL REVIEW
65-12 Sec. 69. Right to Judicial Review; Evidence; Commission as
65-13 Party Defendant. No change.
65-14 Sec. 70. Costs and Attorney's Fees. No change.
65-15 ARTICLE XI. VIOLATIONS AND ENFORCEMENT
65-16 Sec. 71. Action to Enjoin or Require Compliance. No change.
65-17 <Sec. 71A. Receivership. (a) At the request of the
65-18 commission, the attorney general shall bring suit for the
65-19 appointment of a receiver to collect the assets and carry on the
65-20 business of a water or sewer utility that violates a final order of
65-21 the commission or allows any property owned or controlled by it to
65-22 be used in violation of a final order of the commission.>
65-23 <(b) The court shall appoint a receiver if such appointment
65-24 is necessary to guarantee the collection of assessments, fees,
65-25 penalties, or interest, to guarantee continued service to the
66-1 customers of the utility, or to prevent continued or repeated
66-2 violation of the final order.>
66-3 <(c) The receiver shall execute a bond to assure the proper
66-4 performance of the receiver's duties in an amount to be set by the
66-5 court.>
66-6 <(d) After appointment and execution of bond the receiver
66-7 shall take possession of the assets of the utility specified by the
66-8 court. Until discharged by the court, the receiver shall perform
66-9 the duties that the court directs to preserve the assets and carry
66-10 on the business of the utility and shall strictly observe the final
66-11 order involved.>
66-12 <(e) Upon a showing of good cause by the utility, the court
66-13 may dissolve the receivership and order the assets and control of
66-14 the business returned to the utility.>
66-15 <Sec. 71B. ><Payment of Costs of Receivership><. The receiver
66-16 may, subject to the approval of the court and after giving notice
66-17 to all interested parties, sell or otherwise dispose of real or
66-18 personal property, or any part thereof, of a water or sewer utility
66-19 against which a proceeding has been brought under this article for
66-20 the purpose of paying for the costs incurred in the operation of
66-21 the receivership. Said costs shall include but are not limited to
66-22 the payment of fees to the receiver for his services; payment of
66-23 fees to attorneys, accountants, engineers, or any other person or
66-24 entity which provides goods or services necessary to the operation
66-25 of the receivership; payment of costs incurred in ensuring any
67-1 property owned or controlled by a water or sewer utility is not
67-2 used in violation of a final order of the commission.>
67-3 Sec. 72. Penalty Against Public Utility or Affiliated
67-4 Interest. (a) Any public utility, <water supply or sewer service
67-5 corporation,> customer-owned pay telephone service provider for
67-6 purposes of Section 93A of this Act, or affiliated interest that
67-7 knowingly violates a provision of this Act, fails to perform a duty
67-8 imposed on it, or fails, neglects, or refuses to obey an order,
67-9 rule, regulation, direction, or requirement of the commission or
67-10 decree or judgment of a court, shall be subject to a civil penalty
67-11 of not less than $1,000 nor more than $5,000 for each offense.
67-12 (b) A public utility, <water supply or sewer service
67-13 corporation,> or affiliated interest commits a separate offense
67-14 each day it continues to violate the provisions of Subsection (a)
67-15 of this section.
67-16 (c) The attorney general shall institute suit on his own
67-17 initiative or at the request of, in the name of, and on behalf of
67-18 the commission, in a court of competent jurisdiction to recover the
67-19 penalty under this section.
67-20 Sec. 73. Penalty for Violating Section 6 of This Act. No
67-21 change.
