74R12026 CBH-F
By Seidlits H.B. No. 3164
Substitute the following for H.B. No. 3164:
By Jones of Lubbock C.S.H.B. No. 3164
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation, operations, and functions of the
1-3 Public 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 SECTION 1. Section 1.003, Public Utility Regulatory Act of
1-7 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-8 Regular Session, 1995, is amended by adding Subdivision (18) to
1-9 read as follows:
1-10 (18) "Trade association" means a nonprofit,
1-11 cooperative, and voluntarily joined association of business or
1-12 professional persons who are employed by public utilities or
1-13 utility competitors to assist the public utility industry, a
1-14 utility competitor, or the industry's or competitor's employees in
1-15 dealing with mutual business or professional problems and in
1-16 promoting their common interest.
1-17 SECTION 2. Section 1.005, Public Utility Regulatory Act of
1-18 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-19 Regular Session, 1995, is amended to read as follows:
1-20 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
1-21 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
1-22 to all proceedings under this Act except to the extent inconsistent
1-23 with this Act. Communications of members and employees of the
2-1 commission with a party, a party's representative, or other persons
2-2 are governed by Section 2001.061, Government Code.
2-3 (b) The commission is subject to Chapter 551, Government
2-4 Code.
2-5 SECTION 3. Subtitle A, Title I, Public Utility Regulatory
2-6 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
2-7 Legislature, Regular Session, 1995, is amended by adding Section
2-8 1.006 to read as follows:
2-9 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
2-10 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
2-11 utility competitor, or utility supplier is considered to be
2-12 affected in a manner other than by the setting of rates for that
2-13 class of customer if during a relevant calendar year the entity
2-14 provides fuel, utility-related goods, utility-related products, or
2-15 utility-related services to a regulated or unregulated provider of
2-16 telecommunications or electric services or to an affiliated
2-17 interest in an amount equal to the greater of $10,000 or 10 percent
2-18 of the person's business.
2-19 SECTION 4. Subsections (c) and (d), Section 1.021, Public
2-20 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
2-21 the 74th Legislature, Regular Session, 1995, are amended to read as
2-22 follows:
2-23 (c) The governor shall designate a member of the commission
2-24 as presiding officer of the commission to serve in that capacity at
2-25 the pleasure of the governor. <At its first meeting following the
3-1 biennial appointment and qualification of a commissioner, the
3-2 commission shall elect one of the commissioners chairman.>
3-3 (d) Appointments to the commission shall be made without
3-4 regard to the race, color, disability <creed>, sex, religion, age,
3-5 or national origin of the appointees.
3-6 SECTION 5. Section 1.022, Public Utility Regulatory Act of
3-7 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
3-8 Session, 1995, is amended to read as follows:
3-9 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
3-10 of Texas and the Office of Public Utility Counsel are subject to
3-11 Chapter 325, Government Code (Texas Sunset Act). Unless continued
3-12 in existence as provided by that chapter, the commission and the
3-13 office are abolished and this Act expires September 1, 2001 <1995>.
3-14 SECTION 6. Section 1.023, Public Utility Regulatory Act of
3-15 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-16 Regular Session, 1995, is amended to read as follows:
3-17 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
3-18 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
3-19 a person must be a qualified voter, <not less than 30 years of
3-20 age,> a citizen of the United States, <and> a resident of the State
3-21 of Texas, and a representative of the general public.
3-22 (b) Each commissioner shall qualify for office by taking the
3-23 oath prescribed for other state officers <and shall execute a bond
3-24 for $5,000 payable to the state and conditioned on the faithful
3-25 performance of his duties>.
4-1 (c) A person is not eligible for appointment as a
4-2 commissioner if at any time during the two-year period immediately
4-3 preceding his appointment he personally served as an officer,
4-4 director, owner, employee, partner, or legal representative of any
4-5 public utility, <or any> affiliated interest, or direct competitor
4-6 of a public utility or he owned or controlled, directly or
4-7 indirectly, stocks or bonds of any class with a value of $10,000 or
4-8 more in a public utility, <or any> affiliated interest, or direct
4-9 competitor of a public utility.
4-10 (d) A person who is required to register as a lobbyist under
4-11 Chapter 305, Government Code, because of the person's activities
4-12 for compensation on behalf of a profession related to the operation
4-13 of the commission may not serve as a member of the commission or
4-14 public utility counsel or act as the general counsel to the
4-15 commission.
4-16 (e) A person is not eligible for appointment as a public
4-17 member of the commission or for employment as the general counsel
4-18 or executive director of the commission if:
4-19 (1) the person serves on the board of directors of a
4-20 company that supplies fuel, utility-related services, or
4-21 utility-related products to regulated or unregulated electric or
4-22 telecommunications utilities; or
4-23 (2) the person or the person's spouse:
4-24 (A) is employed by or participates in the
4-25 management of a business entity or other organization regulated by
5-1 the commission or receiving funds from the commission;
5-2 (B) owns or controls, directly or indirectly,
5-3 more than a 10 percent interest or a pecuniary interest with a
5-4 value exceeding $10,000 in:
5-5 (i) a business entity or other
5-6 organization regulated by the commission or receiving funds from
5-7 the commission; or
5-8 (ii) any utility competitor, utility
5-9 supplier, or other entity affected by a commission decision in a
5-10 manner other than by the setting of rates for that class of
5-11 customer;
5-12 (C) uses or receives a substantial amount of
5-13 tangible goods, services, or funds from the commission, other than
5-14 compensation or reimbursement authorized by law for commission
5-15 membership, attendance, or expenses; or
5-16 (D) notwithstanding Paragraph (B) of this
5-17 subdivision, has an interest in a mutual fund or retirement fund in
5-18 which more than 10 percent of the fund's holdings at the time of
5-19 appointment is in a single utility, utility competitor, or utility
5-20 supplier in this state and the person does not disclose this
5-21 information to the governor, senate, commission, or other entity,
5-22 as appropriate.
5-23 (f) Notwithstanding any other provision of this Act, a
5-24 person otherwise ineligible because of the application of
5-25 Subsection (e)(2)(B) of this section may be appointed to the
6-1 commission and serve as a commissioner or may be employed as the
6-2 general counsel or executive director if the person:
6-3 (1) notifies the attorney general and commission that
6-4 the person is ineligible because of the application of Subsection
6-5 (e)(2)(B) of this section; and
6-6 (2) divests the person or the person's spouse of the
6-7 ownership or control before beginning service or employment, or
6-8 within a reasonable time if the person is already serving or
6-9 employed at the time Subsection (e)(2)(B) of this section first
6-10 applies to the person.
6-11 (g) An officer, employee, or paid consultant of a trade
6-12 association in the field of public utilities may not be a member or
6-13 employee of the commission who is exempt from the state's position
6-14 classification plan or is compensated at or above the amount
6-15 prescribed by the General Appropriations Act for step 1, salary
6-16 group 17, of the position classification salary schedule.
6-17 (h) A person who is a spouse of an officer, manager, or paid
6-18 consultant of a trade association in the field of public utilities
6-19 may not be a commission member and may not be a commission employee
6-20 who is exempt from the state's position classification plan or is
6-21 compensated at or above the amount prescribed by the General
6-22 Appropriations Act for step 1, salary group 17, of the position
6-23 classification salary schedule.
