By Seidlits 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 ARTICLE 1
1-7 SECTION 1.01. Section 1.002 of the Public Utility Regulatory
1-8 Act of 1995 (citation) is amended to read as follows:
1-9 Sec. 1.002. LEGISLATIVE POLICY AND PURPOSE. This Act is
1-10 enacted to protect the public interest inherent in the rates and
1-11 services of public utilities. The legislature finds that public
1-12 utilities are by definition monopolies in many of the areas they
1-13 serve; that therefore the normal forces of competition which
1-14 operate to regulate prices in a free enterprise society do not
1-15 always operate; and that therefore utility rates, operations and
1-16 services are regulated by public agencies where competition does
1-17 not operate, with the objective that this regulation shall operate
1-18 as a substitute for competition. The purpose of this Act is to
1-19 establish a comprehensive regulatory system which is adequate to
1-20 the task of regulating public utilities as defined by this Act
1-21 where the forces of competition do not operate, to assure rates,
1-22 operations, and services which are just and reasonable to the
1-23 consumers and to the utilities. Principles embodied in this Act
2-1 recognize that wholesale electric service is becoming more
2-2 competitive. While retail electric service maintains the
2-3 attributes that make regulation of monopolies appropriate, the
2-4 public interest warrants regulation that permits flexibility for
2-5 retail electric utilities.
2-6 SECTION 1.02. Section 1.003 of the Public Utility Regulatory
2-7 Act of 1995 (citation) is amended by amending Subsections (14) and
2-8 (16) and adding (18) to read as follows:
2-9 (14) "Rate," means and includes every compensation,
2-10 tariff, charge, fare, toll, rental, and classification, or any of
2-11 them demanded, observed, charged, or collected whether directly or
2-12 indirectly by any public utility for any service, product, or
2-13 commodity described in the definition of "utility" in Section 2.001
2-14 or 3.001 of this Act, and any rules, regulations, practices, or
2-15 contracts affecting any such compensation, tariff, charge, fare,
2-16 toll, rental, or classification, that must be approved by a
2-17 regulatory authority. Prices as defined in Section 2.001 of this
2-18 Act that are charged to individual customers for retail electric
2-19 service shall not be considered a "rate."
2-20 (16) "Service" is used in this Act in its broadest and
2-21 most inclusive sense, and includes any and all acts done, rendered,
2-22 or performed and any and all things furnished or supplied, and any
2-23 and all facilities used, furnished, or supplied by public utilities
2-24 in the performance of their duties under this Act to their patrons,
2-25 employees, <other public utilities,> and the public, as well as the
3-1 interchange of facilities between two or more of them; provided
3-2 that "service" shall not include any sale of electricity for resale
3-3 and any activities provided in connection with such sale, except
3-4 that the term "service" shall include voluntary transmission
3-5 wheeling services to the extent that such transmission wheeling
3-6 services are not regulated by the Federal Energy Regulatory
3-7 Commission. The term does not include the printing, distribution,
3-8 or sale of advertising in telephone directories.
3-9 (18) "Trade association means a nonprofit,
3-10 cooperative, and voluntarily joined association of business or
3-11 professional persons who are employed by public utilities or
3-12 utility competitors to assist the public utility industry, a
3-13 utility competitor, or the industry's or competitor's employees in
3-14 dealing with mutual business or professional problems and in
3-15 promoting their common interest.
3-16 SECTION 1.03. Section 1.005, Public Utility Regulatory Act
3-17 of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
3-18 Regular Session, 1995, is amended to read as follows:
3-19 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
3-20 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
3-21 to all proceedings under this Act except to the extent inconsistent
3-22 with this Act. Communications of members and employees of the
3-23 commission with a party, a party's representative, or other persons
3-24 are governed by Section 2001.061, Government Code.
3-25 (b) The commission is subject to Chapter 551, Government
4-1 Code.
4-2 SECTION 1.04. Subtitle A, Title I, Public Utility Regulatory
4-3 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
4-4 Regular Session, 1995, is amended by adding Section 1.006 to read
4-5 as follows:
4-6 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
4-7 MANNER OTHER THAN SETTING OF RATES. In this Act, an entity,
4-8 utility competitor, or utility supplier is considered to be
4-9 affected in a manner other than by the setting of rates for that
4-10 class or customer, if during a relevant calendar year the entity
4-11 provides fuel, utility related goods, utility-related products, or
4-12 utility related services to a regulated or unregulated provider of
4-13 telecommunications or electric services or to an affiliated
4-14 interest in an amount equal to the greater of $10,000 or 10 percent
4-15 of the persons business.