67-22 <Sec. 73A. Civil Penalty for Violations Resulting in
67-23 Pollution. (a) If a public utility or any other person or
67-24 corporation under the jurisdiction of the railroad commission
67-25 pursuant to this Act violates this Act and the violation results in
68-1 pollution of the air or water of this state or poses a threat to
68-2 the public safety, the public utility or any other person may be
68-3 assessed a civil penalty by the railroad commission.>
68-4 <(b) The penalty may not exceed $10,000 a day for each
68-5 violation. Each day a violation continues may be considered a
68-6 separate violation for purposes of penalty assessments.>
68-7 <(c) In determining the amount of the penalty, the railroad
68-8 commission shall consider the public utility's, person's, or
68-9 corporation's history of previous violations of this Act, the
68-10 seriousness of the violation, any hazard to the health or safety of
68-11 the public, and the demonstrated good faith of the permittee or
68-12 public utility, person, or corporation charged.>
68-13 <(d) A civil penalty may be assessed only after the public
68-14 utility, person, or corporation charged with a violation described
68-15 under Subsection (a) of this section has been given an opportunity
68-16 for a public hearing.>
68-17 <(e) If a public hearing has been held, the railroad
68-18 commission shall make findings of fact, and it shall issue a
68-19 written decision as to the occurrence of the violation and the
68-20 amount of the penalty that is warranted, incorporating, when
68-21 appropriate, an order requiring that the penalty be paid.>
68-22 <(f) If appropriate, the railroad commission shall
68-23 consolidate the hearings with other proceedings under this Act.>
68-24 <(g) If the public utility, person, or corporation charged
68-25 with the violation fails to avail itself of the opportunity for a
69-1 public hearing, a civil penalty may be assessed by the railroad
69-2 commission after it has determined that a violation did occur and
69-3 the amount of the penalty that is warranted.>
69-4 <(h) The railroad commission shall then issue an order
69-5 requiring that the penalty be paid.>
69-6 <(i) On the issuance of an order finding that a violation
69-7 has occurred, the railroad commission shall inform the public
69-8 utility, person, or corporation charged within 30 days of the
69-9 amount of the penalty.>
69-10 <(j) Within the 30-day period immediately following the day
69-11 on which the decision or order is final as provided in Section
69-12 16(c), Administrative Procedure and Texas Register Act (Article
69-13 6252-13a, Vernon's Texas Civil Statutes), the public utility,
69-14 person, or corporation charged with the penalty shall:>
69-15 <(1) pay the penalty in full; or>
69-16 <(2) if the public utility, person, or corporation
69-17 seeks judicial review of either the amount of the penalty or the
69-18 fact of the violation, or both:>
69-19 <(A) forward the amount to the railroad
69-20 commission for placement in an escrow account; or>
69-21 <(B) in lieu of payment into escrow, post a
69-22 supersedeas bond with the railroad commission under the following
69-23 conditions. If the decision or order being appealed is the first
69-24 final railroad commission decision or order assessing any
69-25 administrative penalty against the public utility, person, or
70-1 corporation, the railroad commission shall accept a supersedeas
70-2 bond. In the case of appeal of any subsequent decision or order
70-3 assessing any administrative penalty against the public utility,
70-4 person, or corporation, regardless of the finality of judicial
70-5 review of any previous decision or order, the railroad commission
70-6 may accept a supersedeas bond. Each supersedeas bond shall be for
70-7 the amount of the penalty and in a form approved by the railroad
70-8 commission and shall stay the collection of the penalty until all
70-9 judicial review of the decision or order is final.>
70-10 <(k) If through judicial review of the decision or order it
70-11 is determined that no violation occurred or that the amount of the
70-12 penalty should be reduced or not assessed, the railroad commission
70-13 shall, within the 30-day period immediately following that
70-14 determination, if the penalty has been paid to the railroad
70-15 commission, remit the appropriate amount to the public utility,
70-16 person, or corporation with accrued interest, or where a
70-17 supersedeas bond has been posted, the railroad commission shall
70-18 execute a release of such bond.>
70-19 <(l) Failure to forward the money to the railroad commission
70-20 within the time provided by Subsection (j) of this section results
70-21 in a waiver of all legal rights to contest the violation or the
70-22 amount of the penalty.>
70-23 <(m) Civil penalties owed under this section may be
70-24 recovered in a civil action brought by the attorney general at the
70-25 request of the railroad commission.>
71-1 <(n) Judicial review of the order or decision of the
71-2 railroad commission assessing the penalty shall be under the
71-3 substantial evidence rule and shall be instituted by filing a
71-4 petition with the district court of Travis County, Texas, and not
71-5 elsewhere, as provided for in Section 19, Administrative Procedure
71-6 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
71-7 Statutes).>
71-8 Sec. 74. Personal Penalty. No change.