6-24 SECTION 7. Subsections (a), (d), and (e), Section 1.024,
6-25 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
7-1 Acts of the 74th Legislature, Regular Session, 1995, are amended to
7-2 read as follows:
7-3 (a) A commissioner or employee of the commission may not do
7-4 any of the following during his period of service with the
7-5 commission:
7-6 (1) have any pecuniary interest, either as an officer,
7-7 director, partner, owner, employee, attorney, consultant, or
7-8 otherwise, in any public utility or affiliated interest, or in any
7-9 person or corporation or other business entity a significant
7-10 portion of whose business consists of furnishing goods or services
7-11 to public utilities or affiliated interests, but not including a
7-12 nonprofit group or association solely supported by gratuitous
7-13 contributions of money, property or services, other than a trade
7-14 association;
7-15 (2) own or control any securities in a public utility,
7-16 <or> affiliated interest, or direct competitor of a public utility,
7-17 either directly or indirectly; or
7-18 (3) accept any gift, gratuity, or entertainment
7-19 whatsoever from any public utility, <or> affiliated interest, or
7-20 direct competitor of a public utility, or from any person,
7-21 corporation, agent, representative, employee, or other business
7-22 entity a significant portion of whose business consists of
7-23 furnishing goods or services to public utilities, <or> affiliated
7-24 interests, or direct competitors of public utilities, or from any
7-25 agent, representative, attorney, employee, officer, owner,
8-1 director, or partner of any such business entity or of any public
8-2 utility, <or> affiliated interest, or direct competitor of a public
8-3 utility; provided, however, that the receipt and acceptance of any
8-4 gifts, gratuities, or entertainment after termination of service
8-5 with the commission whose cumulative value in any one-year period
8-6 is less than $100 does not constitute a violation of this Act.
8-7 (d) A public utility, <or> affiliated interest, or direct
8-8 competitor of a public utility, or any person, corporation, firm,
8-9 association, or business that furnishes goods or services to any
8-10 public utility, <or> affiliated interest, or direct competitor of a
8-11 public utility, or any agent, representative, attorney, employee,
8-12 officer, owner, director, or partner of any public utility, <or>
8-13 affiliated interest, or direct competitor of a public utility, or
8-14 any person, corporation, firm, association, or business furnishing
8-15 goods or services to any public utility, <or> affiliated interest,
8-16 or direct competitor of a public utility may not give or offer to
8-17 give any gift, gratuity, employment, or entertainment whatsoever to
8-18 any member or employee of the commission except as allowed by
8-19 Subdivision (3) of Subsection (a) of this section, nor may any such
8-20 public utility, <or> affiliated interest, or direct competitor of a
8-21 public utility or any such person, corporation, firm, association,
8-22 or business aid, abet, or participate with any member, employee, or
8-23 former employee of the commission in any activity or conduct that
8-24 would constitute a violation of this subsection or Subdivision (3)
8-25 of Subsection (a) of this section.
9-1 (e) It is not a violation of this section if a member of the
9-2 commission or a person employed by the commission, upon becoming
9-3 the owner of any stocks or bonds or other pecuniary interest in a
9-4 public utility, <or> affiliated interest, or direct competitor of a
9-5 public utility <under the jurisdiction of the commission> otherwise
9-6 than voluntarily, informs the commission and the attorney general
9-7 of such ownership and divests himself of the ownership or interest
9-8 within a reasonable time. In this section, a "pecuniary interest"
9-9 includes income, compensation, and payment of any kind, in addition
9-10 to ownership interests. It is not a violation of this section if
9-11 such a pecuniary interest is held indirectly by ownership of an
9-12 interest in a retirement system, institution, or fund which in the
9-13 normal course of business invests in diverse securities
9-14 independently of the control of the commissioner or employee.
9-15 SECTION 8. Section 1.025, Public Utility Regulatory Act of
9-16 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-17 Regular Session, 1995, is amended to read as follows:
9-18 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
9-19 (a) A commissioner may not within two years, and an employee of
9-20 the commission or an employee of the State Office of Administrative
9-21 Hearings involved in hearing utility cases may not, within one year
9-22 after his employment with the commission or the State Office of
9-23 Administrative Hearings has ceased, be employed by a public utility
9-24 which was in the scope of the commissioner's or employee's official
9-25 responsibility while the commissioner or employee was associated
10-1 with the commission or the State Office of Administrative Hearings.
10-2 (b) During the time a commissioner or employee of the
10-3 commission or an employee of the State Office of Administrative
10-4 Hearings involved in hearing utility cases is associated with the
10-5 commission or State Office of Administrative Hearings or at any
10-6 time after, the commissioner or employee may not represent a
10-7 person, corporation, or other business entity before the commission
10-8 or State Office of Administrative Hearings or a court in a matter
10-9 in which the commissioner or employee was personally involved while
10-10 associated with the commission or State Office of Administrative
10-11 Hearings or a matter that was within the commissioner's or
10-12 employee's official responsibility while the commissioner or
10-13 employee was associated with the commission or State Office of
10-14 Administrative Hearings.
10-15 (c) The commission shall require its members and employees
10-16 to read this section and Section 1.024 of this Act and as often as
10-17 necessary shall provide information regarding their qualifications
10-18 for office or employment under this Act and their responsibilities
10-19 under applicable laws relating to standards of conduct for state
10-20 officers and employees.
10-21 SECTION 9. Section 1.026, Public Utility Regulatory Act of
10-22 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-23 Regular Session, 1995, is amended to read as follows:
10-24 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
10-25 (a) It is a ground for removal from the commission if a member:
11-1 (1) does not have at the time of appointment the
11-2 qualifications required by Section 1.023 of this Act <for
11-3 appointment to the commission>; <or>
11-4 (2) does not maintain during <the> service on the
11-5 commission the qualifications required by Section 1.023 of this
11-6 Act;
11-7 (3) violates a prohibition established by Section
11-8 1.023, 1.024, or 1.025 of this Act;
11-9 (4) cannot discharge the member's duties for a
11-10 substantial part of the term for which the member is appointed
11-11 because of illness or disability; or
11-12 (5) is absent from more than half of the regularly
11-13 scheduled commission meetings that the member is eligible to attend
11-14 during a calendar year unless the absence is excused by majority
11-15 vote of <for appointment to> the commission.
11-16 (b) The validity of an action of the commission is not
11-17 affected by the fact that it is <was> taken when a ground for
11-18 removal of a commission member exists <of the commission existed>.
11-19 (c) If the executive director has knowledge that a potential
11-20 ground for removal exists, the executive director shall notify the
11-21 presiding officer of the commission of the potential ground. The
11-22 presiding officer shall then notify the governor and the attorney
11-23 general that a potential ground for removal exists. If the
11-24 potential ground for removal involves the presiding officer of the
11-25 commission, the executive director shall notify the next highest
12-1 officer of the commission, who shall notify the governor and the
12-2 attorney general that a potential ground for removal exists.
12-3 (d) Before a member of the commission may assume the
12-4 member's duties and before the member may be confirmed by the
12-5 senate, the member must complete at least one course of the
12-6 training program established under this section.
12-7 (e) A training program established under this section shall
12-8 provide information to the member regarding:
12-9 (1) the enabling legislation that created the
12-10 commission and its policymaking body to which the member is
12-11 appointed to serve;
12-12 (2) the programs operated by the commission;
12-13 (3) the role and functions of the commission;
12-14 (4) the rules of the commission with an emphasis on
12-15 the rules that relate to disciplinary and investigatory authority;
12-16 (5) the current budget for the commission;
12-17 (6) the results of the most recent formal audit of the
12-18 commission;
12-19 (7) the requirements of Chapters 551, 552, and 2001,
12-20 Government Code;
12-21 (8) the requirements of the conflict of interest laws
12-22 and other laws relating to public officials; and
12-23 (9) any applicable ethics policies adopted by the
12-24 commission or the Texas Ethics Commission.