4-16 SECTION 1.05. Section 1.021 of the Public Utility Regulatory
4-17 Act of 1995 (citation) is amended by adding amending Subsections
4-18 (c) and (d) to read as follows:
4-19 (c) The governor shall designate a member of the commission
4-20 as the chairman of the commission to serve in that capacity at the
4-21 pleasure of the governor <At its first meeting following the
4-22 biennial appointment and qualification of a commissioner, the
4-23 commission shall elect one of the commissioners chairman>.
4-24 (d) Appointments to the commission shall be made without
4-25 regard to the race, color, handicap <creed>, sex, religion, age, or
5-1 national origin of the appointees.
5-2 SECTION 1.06. Section 1.022 of the Public Utility Regulatory
5-3 Act of 1995 (citation) is amended to read as follows:
5-4 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
5-5 of Texas and the Office of Public Utility Counsel are subject to
5-6 Chapter 325, Government Code (Texas Sunset Act). Unless continued
5-7 in existence as provided by that chapter, the commission and the
5-8 office are abolished and this Act expires September 1, 2005 <1995>.
5-9 SECTION 1.07. Section 1.023 of the Public Utility Regulatory
5-10 Act of 1995 (citation) is amended to read as follows:
5-11 (a) To be eligible for appointment as a commissioner, a
5-12 person must be a qualified voter<, not less than 30 years of age>,
5-13 a citizen of the United States, and a resident of the State of
5-14 Texas and a representative of the general public.
5-15 (b) Each commissioner shall qualify for office by taking the
5-16 oath prescribed for other state officers <and shall execute a bond
5-17 for $5,000 payable to the state and conditioned on the faithful
5-18 performance of his duties>.
5-19 (c) A person is not eligible for appointment as a
5-20 commissioner if at any time during the two-year period immediately
5-21 preceding his appointment he personally served as an officer,
5-22 director, owner, employee, partner, or legal representative of any
5-23 public utility, <or any> affiliated interest, or direct competitor
5-24 of a public utility, or he owned or controlled, directly or
5-25 indirectly, stocks or bonds of any class with a value of $10,000 or
6-1 more in a public utility, <or any> affiliated interest, or direct
6-2 competitor of a public utility.
6-3 (d) A person who is required to register as a lobbyist under
6-4 Chapter 305, Government Code, because of the person's activities
6-5 for compensation on behalf of a profession related to the operation
6-6 of the commission may not serve as a member of the commission or
6-7 public utility counsel or act as the general counsel to the
6-8 commission.
6-9 (e) A person is not eligible for appointment as a public
6-10 member of the commission or for employment as the general counsel
6-11 or executive director of the commission if:
6-12 (1) the person serves on the board of directors of a
6-13 company that supplies fuel, utility-related services, or
6-14 utility-related products to regulated or unregulated electric or
6-15 telecommunications utilities; or
6-16 (2) the person or the person's spouse:
6-17 (A) is employed by or participates in the
6-18 management of a business entity or other organization regulated by
6-19 the commission or receiving funds from the commission;
6-20 (B) owns or controls, directly or indirectly,
6-21 more than a 10 percent interest or a pecuniary interest with a
6-22 value $10,000 in:
6-23 (i) a business entity or other
6-24 organization regulated by the commission or receiving funds from
6-25 the commission; or
7-1 (ii) any utility competitor, utitlity
7-2 supplier, or other entity affected by a commission decision in a
7-3 manner other than by the setting of rates for that class of
7-4 customer;
7-5 (C) uses or receives a substantial amount of
7-6 tangible goods, services, or funds from the commission, other than
7-7 compensation or reimbursement authorized by law for commission
7-8 membership, attendance, or expenses; or
7-9 (D) notwithstanding Paragraph (B) of this
7-10 subdivision, has an interest in a mutual fund or retirement fund in
7-11 which more than 10 percent of the fund's holdings at the time of
7-12 appointment is in a single utility, utility competitor, or utility
7-13 supplier in this state and the person does not disclose this
7-14 information to the governor, senate, commission, or other entity,
7-15 as appropriate.