71-9 Sec. 75. Contempt Proceedings. No change.
71-10 Sec. 76. Disposition of Fines and Penalties. No change.
71-11 Sec. 77. Venue. No change.
71-12 ARTICLE XII. COMMISSION FINANCING
71-13 Sec. 78. Assessments Upon Public Utilities. An assessment
71-14 is hereby imposed upon each public utility within the commission's
71-15 jurisdiction, including interexchange telecommunications carriers,
71-16 serving the ultimate consumer equal to one-sixth of one percent of
71-17 its gross receipts from rates charged the ultimate consumers in
71-18 Texas for the purpose of defraying the costs and expenses incurred
71-19 in the administration of this Act. The legislature may <Thereafter
71-20 the commission shall, subject to the approval of the Legislature,>
71-21 adjust this assessment to provide a level of income sufficient to
71-22 fund the commission and the office of public utility counsel.
71-23 Nothing in this Act or any other provision of law shall prohibit
71-24 interexchange telecommunications carriers who do not provide local
71-25 exchange telephone service from collecting the fee imposed under
72-1 this Act as an additional item separately stated on the customer
72-2 bill as "Utility Gross Receipts Assessment."
72-3 Sec. 79. Payment Dates; Delinquency. No change.
72-4 Sec. 79A. Payment of Assessments. No change.
72-5 Sec. 80. Collection and Payment into General Revenue Fund.
72-6 All fees, penalties, and interest paid under the provisions of
72-7 Sections 78 and 79 of this article shall be collected by the
72-8 comptroller of public accounts and paid into the general revenue
72-9 fund. <The commission shall notify the comptroller of public
72-10 accounts of any adjustment of the assessment imposed in Section 78
72-11 when made.>
72-12 Sec. 81. Approval of Budget. No change.
72-13 Sec. 82. Accounting Records; Audit. No change.
72-14 ARTICLE XIII. MISCELLANEOUS PROVISIONS
72-15 Sec. 83. Complaint by Any Affected Person. (a) Any
72-16 affected person may complain to the regulatory authority in writing
72-17 setting forth any act or thing done or omitted to be done by any
72-18 public utility in violation or claimed violation of any law which
72-19 the regulatory authority has jurisdiction to administer, or of any
72-20 order, ordinance, rule, or regulation of the regulatory authority.
72-21 The commission shall keep an information file about each complaint
72-22 filed with the commission that the commission has authority to
72-23 resolve <relating to a utility>. The commission shall retain the
72-24 file for a reasonable period.
72-25 (b) If a written complaint is filed with the commission that
73-1 the commission has authority to resolve <relating to a utility>,
73-2 the commission, at least <as frequently as> quarterly and until
73-3 final disposition of the complaint, shall notify the parties to the
73-4 complaint of the status of the complaint unless the notice would
73-5 jeopardize an undercover investigation.
73-6 (c) Any affected person may complain to the regulatory
73-7 authority in writing setting forth any act or thing done or not
73-8 done by any recreational vehicle park owner that provides metered
73-9 electric service under Article 1446d-2, Revised Statutes, in
73-10 violation or claimed violation of any law that the regulatory
73-11 authority has jurisdiction to administer or of any order,
73-12 ordinance, rule, or regulation of the regulatory authority. The
73-13 commission shall keep an information file about each complaint
73-14 filed with the commission relating to a recreational vehicle park
73-15 owner. The commission shall retain the file for a reasonable
73-16 period. The commission, quarterly or more often until final
73-17 disposition of the written complaint, shall notify the parties to
73-18 the complaint of the status of the complaint unless the notice
73-19 would jeopardize an undercover investigation.