12-25 SECTION 10. Subsections (a), (b), and (e), Section 1.028,
13-1 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
13-2 Acts of the 74th Legislature, Regular Session, 1995, are amended to
13-3 read as follows:
13-4 (a) The commission shall employ an executive director, a
13-5 general counsel, and such officers<, administrative law judges,
13-6 hearing examiners, investigators, lawyers, engineers, economists,
13-7 consultants, statisticians, accountants, administrative assistants,
13-8 inspectors, clerical staff,> and other employees as it deems
13-9 necessary to carry out the provisions of this Act. All employees
13-10 receive such compensation as is fixed by the legislature. The
13-11 commission shall develop and implement policies that clearly define
13-12 the respective responsibilities of the commission and the staff of
13-13 the commission.
13-14 (b) The executive director is responsible for the day-to-day
13-15 operations of the commission and shall coordinate the activities of
13-16 commission employees <commission shall employ the following:>
13-17 <(1) an executive director;>
13-18 <(2) a director of hearings who has wide experience in
13-19 utility regulation and rate determination;>
13-20 <(3) a chief engineer who is a registered engineer and
13-21 an expert in public utility engineering and rate matters;>
13-22 <(4) a chief accountant who is a certified public
13-23 accountant, experienced in public utility accounting;>
13-24 <(5) a director of research who is experienced in the
13-25 conduct of analyses of industry, economics, energy, fuel, and other
14-1 related matters that the commission may want to undertake;>
14-2 <(6) a director of consumer affairs and public
14-3 information;>
14-4 <(7) a director of utility evaluation;>
14-5 <(8) a director of energy conservation; and>
14-6 <(9) a general counsel>.
14-7 <(e) The commission shall employ administrative law judges
14-8 to preside at hearings of major importance before the commission.
14-9 An administrative law judge must be a licensed attorney with not
14-10 less than five years' general experience or three years' experience
14-11 in utility regulatory law. The administrative law judge shall
14-12 perform his duties independently from the commission.>
14-13 SECTION 11. Section 1.029, Public Utility Regulatory Act of
14-14 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
14-15 Regular Session, 1995, is amended to read as follows:
14-16 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
14-17 or the executive director's <his> designee shall develop an
14-18 intra-agency career ladder program that addresses opportunities for
14-19 mobility and advancement for employees of the commission. The
14-20 program shall require intra-agency posting of all positions
14-21 concurrently with<, one part of which shall be the intra-agency
14-22 posting of all nonentry level positions for at least 10 days
14-23 before> any public posting. The executive director or the
14-24 executive director's <his> designee shall develop a system of
14-25 annual performance evaluations that are based on documented
15-1 employee performance <measurable job tasks>. All merit pay for
15-2 commission employees must be based on the system established under
15-3 this section.
15-4 (b) The executive director or the executive director's
15-5 <his/her> designee shall prepare and maintain a written policy
15-6 statement <plan> to assure implementation of a program of equal
15-7 employment opportunity under which <whereby> all personnel
15-8 transactions are made without regard to race, color, disability,
15-9 sex, religion, age, or national origin. The policy statement must
15-10 <plan shall> include:
15-11 (1) personnel policies that comply with Chapter 21,
15-12 Labor Code, including policies relating to recruitment, evaluation,
15-13 selection, appointment, training, and promotion of personnel;
15-14 (2) a comprehensive analysis of the commission
15-15 workforce that meets federal and state guidelines;
15-16 (3) procedures by which a determination can be made
15-17 about the extent of underuse in the commission workforce of all
15-18 persons for whom federal or state guidelines encourage a more
15-19 equitable balance; and
15-20 (4) reasonable methods to appropriately address the
15-21 underuse. <a comprehensive analysis of all the agency's workforce
15-22 by race, sex, ethnic origin, class of position, and salary or wage;>
15-23 <(2) plans for recruitment, evaluation, selection,
15-24 appointment, training, promotion, and other personnel policies;>
15-25 <(3) steps reasonably designed to overcome any
16-1 identified underutilization of minorities and women in the agency's
16-2 workforce; and>
16-3 <(4) objectives and goals, timetables for the
16-4 achievement of the objectives and goals, and assignments of
16-5 responsibility for their achievement.>
16-6 (c) The policy statement <plan> required under Subsection
16-7 (b) of this section must <shall be filed with the governor's office
16-8 within 60 days of the effective date of this Act,> cover an annual
16-9 period, <and> be updated at least annually and reviewed by the
16-10 Commission on Human Rights for compliance with Subsection (b)(1) of
16-11 this section, and<. Progress reports shall> be filed with
16-12 <submitted to> the governor's office <within 30 days of November 1
16-13 and April 1 of each year and shall include the steps the agency has
16-14 taken within the reporting period to comply with these
16-15 requirements>.
16-16 (d) The governor's office shall deliver a biennial report to
16-17 the legislature based on the information received under Subsection
16-18 (c) of this section. The report may be made separately or as a
16-19 part of other biennial reports made to the legislature.
16-20 SECTION 12. Section 1.031, Public Utility Regulatory Act of
16-21 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
16-22 Regular Session, 1995, is amended to read as follows:
16-23 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
16-24 the commission shall be located in the City of Austin, Texas, and
16-25 shall be open daily during the usual business hours, Saturdays,
17-1 Sundays, and legal holidays excepted. The commission shall hold
17-2 meetings at its office and at such other convenient places in the
17-3 state as shall be expedient and necessary for the proper
17-4 performance of its duties.
17-5 (b) The commission shall develop and implement policies that
17-6 provide the public with a reasonable opportunity to appear before
17-7 the commission and to speak on any issue under the jurisdiction of
17-8 the commission.
17-9 SECTION 13. Subsection (a), Section 1.035, Public Utility
17-10 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
17-11 74th Legislature, Regular Session, 1995, is amended to read as
17-12 follows:
17-13 (a) The commission shall prepare annually a complete and
17-14 detailed written report accounting for all funds received and
17-15 disbursed by the commission during the preceding fiscal year. The
17-16 annual report must meet the reporting requirements applicable to
17-17 financial reporting in the General Appropriations Act <publish an
17-18 annual report to the governor, summarizing its proceedings, listing
17-19 its receipts and the sources of its receipts, listing its
17-20 expenditures and the nature of such expenditures, and setting forth
17-21 such other information concerning the operations of the commission
17-22 and the public utility industry as it considers of general
17-23 interest>.
17-24 SECTION 14. Section 1.036, Public Utility Regulatory Act of
17-25 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
18-1 Regular Session, 1995, is amended to read as follows:
18-2 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
18-3 commission shall prepare information of public <consumer> interest
18-4 describing the <regulatory> functions of the commission and
18-5 <describing> the commission's procedures by which <consumer>
18-6 complaints are filed with and resolved by the commission. The
18-7 commission shall make the information available to the <general>
18-8 public and appropriate state agencies.
18-9 (b) The commission by rule shall establish methods by which
18-10 consumers and service recipients are notified of the name, mailing
18-11 address, and telephone number of the commission for the purpose of
18-12 directing complaints to the commission.
18-13 (c) The commission shall comply with federal and state laws
18-14 related to program and facility accessibility. The commission
18-15 shall also prepare and maintain a written plan that describes how a
18-16 person who does not speak English can be provided reasonable access
18-17 to the commission's programs and services.
18-18 SECTION 15. Section 1.051, Public Utility Regulatory Act of
18-19 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
18-20 Regular Session, 1995, is amended to read as follows:
18-21 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
18-22 independent Office of Public Utility Counsel represents the
18-23 interests of residential and small commercial consumers.
18-24 (b) The chief executive of the office <Office of Public
18-25 Utility Counsel> is the public utility counsel, hereinafter
19-1 referred to as counsellor. The counsellor is appointed by the
19-2 governor with the advice and consent of the senate to a two-year
19-3 term that expires on February 1 of the final year of the term.
19-4 Appointment of the counsellor shall be made without regard to the
19-5 race, color, disability, sex, religion, age, or national origin of
19-6 the appointee.
19-7 (c) The counsellor shall be a resident of Texas and admitted
19-8 to the practice of law in this state who has demonstrated a strong
19-9 commitment and involvement in efforts to safeguard the rights of
19-10 the public and possesses the knowledge and experience necessary to
19-11 practice effectively in utility proceedings.
19-12 (d) A person is not eligible for appointment as counsellor
19-13 if the person or the person's spouse:
19-14 (1) is employed by or participates in the management
19-15 of a business entity or other organization regulated by the
19-16 commission or receiving funds from the commission;
19-17 (2) owns or controls, directly or indirectly, more
19-18 than a 10 percent interest or a pecuniary interest with a value
19-19 exceeding $10,000 in:
19-20 (A) a business entity or other organization
19-21 regulated by the commission or receiving funds from the commission
19-22 or the office; or
19-23 (B) any utility competitor, utility supplier, or
19-24 other entity affected by a commission decision in a manner other
19-25 than by the setting of rates for that class of customer;
20-1 (3) uses or receives a substantial amount of tangible
20-2 goods, services, or funds from the commission or the office, other
20-3 than compensation or reimbursement authorized by law for counsellor
20-4 or commission membership, attendance, or expenses; or
20-5 (4) notwithstanding Subdivision (2) of this
20-6 subsection, has an interest in a mutual fund or retirement fund in
20-7 which more than 10 percent of the fund's holdings is in a single
20-8 utility, utility competitor, or utility supplier in this state and
20-9 the person does not disclose this information to the governor,
20-10 senate, or other entity, as appropriate.
20-11 (e) A person may not serve as counsellor or act as the
20-12 general counsel for the office if the person is required to
20-13 register as a lobbyist under Chapter 305, Government Code, because
20-14 of the person's activities for compensation related to the
20-15 operation of the commission or the office.
20-16 (f) An officer, employee, or paid consultant of a trade
20-17 association in the field of public utilities may not serve as
20-18 counsellor or be an employee of the office who is exempt from the
20-19 state's position classification plan or is compensated at or above
20-20 the amount prescribed by the General Appropriations Act for step 1,
20-21 salary group 17, of the position classification salary schedule. A
20-22 person who is the spouse of an officer, manager, or paid consultant
20-23 of a trade association in the field of public utilities may not
20-24 serve as counsellor and may not be an office employee who is exempt
20-25 from the state's position classification plan or is compensated at
21-1 or above the amount prescribed by the General Appropriations Act
21-2 for step 1, salary group 17, of the position classification salary
21-3 schedule.
21-4 (g) Notwithstanding any other provision of this Act, a
21-5 person otherwise ineligible because of the application of
21-6 Subsection (d)(2) of this section may be appointed as counsellor
21-7 and may serve as counsellor if the person:
21-8 (1) notifies the attorney general and commission that
21-9 the person is ineligible because of the application of Subsection
21-10 (d)(2) of this section; and
21-11 (2) divests the person or the person's spouse of the
21-12 ownership or control before appointment, or within a reasonable
21-13 time if the person is already serving at the time Subsection (d)(2)
21-14 of this section first applies to the person.
21-15 SECTION 16. Subtitle C, Title I, Public Utility Regulatory
21-16 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-17 Legislature, Regular Session, 1995, is amended by adding Section
21-18 1.0511 to read as follows:
21-19 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
21-20 removal from office if the counsellor:
21-21 (1) does not have at the time of appointment the
21-22 qualifications required by Section 1.051 of this Act;
21-23 (2) does not maintain during service as counsellor the
21-24 qualifications required by Section 1.051 of this Act;
21-25 (3) violates a prohibition established by Section
22-1 1.051 or 1.0512 of this Act; or
22-2 (4) cannot discharge the counsellor's duties for a
22-3 substantial part of the term for which the counsellor is appointed
22-4 because of illness or disability.
22-5 (b) The validity of an action of the office is not affected
22-6 by the fact that it is taken when a ground for removal of the
22-7 counsellor exists.
22-8 SECTION 17. Subtitle C, Title I, Public Utility Regulatory
22-9 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
22-10 Legislature, Regular Session, 1995, is amended by adding Section
22-11 1.0512 to read as follows:
22-12 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
22-13 (a) The counsellor may not within two years, and an employee of
22-14 the office may not, within one year after his employment with the
22-15 office has ceased, be employed by a public utility which was in the
22-16 scope of the counsellor's or employee's official responsibility
22-17 while the counsellor or employee was associated with the office.
22-18 (b) During the time the counsellor or an employee of the
22-19 office is associated with the office or at any time after, the
22-20 counsellor or employee may not represent a person, corporation, or
22-21 other business entity before the commission or a court in a matter
22-22 in which the counsellor or employee was personally involved while
22-23 associated with the office or a matter that was within the
22-24 counsellor's or employee's official responsibility while the
22-25 counsellor or employee was associated with the office.
23-1 SECTION 18. Subtitle C, Title I, Public Utility Regulatory
23-2 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
23-3 Legislature, Regular Session, 1995, is amended by adding Section
23-4 1.0513 to read as follows:
23-5 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
23-6 shall prepare annually a complete and detailed written report
23-7 accounting for all funds received and disbursed by the office
23-8 during the preceding fiscal year. The annual report must meet the
23-9 reporting requirements applicable to financial reporting provided
23-10 in the General Appropriations Act.
23-11 (b) The office shall prepare information of public interest
23-12 describing the functions of the office. The office shall make the
23-13 information available to the public and appropriate state agencies.
23-14 (c) The office shall comply with federal and state laws
23-15 related to program and facility accessibility. The office shall
23-16 also prepare and maintain a written plan that describes how a
23-17 person who does not speak English can be provided reasonable access
23-18 to the office's programs and services.
23-19 SECTION 19. Section 1.052, Public Utility Regulatory Act of
23-20 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
23-21 Regular Session, 1995, is amended to read as follows:
23-22 Sec. 1.052. INTEREST PROHIBITED. During the period of the
23-23 counsellor's employment and for a period of two years following the
23-24 termination of employment, it shall be unlawful for any person
23-25 employed as counsellor to have a direct or indirect interest in any
24-1 utility company regulated under this Act, to provide legal services
24-2 directly or indirectly to or be employed in any capacity by a
24-3 utility company regulated under this Act, its parent, or its
24-4 subsidiary companies, corporations, or cooperatives or a utility
24-5 competitor, utility supplier, or other entity affected in a manner
24-6 other than by the setting of rates for that class of customer; but
24-7 such person may otherwise engage in the private practice of law
24-8 after the termination of employment as counsellor.
24-9 SECTION 20. Section 1.053, Public Utility Regulatory Act of
24-10 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
24-11 Regular Session, 1995, is amended to read as follows:
24-12 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
24-13 lawyers, economists, engineers, consultants, statisticians,
24-14 accountants, clerical staff, and other employees as he or she deems
24-15 necessary to carry out the provisions of this section. All
24-16 employees shall receive such compensation as is fixed by the
24-17 legislature from the assessment imposed by Section 1.351 of this
24-18 Act.