73-20 Sec. 84. Record of Proceedings; Right to Hearing. No
73-21 change.
73-22 Sec. 85. Judicial Stay or Suspension of Order, Ruling or
73-23 Decision. No change.
73-24 Sec. 86. (Blank)
73-25 Sec. 87. Assumption of Jurisdiction. No change.
74-1 <Sec. 87A. Certain Water and Sewer Utility Property Included
74-2 in Rate Base; Valuation Used; Depreciation Expense. (a) The
74-3 provisions of this section apply notwithstanding any other
74-4 provision of this Act.>
74-5 <(b) Water and sewer utility property in service which was
74-6 acquired from an affiliate or developer prior to September 1, 1976,
74-7 included by the utility in its rate base shall be included in all
74-8 ratemaking formulae and at the installed cost of the property
74-9 rather than the price set between the entities. Unless the funds
74-10 for this property are provided by explicit customer agreements, the
74-11 property shall be considered invested capital and shall not be
74-12 considered contributions in aid of construction or customer
74-13 contributed capital.>
74-14 <(c) Depreciation expense included in cost of service shall
74-15 include depreciation on all currently used, depreciable utility
74-16 property owned by the utility.>
74-17 Sec. 87B. Dedicated Line Long Distance Service. No change.
74-18 Sec. 87C. Caller Identification Services. No change. Sec.
74-19 Sec. 88. Repealed by Acts 1987, 70th Leg., ch. 654, Sec.
74-20 7(b), eff. Sept. 1, 1987.
74-21 Sec. 88A. Commission as resource center; development of
74-22 energy efficient school facilities. No change.
74-23 Sec. 89. Liberal Construction. No change.
74-24 Sec. 90. Repealer; Prior Rules and Regulations to Remain in
74-25 Effect. No change.
75-1 Sec. 91. Terminating Services to Elderly and Disabled;
75-2 Criteria and Guidelines; Establishment. No change.
75-3 Sec. 92. Severability. No change.
75-4 Sec. 93. Interexchange services; local exchange companies'
75-5 rates. No change.
75-6 Sec. 93A. Expansion of toll-free calling areas; criteria.
75-7 No change.
75-8 Sec. 93A. Pay telephones; numbers and notices displayed. No
75-9 change.
75-10 Sec. 93B. Hotels or motels; charges for telephone calls. No
75-11 change.
75-12 Sec. 93C. "1-900" service. No change.
75-13 ARTICLE XIV. TELECOMMUNICATIONS SERVICE ASSISTANCE PROGRAM;
75-14 UNIVERSAL SERVICE FUND
75-15 Sec. 94. Tel-assistance service. No change.
75-16 Sec. 95. Eligibility for tel-assistance service; burden of
75-17 proof; billing. No change.
75-18 Sec. 96. Tel-assistance services; billing; rates. No
75-19 change.
75-20 Sec. 96A. Statewide telecommunications relay access service
75-21 for hearing-impaired and speech-impaired. No change.
75-22 Sec. 96B. Distance learning activities by educational
75-23 institutions; reduced rates. No change.
75-24 Sec. 97. Recovery of lost revenues. No change.
75-25 Sec. 98A. Interactive multimedia communications. No change.
76-1 Sec. 99. Severability. No change.
76-2 Secs. 100, 101. Repealed by Acts 1993, 73rd Leg., ch. 350,
76-3 Sec. 4, eff. Sept. 1, 1993.
76-4 ARTICLE XV. AUTOMATIC DIAL ANNOUNCING DEVICES
76-5 Sec. 111. Definitions. No change.
76-6 Sec. 112. Exemptions. No change.
76-7 Sec. 113. Requirements for operation of ADAD. No change.
76-8 Sec. 114. Investigation of complaints; violations;
76-9 disconnection of service. No change.
76-10 Sec. 115. Application for permit to operate ADAD. No
76-11 change.