24-19 (b) The counsellor or the counsellor's designee shall
24-20 develop an intra-agency career ladder program that addresses
24-21 opportunities for mobility and advancement for employees within the
24-22 commission. The program shall require intra-agency postings of all
24-23 positions concurrently with any public posting. The counsellor or
24-24 the counsellor's designee shall develop a system of annual
24-25 performance evaluations that are based on documented employee
25-1 performance. All merit pay for office employees must be based on
25-2 the system established under this subsection. The counsellor or
25-3 the counsellor's designee shall provide to the public utility
25-4 counsel and its employees, as often as necessary, information
25-5 regarding their qualification for office or employment under this
25-6 Act and their responsibilities under applicable laws relating to
25-7 standards of conduct for state officers or employees.
25-8 (c) The counsellor or the counsellor's designee shall
25-9 prepare and maintain a written policy statement to assure
25-10 implementation of a program of equal employment opportunity under
25-11 which all personnel transactions are made without regard to race,
25-12 color, disability, sex, religion, age, or national origin. The
25-13 policy statement must include:
25-14 (1) personnel policies that comply with Chapter 21,
25-15 Labor Code, including policies relating to recruitment, evaluation,
25-16 selection, appointment, training, and promotion of personnel;
25-17 (2) a comprehensive analysis of the office workforce
25-18 that meets federal and state guidelines;
25-19 (3) procedures by which a determination can be made
25-20 about the extent of underuse in the office workforce of all persons
25-21 for whom federal or state guidelines encourage a more equitable
25-22 balance; and
25-23 (4) reasonable methods to appropriately address the
25-24 underuse.
25-25 (d) A policy statement prepared under Subsection (c) of this
26-1 section must cover an annual period, be updated at least annually
26-2 and reviewed by the Commission on Human Rights for compliance with
26-3 Subsection (c)(1) of this section, and be filed with the governor's
26-4 office. The governor's office shall deliver a biennial report to
26-5 the legislature based on the information received under this
26-6 subsection. The report may be made separately or as a part of
26-7 other biennial reports made to the legislature.
26-8 (e) The office shall provide to its employees, as often as
26-9 necessary, information regarding their qualification for office or
26-10 employment under this Act and their responsibilities under
26-11 applicable laws relating to standards of conduct for state officers
26-12 or employees.
26-13 SECTION 21. Section 1.101, Public Utility Regulatory Act of
26-14 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
26-15 Regular Session, 1995, is amended to read as follows:
26-16 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
26-17 (a) The commission has the general power to regulate and supervise
26-18 the business of every public utility within its jurisdiction and to
26-19 do all things, whether specifically designated in this Act or
26-20 implied herein, necessary and convenient to the exercise of this
26-21 power and jurisdiction.
26-22 (b) The commission shall make and enforce rules reasonably
26-23 required in the exercise of its powers and jurisdiction, including
26-24 rules governing practice and procedure before the commission and,
26-25 as applicable, practice and procedure before the utility division
27-1 of the State Office of Administrative Hearings. The commission
27-2 shall adopt rules authorizing an administrative law judge to:
27-3 (1) limit the amount of time that a party may have to
27-4 present its case;
27-5 (2) limit the number of requests for information that
27-6 a party may make in a contested case;
27-7 (3) require a party to a contested case to identify
27-8 contested issues and facts before the hearing begins and to limit
27-9 cross-examination to only those issues and facts and to any new
27-10 issues that may arise as a result of the discovery process; or
27-11 (4) group parties, other than the office, that have
27-12 the same position on an issue to facilitate cross-examination on
27-13 that issue, provided that each party in a group is entitled to
27-14 present that party's witnesses for cross-examination during the
27-15 hearing.
27-16 (c) Rules adopted under Subsection (b) of this section must
27-17 ensure that all parties receive due process.
27-18 (d) The commission may call and hold hearings, administer
27-19 oaths, receive evidence at hearings, issue subpoenas to compel the
27-20 attendance of witnesses and the production of papers and documents,
27-21 and make findings of fact and decisions with respect to
27-22 administering the provisions of this Act or the rules, orders, or
27-23 other actions of the commission.
27-24 (e) Hearings in contested cases not conducted by one or more
27-25 commissioners shall be conducted by the utility division of the
28-1 State Office of Administrative Hearings. The <(d) Notwithstanding
28-2 any other provision of this Act or other law, in proceedings other
28-3 than those involving major rate changes, the> commission may
28-4 delegate to the utility division of the State Office of
28-5 Administrative Hearings <an administrative law judge or hearings
28-6 examiner> the authority to make a final decision and to issue
28-7 findings of fact, conclusions of law, and other necessary orders in
28-8 a proceeding in which there is no contested issue of fact or law.
28-9 The commission by rule shall define the procedures by which it
28-10 delegates final decision-making authority authorized by this
28-11 section. For review purposes the final decision of the
28-12 administrative law judge <or hearings examiner> has the same effect
28-13 as a final decision of the commission unless a commissioner
28-14 requests formal review of the decision.
28-15 SECTION 22. Subsection (b), Section 1.102, Public Utility
28-16 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
28-17 74th Legislature, Regular Session, 1995, is amended to read as
28-18 follows:
28-19 (b) The commission may audit each utility under the
28-20 jurisdiction of the commission as frequently as needed<, but shall
28-21 audit each utility at least once every 10 years>. Six months after
28-22 any audit, the utility shall report to the commission on the status
28-23 of the implementation of the recommendations of the audit and shall
28-24 file subsequent reports at such times as the commission deems
28-25 appropriate.
29-1 SECTION 23. Subtitle D, Title I, Public Utility Regulatory
29-2 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
29-3 Legislature, Regular Session, 1995, is amended by adding Section
29-4 1.104 to read as follows:
29-5 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
29-6 adopt procedures governing the use of settlements to resolve
29-7 contested cases.
29-8 (b) The rules shall ensure that:
29-9 (1) each party retains the right to:
29-10 (A) have a full hearing before the commission on
29-11 issues that remain in dispute; and
29-12 (B) judicial review of issues that remain in
29-13 dispute;
29-14 (2) an issue of fact raised by a nonsettling party
29-15 cannot be waived by a settlement or stipulation of the other
29-16 parties; and
29-17 (3) the nonsettling party may use the issue of fact
29-18 raised by that party as the basis for judicial review.
29-19 SECTION 24. Section 1.202, Public Utility Regulatory Act of
29-20 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
29-21 Regular Session, 1995, is amended to read as follows:
29-22 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
29-23 have the power to:
29-24 (1) require that public utilities report to it such
29-25 information relating to themselves and affiliated interests both
30-1 within and without the State of Texas as it may consider useful in
30-2 the administration of this Act;
30-3 (2) establish forms for all reports;
30-4 (3) determine the time for reports and the frequency
30-5 with which any reports are to be made;
30-6 (4) require that any reports be made under oath;
30-7 (5) require that a copy of any contract or arrangement
30-8 between any public utility and any affiliated interest be filed
30-9 with it. It may require any such contract or arrangement not in
30-10 writing to be reduced to writing and filed with it;
30-11 (6) require that a copy of any report filed with any
30-12 federal agency or any governmental agency or body of any other
30-13 state be filed with it; and
30-14 (7) require that a copy of annual reports showing all
30-15 payments of compensation (other than salary or wages subject to the
30-16 withholding of federal income tax) to residents of Texas, or with
30-17 respect to legal, administrative, or legislative matters in Texas,
30-18 or for representation before the Texas Legislature or any
30-19 governmental agency or body be filed with it.
30-20 (b) <The railroad commission shall have the power to review
30-21 and approve, for purposes of the Outer Continental Shelf Lands Act
30-22 Amendments of 1978 and any other federal authorities, applications
30-23 by gas utilities for the purchase of natural gas from producing
30-24 affiliates.>
30-25 <(c)> On the request of the governing body of any
31-1 municipality, the commission may provide sufficient staff members
31-2 to advise and consult with such municipality on any pending matter.
31-3 SECTION 25. Subsection (b), Section 1.251, Public Utility
31-4 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
31-5 74th Legislature, Regular Session, 1995, is amended to read as
31-6 follows:
31-7 (b) All transactions involving the sale of 50 percent or
31-8 more of the stock of a public utility shall also be reported to the
31-9 commission within a reasonable time. On the filing of a report
31-10 with the commission, the commission shall investigate the same with
31-11 or without public hearing to determine whether the action is
31-12 consistent with the public interest. In reaching its
31-13 determination, the commission shall take into consideration the
31-14 reasonable value of the property, facilities, or securities to be
31-15 acquired, disposed of, merged, transferred, or consolidated and
31-16 whether such a transaction will adversely affect the health or
31-17 safety of customers or employees, result in the transfer of jobs of
31-18 Texas citizens to workers domiciled outside the State of Texas, or
31-19 result in the decline of service, whether the public utility will
31-20 receive consideration equal to the reasonable value of the assets
31-21 when it sells, leases, or transfers assets, and whether the
31-22 transaction is consistent with the public interest.
31-23 SECTION 26. Subtitle I, Title I, Public Utility Regulatory
31-24 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
31-25 Legislature, Regular Session, 1995, is amended by adding Section
32-1 1.3215 to read as follows:
32-2 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
32-3 may impose an administrative penalty against a person regulated
32-4 under this Act who violates this Act or a rule or order adopted
32-5 under this Act.
32-6 (b) The penalty for a violation may be in an amount not to
32-7 exceed $5,000. Each day a violation continues or occurs is a
32-8 separate violation for purposes of imposing a penalty.
32-9 (c) The amount of the penalty shall be based on:
32-10 (1) the seriousness of the violation, including the
32-11 nature, circumstances, extent, and gravity of any prohibited acts,
32-12 and the hazard or potential hazard created to the health, safety,
32-13 or economic welfare of the public;
32-14 (2) the economic harm to property or the environment
32-15 caused by the violation;
32-16 (3) the history of previous violations;
32-17 (4) the amount necessary to deter future violations;
32-18 (5) efforts to correct the violation; and
32-19 (6) any other matter that justice may require.
32-20 (d) If the executive director determines that a violation
32-21 has occurred, the executive director may issue to the commission a
32-22 report that states the facts on which the determination is based
32-23 and the director's recommendation on the imposition of a penalty,
32-24 including a recommendation on the amount of the penalty.
32-25 (e) Within 14 days after the date the report is issued, the
33-1 executive director shall give written notice of the report to the
33-2 person. The notice may be given by certified mail. The notice
33-3 must include a brief summary of the alleged violation and a
33-4 statement of the amount of the recommended penalty and must inform
33-5 the person that the person has a right to a hearing on the
33-6 occurrence of the violation, the amount of the penalty, or both the
33-7 occurrence of the violation and the amount of the penalty. In
33-8 addition, the notice must inform the person that a penalty will not
33-9 be imposed if the violation was accidental or inadvertent and the
33-10 person has previously corrected the violation or corrects the
33-11 violation not later than the 30th day after the date the person
33-12 receives the notice under this subsection. The commission may not
33-13 impose a penalty under this section if the person has previously
33-14 corrected the violation or corrects the violation before the end of
33-15 the 30-day period. The person against whom the penalty may be
33-16 assessed has the burden of proving to the commission that the
33-17 person has corrected the violation and that the violation was
33-18 accidental or inadvertent.
33-19 (f) Within 20 days after the date the person receives the
33-20 notice, the person in writing may accept the determination and
33-21 recommended penalty of the executive director, may make a written
33-22 request for a hearing on the occurrence of the violation, the
33-23 amount of the penalty, or both the occurrence of the violation and
33-24 the amount of the penalty, or may notify the commission in writing
33-25 that the person has corrected or intends to correct the violation
34-1 as provided by Subsection (e) of this section and request a
34-2 hearing.
34-3 (g) If the person accepts the determination and recommended
34-4 penalty of the executive director, the commission by order shall
34-5 approve the determination and impose the recommended penalty.
34-6 (h) If the person requests a hearing or fails to respond
34-7 timely to the notice, the executive director shall set a hearing
34-8 and give notice of the hearing to the person. The hearing shall be
34-9 held by an administrative law judge of the State Office of
34-10 Administrative Hearings. The administrative law judge shall make
34-11 findings of fact and conclusions of law and promptly issue to the
34-12 commission a proposal for a decision about the occurrence of the
34-13 violation and the amount of a proposed penalty. Based on the
34-14 findings of fact, conclusions of law, and proposal for a decision,
34-15 the commission by order may find that a violation has occurred and,
34-16 if not corrected in accordance with Subsection (e) of this section,
34-17 impose a penalty or may find that no violation occurred.
34-18 (i) The notice of the commission's order given to the person
34-19 under Chapter 2001, Government Code, must include a statement of
34-20 the right of the person to judicial review of the order.
34-21 (j) Within 30 days after the date the commission's order is
34-22 final as provided by Section 2001.144, Government Code, the person
34-23 shall:
34-24 (1) pay the amount of the penalty;
34-25 (2) pay the amount of the penalty and file a petition
35-1 for judicial review contesting the occurrence of the violation, the
35-2 amount of the penalty, or both the occurrence of the violation and
35-3 the amount of the penalty; or
35-4 (3) without paying the amount of the penalty, file a
35-5 petition for judicial review contesting the occurrence of the
35-6 violation, the amount of the penalty, or both the occurrence of the
35-7 violation and the amount of the penalty.
35-8 (k) Within the 30-day period, a person who acts under
35-9 Subsection (j)(3) of this section may:
35-10 (1) stay enforcement of the penalty by:
35-11 (A) paying the amount of the penalty to the
35-12 court for placement in an escrow account; or
35-13 (B) giving to the court a supersedeas bond that
35-14 is approved by the court for the amount of the penalty and that is
35-15 effective until all judicial review of the commission's order is
35-16 final; or
35-17 (2) request the court to stay enforcement of the
35-18 penalty by:
35-19 (A) filing with the court a sworn affidavit of
35-20 the person stating that the person is financially unable to pay the
35-21 amount of the penalty and is financially unable to give the
35-22 supersedeas bond; and
35-23 (B) giving a copy of the affidavit to the
35-24 executive director by certified mail.
35-25 (l) The executive director, on receipt of a copy of an
36-1 affidavit under Subsection (k)(2) of this section, may file with
36-2 the court, within five days after the date the copy is received, a
36-3 contest to the affidavit. The court shall hold a hearing on the
36-4 facts alleged in the affidavit as soon as practicable and shall
36-5 stay the enforcement of the penalty on finding that the alleged
36-6 facts are true. The person who files an affidavit has the burden
36-7 of proving that the person is financially unable to pay the amount
36-8 of the penalty and to give a supersedeas bond.
36-9 (m) If the person does not pay the amount of the penalty and
36-10 the enforcement of the penalty is not stayed, the executive
36-11 director may refer the matter to the attorney general for
36-12 collection of the amount of the penalty.
36-13 (n) Judicial review of the order of the commission:
36-14 (1) is instituted by filing a petition as provided by
36-15 Subchapter G, Chapter 2001, Government Code; and
36-16 (2) is under the substantial evidence rule.
36-17 (o) If the court sustains the occurrence of the violation,
36-18 the court may uphold or reduce the amount of the penalty and order
36-19 the person to pay the full or reduced amount of the penalty. If
36-20 the court does not sustain the occurrence of the violation, the
36-21 court shall order that no penalty is owed.