76-12 Sec. 116. Violations; penalties. No change.
76-13 Sec. 117. Revocation of permit; offenses. No change.
76-14 Sec. 118. Rule-making authority. No change.
76-15 Sec. 119. Compliance with consumers' requests not to be
76-16 called. No change.
76-17 Sec. 120. Notice to consumer of provisions of Chapter 37 of
76-18 the Business & Commerce Code and Sec. 119. No change.
76-19 SECTION 1.02. Chapter 591, Acts of the 72nd Legislature,
76-20 Regular Session, 1991 (Article 6252-13f, Vernon's Texas Civil
76-21 Statutes), is amended by adding Section 4A to read as follows:
76-22 Sec. 4A. UTILITY DIVISION. (a) The office shall establish
76-23 a utility division to perform the contested case hearings for the
76-24 Public Utility Commission of Texas as prescribed by the Public
76-25 Utility Regulatory Act (Article 1446c, Vernon's Texas Civil
77-1 Statutes) and its subsequent amendments and other applicable law.
77-2 (b) The utility division shall conduct hearings relating to
77-3 contested cases before the commission, other than a hearing
77-4 conducted by one or more commissioners. The commission by rule may
77-5 delegate the responsibility to hear any other matter before the
77-6 commission if consistent with the duties and responsibilities of
77-7 the division.
77-8 (c) Only an administrative law judge in the utility division
77-9 may conduct a hearing on behalf of the commission. An
77-10 administrative law judge in the utility division may conduct
77-11 hearings for other state agencies as time allows. The office may
77-12 transfer an administrative law judge into the division on a
77-13 temporary or permanent basis and may contract with qualified
77-14 individuals to serve as temporary administrative law judges as
77-15 necessary.
77-16 (d) To be eligible to preside at a hearing, an
77-17 administrative law judge, regardless of temporary or permanent
77-18 status, must be licensed to practice law in this state and have not
77-19 less than five years of general experience or three years of
77-20 experience in utility regulatory law.
77-21 (e) At the time the office receives jurisdiction of a
77-22 proceeding, the commission shall provide to the administrative law
77-23 judge a list of issues or areas that must be addressed. In
77-24 addition, the commission may identify and provide to the
77-25 administrative law judge at any time additional issues or areas
78-1 that must be addressed.
78-2 (f) The office and the commission shall jointly adopt rules
78-3 providing for certification to the commission of an issue that
78-4 involves an ultimate finding of compliance with or satisfaction of
78-5 a statutory standard the determination of which is committed to the
78-6 discretion or judgment of the commission by law. The rules must
78-7 address, at a minimum, the issues that are appropriate for
78-8 certification and the procedure to be used in certifying the issue.
78-9 Each agency shall publish the jointly adopted rules.
78-10 (g) Notwithstanding Section 13(j), Administrative Procedure
78-11 Act and its subsequent amendments, the commission may change a
78-12 finding of fact or conclusion of law made by the administrative law
78-13 judge or vacate or modify an order issued by the administrative law
78-14 judge only if the commission:
78-15 (1) determines that the administrative law judge;
78-16 (A) did not property apply or interpret
78-17 applicable law, agency rules or policies, or prior administrative
78-18 decisions; or
78-19 (B) issued a finding of fact that is not
78-20 supported by a preponderance of the evidence; or
78-21 (2) determines that an agency policy or a prior
78-22 administrative decision on which the administrative law judge
78-23 relied is incorrect or should be changed.
78-24 (h) The commission shall state in writing the specific
78-25 reason and legal basis for its determination under Subsection (g)
79-1 of this section.
79-2 SECTION 1.03. EMERGENCY. The importance of this legislation
79-3 and the crowded condition of the calendars in both houses create an
79-4 emergency and an imperative public necessity that the
79-5 constitutional rule requiring bills to be read on three several
79-6 days in each house be suspended, and this rule is hereby suspended,
79-7 and that this Act take effect and be in force from and after its
79-8 passage, and it is so enacted.