36-22 (p) When the judgment of the court becomes final, the court
36-23 shall proceed under this subsection. If the person paid the amount
36-24 of the penalty and if that amount is reduced or is not upheld by
36-25 the court, the court shall order that the appropriate amount plus
37-1 accrued interest be remitted to the person. The rate of the
37-2 interest is the rate charged on loans to depository institutions by
37-3 the New York Federal Reserve Bank, and the interest shall be paid
37-4 for the period beginning on the date the penalty was paid and
37-5 ending on the date the penalty is remitted. If the person gave a
37-6 supersedeas bond and if the amount of the penalty is not upheld by
37-7 the court, the court shall order the release of the bond. If the
37-8 person gave a supersedeas bond and if the amount of the penalty is
37-9 reduced, the court shall order the release of the bond after the
37-10 person pays the amount.
37-11 (q) A penalty collected under this section shall be remitted
37-12 to the comptroller for deposit in the general revenue fund.
37-13 (r) All proceedings under this section are subject to
37-14 Chapter 2001, Government Code.
37-15 (s) The executive director may delegate to a person that the
37-16 executive director designates any power or duty given the executive
37-17 director by this section.
37-18 SECTION 27. Subsection (b), Section 1.351, Public Utility
37-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
37-20 74th Legislature, Regular Session, 1995, is amended to read as
37-21 follows:
37-22 (b) The legislature may <commission shall, subject to the
37-23 approval of the legislature,> adjust this assessment to provide a
37-24 level of income sufficient to fund the commission and the office of
37-25 public utility counsel.
38-1 SECTION 28. Section 1.354, Public Utility Regulatory Act of
38-2 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
38-3 Regular Session, 1995, is amended to read as follows:
38-4 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
38-5 FUND. (a) All fees, penalties, and interest paid under the
38-6 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
38-7 shall be collected by the comptroller of public accounts and paid
38-8 into the general revenue fund. <The commission shall notify the
38-9 comptroller of public accounts of any adjustment of the assessment
38-10 imposed in Section 1.351 when made.>
38-11 (b) All money paid to the commission or to the office under
38-12 this Act is subject to Subchapter F, Chapter 404, Government Code.
38-13 SECTION 29. Subtitle J, Title I, Public Utility Regulatory
38-14 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
38-15 Legislature, Regular Session, 1995, is amended by adding Section
38-16 1.357 to read as follows:
38-17 Sec. 1.357. GRANTS OF FEDERAL FUNDS. (a) The commission
38-18 may apply to any appropriate agency or officer of the United States
38-19 to receive and spend federal funds which it may obtain from grants
38-20 or other similar forms of financial assistance. Nothing in this
38-21 section shall inhibit the commission's ability to contract with or
38-22 otherwise receive assistance from any state, local, or other
38-23 authorized source of funds.
38-24 (b) Sections 403.094 and 403.095, Government Code, do not
38-25 apply to the special account established under this section.
39-1 SECTION 30. Subsections (a) and (b), Section 1.401, Public
39-2 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
39-3 the 74th Legislature, Regular Session, 1995, are amended to read as
39-4 follows:
39-5 (a) Any affected person may complain to the regulatory
39-6 authority in writing setting forth any act or thing done or omitted
39-7 to be done by any public utility in violation or claimed violation
39-8 of any law which the regulatory authority has jurisdiction to
39-9 administer or of any order, ordinance, rule, or regulation of the
39-10 regulatory authority. The commission shall keep <an> information
39-11 <file> about each complaint filed with the commission <relating to
39-12 a utility>. The commission shall retain the information <file> for
39-13 a reasonable period. The information shall include:
39-14 (1) the date the complaint is received;
39-15 (2) the name of the complainant;
39-16 (3) the subject matter of the complaint;
39-17 (4) a record of all persons contacted in relation to
39-18 the complaint;
39-19 (5) a summary of the results of the review or
39-20 investigation of the complaint; and
39-21 (6) for complaints for which the commission took no
39-22 action, an explanation of the reason the complaint was closed
39-23 without action.
39-24 (b) The commission shall keep a file about each <If a>
39-25 written complaint <is> filed with the commission. The commission
40-1 shall provide to the person filing the complaint and to the persons
40-2 or entities complained about the commission's policies and
40-3 procedures pertaining to complaint investigation and resolution.
40-4 The <relating to a utility, the> commission, at least <as
40-5 frequently as> quarterly and until final disposition of the
40-6 complaint, shall notify the person filing <parties to> the
40-7 complaint and each person or entity complained about of the status
40-8 of the complaint unless the notice would jeopardize an undercover
40-9 investigation.
40-10 SECTION 31. Subchapter C, Chapter 2003, Government Code, is
40-11 amended by adding Section 2003.047 to read as follows:
40-12 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
40-13 establish a utility division to perform the contested case hearings
40-14 for the Public Utility Commission of Texas as prescribed by the
40-15 Public Utility Regulatory Act of 1995 and other applicable law.
40-16 (b) The utility division shall conduct hearings relating to
40-17 contested cases before the commission, other than a hearing
40-18 conducted by one or more commissioners. The commission by rule may
40-19 delegate the responsibility to hear any other matter before the
40-20 commission if consistent with the duties and responsibilities of
40-21 the division.
40-22 (c) Only an administrative law judge in the utility division
40-23 may conduct a hearing on behalf of the commission. An
40-24 administrative law judge in the utility division may conduct
40-25 hearings for other state agencies as time allows. The office may
41-1 transfer an administrative law judge into the division on a
41-2 temporary or permanent basis and may contract with qualified
41-3 individuals to serve as temporary administrative law judges as
41-4 necessary.
41-5 (d) To be eligible to preside at a hearing, an
41-6 administrative law judge, regardless of temporary or permanent
41-7 status, must be licensed to practice law in this state and have not
41-8 less than five years of general experience or three years of
41-9 experience in utility regulatory law.
41-10 (e) At the time the office receives jurisdiction of a
41-11 proceeding, the commission shall provide to the administrative law
41-12 judge a list of issues or areas that must be addressed. In
41-13 addition, the commission may identify and provide to the
41-14 administrative law judge at any time additional issues or areas
41-15 that must be addressed.
41-16 (f) The office and the commission shall jointly adopt rules
41-17 providing for certification to the commission of an issue that
41-18 involves an ultimate finding of compliance with or satisfaction of
41-19 a statutory standard the determination of which is committed to the
41-20 discretion or judgment of the commission by law. The rules must
41-21 address, at a minimum, the issues that are appropriate for
41-22 certification and the procedure to be used in certifying the issue.
41-23 Each agency shall publish the jointly adopted rules.
41-24 (g) Notwithstanding Section 2001.058, the commission may
41-25 change a finding of fact or conclusion of law made by the
42-1 administrative law judge or vacate or modify an order issued by the
42-2 administrative law judge only if the commission:
42-3 (1) determines that the administrative law judge:
42-4 (A) did not properly apply or interpret
42-5 applicable law, commission rules or policies, or prior
42-6 administrative decisions; or
42-7 (B) issued a finding of fact that is not
42-8 supported by a preponderance of the evidence; or
42-9 (2) determines that a commission policy or a prior
42-10 administrative decision on which the administrative law judge
42-11 relied is incorrect or should be changed.
42-12 (h) The commission shall state in writing the specific
42-13 reason and legal basis for its determination under Subsection (g).
42-14 (i) An administrative law judge, on the judge's own motion
42-15 or on motion of a party and after notice and an opportunity for a
42-16 hearing, may impose appropriate sanctions as provided by Subsection
42-17 (j) against a party or its representative for:
42-18 (1) filing a motion or pleading that is groundless and
42-19 brought:
42-20 (A) in bad faith;
42-21 (B) for the purpose of harassment; or
42-22 (C) for any other improper purpose, such as to
42-23 cause unnecessary delay or needless increase in the cost of the
42-24 proceeding;
42-25 (2) abuse of the discovery process in seeking, making,
43-1 or resisting discovery; or
43-2 (3) failure to obey an order of the administrative law
43-3 judge or the commission.
43-4 (j) A sanction imposed under Subsection (i) may include, as
43-5 appropriate and justified, issuance of an order:
43-6 (1) disallowing further discovery of any kind or of a
43-7 particular kind by the offending party;
43-8 (2) charging all or any part of the expenses of
43-9 discovery against the offending party or its representative;
43-10 (3) holding that designated facts be deemed admitted
43-11 for purposes of the proceeding;
43-12 (4) refusing to allow the offending party to support
43-13 or oppose a designated claim or defense or prohibiting the party
43-14 from introducing designated matters in evidence;
43-15 (5) disallowing in whole or in part requests for
43-16 relief by the offending party and excluding evidence in support of
43-17 such requests;
43-18 (6) punishing the offending party or its
43-19 representative for contempt to the same extent as a district court;
43-20 (7) requiring the offending party or its
43-21 representative to pay, at the time ordered by the administrative
43-22 law judge, the reasonable expenses, including attorney's fees,
43-23 incurred by other parties because of the sanctionable behavior; and
43-24 (8) striking pleadings or testimony, or both, in whole
43-25 or in part, or staying further proceedings until the order is
44-1 obeyed.
44-2 (k) Hearings conducted for the commission by the office
44-3 shall be held in hearing rooms provided by the commission. The
44-4 commission shall also provide the utility division access to its
44-5 computer systems, databases, and library resources.
44-6 (l) The office shall charge the commission a fixed annual
44-7 fee rather than an hourly rate for services rendered by the utility
44-8 division to the commission. The office and the commission shall
44-9 negotiate the amount of the fixed fee biennially, subject to the
44-10 approval of the governor, to coincide with the commission's
44-11 legislative appropriations request.
44-12 SECTION 32. (a) A task force is established to administer
44-13 the transfer of the hearings division from the Public Utility
44-14 Commission of Texas to the State Office of Administrative Hearings.
44-15 The task force is composed of:
44-16 (1) the governor or the governor's designee;
44-17 (2) the Legislative Budget Board or the board's
44-18 designee;
44-19 (3) the chairman of the Public Utility Commission of
44-20 Texas;
44-21 (4) the public utility counsel; and
44-22 (5) the chief administrative law judge of the State
44-23 Office of Administrative Hearings.
44-24 (b) The governor or the governor's designee is the presiding
44-25 officer of the task force.
45-1 (c) The task force shall:
45-2 (1) determine the personnel, equipment, data,
45-3 facilities, and other items that will be transferred under this Act
45-4 and the schedule for the transfers; and
45-5 (2) mediate and resolve disputes between the
45-6 respective agencies relating to a transfer.
45-7 (d) After the transfers have been completed, the task force
45-8 shall prepare a written report detailing the specifics of the
45-9 transfers and shall submit the report to the governor and the
45-10 legislature.
45-11 (e) In determining a transfer under this Act, the task force
45-12 shall ensure that the transfer does not adversely affect a
45-13 proceeding before the Public Utility Commission of Texas or the
45-14 rights of the parties to the proceeding.
45-15 (f) This section takes effect immediately.
45-16 SECTION 33. (a) On September 1, 1995, all personnel,
45-17 including hearings examiners and administrative law judges,
45-18 equipment, data, facilities, and other items of the hearings
45-19 division of the Public Utility Commission of Texas, other than the
45-20 personnel, equipment, data, facilities, and other items of the
45-21 central records office, are transferred to the utility division of
45-22 the State Office of Administrative Hearings. Until September 1,
45-23 1996, an employee transferred to the utility division may be
45-24 terminated or subject to salary reduction only for cause and only
45-25 in relation to poor performance or unacceptable conduct. A
46-1 hearings examiner transferred to the State Office of Administrative
46-2 Hearings becomes an administrative law judge on the date of
46-3 transfer.
46-4 (b) A hearings examiner or administrative law judge
46-5 transferred from the Public Utility Commission of Texas to the
46-6 State Office of Administrative Hearings shall continue to hear any
46-7 case assigned to the person as if the transfer had not occurred.
46-8 (c) The changes in law made by this Act that relate to the
46-9 procedures governing a hearing before the utility division of the
46-10 State Office of Administrative Hearings apply only to a case that
46-11 is filed on or after September 1, 1995. In addition, the
46-12 procedures prescribed by the provisions amended by this Act shall
46-13 continue to be used in a hearing as those provisions existed on
46-14 August 31, 1995. The former law is continued in effect for those
46-15 purposes.
46-16 (d) The Public Utility Commission of Texas is not required
46-17 by this Act or amendments made by this Act to adopt new rules
46-18 governing practice and procedure before the Public Utility
46-19 Commission of Texas or the utility division of the State Office of
46-20 Administrative Hearings. The rules in effect on the effective date
46-21 of this Act remain in effect until amended or repealed as required
46-22 by law. Any rules adopted after the effective date of this Act
46-23 governing practice and procedure before the utility division of the
46-24 State Office of Administrative Hearings must be adopted jointly by
46-25 that office and the commission.
47-1 SECTION 34. Section 1.3215, Public Utility Regulatory Act of
47-2 1995, as added by this Act, applies only to a violation committed
47-3 on or after the effective date of this Act. A violation committed
47-4 before the effective date of this Act is governed by the law in
47-5 effect when the violation occurred, and that law is continued in
47-6 effect for that purpose.
47-7 SECTION 35. Section 1.104, Public Utility Regulatory Act of
47-8 1995, as added by this Act, applies only to a proceeding for which
47-9 a final order has not been issued before the effective date of this
47-10 Act and does not apply to an electric utility merger proceeding
47-11 filed before January 1, 1995, in which a final order has not been
47-12 issued. Except as otherwise provided by this section, on or after
47-13 the effective date of this Act, the Public Utility Commission of
47-14 Texas may not approve a settlement unless the settlement has been
47-15 reached in accordance with rules adopted under Section 1.104,
47-16 Public Utility Regulatory Act of 1995, as added by this Act.
47-17 SECTION 36. The changes in law made by this Act relating to
47-18 the requirements for membership on the Public Utility Commission of
47-19 Texas, to the requirements for service as public utility counsel,
47-20 or to employment as executive director or general counsel of the
47-21 commission apply only to a person appointed or hired, as
47-22 appropriate, on or after the effective date of this Act and do not
47-23 affect the entitlement of a member serving on the commission on
47-24 August 31, 1995, to continue to hold office for the remainder of
47-25 the term for which the person was appointed or the ability of a
48-1 person serving as public utility counsel, executive director, or
48-2 general counsel on August 31, 1995, to continue to hold that
48-3 position.
48-4 SECTION 37. Except as otherwise provided by this Act, this
48-5 Act takes effect September 1, 1995.
48-6 SECTION 38. The importance of this legislation and the
48-7 crowded condition of the calendars in both houses create an
48-8 emergency and an imperative public necessity that the
48-9 constitutional rule requiring bills to be read on three several
48-10 days in each house be suspended, and this rule is hereby suspended,
48-11 and that this Act take effect and be in force according to its
48-12 terms, and it is so enacted.