7-16 (f) Notwithstanding any other provision of this Act, a
7-17 person otherwise ineligible because of the application of Paragraph
7-18 (B) of Subdivision (2) of Subsection (g) of this section may be
7-19 appointed to the commission and serve as a commissioner or may be
7-20 employed as the general counsel or executive director if the
7-21 person:
7-22 (1) notifies the attorney general and commission that
7-23 the person is ineligible because of the application of Paragraph
7-24 (B) of Subdivision (2) of Subsection (g) of this section; and
7-25 (2) divests the person or the person's spouse of the
8-1 ownership or control before beginning service or employment, or
8-2 within a reasonable time if the person is already serving or
8-3 employed at the time Paragraph (B) of Subdivision (2) of Subsection
8-4 (g) of this section first applies to the person.
8-5 (g) An officer, employee, or paid consultant of a trade
8-6 association in the field of public utilities may not be a member or
8-7 employee of the commission who is exempt from the state's position
8-8 classification plan or is compensated at or above the amount
8-9 prescribed by the General Appropriations Act for step 1, salary
8-10 group 17, of the position classification salary schedule.
8-11 (h) A person who is a spouse of an officer, manager, or paid
8-12 consultant of a trade association in the field of public utilities
8-13 may not be a commission member and may not be a commission employee
8-14 who is exempt from the state's position classification plan or is
8-15 compensated at or above the amount prescribed by the General
8-16 Appropriations Act for step 1, salary group 17, of the position
8-17 classification salary schedule.
8-18 SECTION 1.07. Section 1.024 of the Public Utility Regulatory
8-19 Act of 1995 (citation) is amended to read as follows:
8-20 (a) A commissioner or employee of the commission may not do
8-21 any of the following during his period of service with the
8-22 commission:
8-23 (1) have any pecuniary interest, either as an officer,
8-24 director, partner, owner, employee, attorney, consultant, or
8-25 otherwise, in any public utility or affiliated interest, or in any
9-1 person or corporation or other business entity a significant
9-2 portion of whose business consists of furnishing goods or services
9-3 to public utilities or affiliated interests, but not including a
9-4 nonprofit group or association solely supported by gratuitous
9-5 contributions of money, property or services, other than a trade
9-6 association.;
9-7 (2) own or control any securities in a public utility,
9-8 <or> affiliated interest, or direct competitor of a public utility,
9-9 either directly or indirectly; or
9-10 (3) accept any gift, gratuity, or entertainment
9-11 whatsoever from any public utility, <or> affiliated interest, or
9-12 direct competitor of a public utility, or from any person,
9-13 corporation, agent, representative, employee, or other business
9-14 entity a significant portion of whose business consists of
9-15 furnishing goods or services to public utilities <or> affiliated
9-16 interest, or direct competitor of a public utility; provided,
9-17 however, that the receipt and acceptance of any gifts, gratuities,
9-18 or entertainment after termination of service with the commission
9-19 whose cumulative value in any one-year period is less than $100
9-20 does not constitute a violation of this Act.
9-21 (d) A public utility, <or> affiliated interest, or direct
9-22 competitor of a public utility, or any person, corporation, firm,
9-23 association, or business that furnishes goods or services to any
9-24 public utility, <or> affiliated interest, or direct competitor of a
9-25 public utility, or any agent, representative, attorney, employee,
10-1 officer, owner, director, or partner of any public utility, <or>
10-2 affiliated interest, or direct competitor of a public utility, or
10-3 any person, corporation, firm, association, or business furnishing
10-4 goods or services to any public utility, <or> affiliated interest,
10-5 or utility competitor may not give, or offer to give, any gift,
10-6 gratuity, employment, or entertainment whatsoever to any member or
10-7 employee of the commission except as allowed by Subdivision (3) of
10-8 Subsection (a) of this section, nor may any such public utility or
10-9 affiliated interest or any such person, corporation, firm,
10-10 association, or business aid, abet, or participate with any member,
10-11 employee, or former employee of the commission in any activity or
10-12 conduct that would constitute a violation of this subsection or
10-13 Subdivision (3) of Subsection (a) of this section.
10-14 (e) It is not a violation of this section if a member of the
10-15 commission or a person employed by the commission, upon becoming
10-16 the owner of any stocks or bonds or other pecuniary interest in a
10-17 public utility, affiliated interest, or direct competitor of a
10-18 public utility <under the jurisdiction of the commission> otherwise
10-19 than voluntarily, informs the commission and the attorney general
10-20 of such ownership and divests himself of the ownership or interest
10-21 within a reasonable time. In this section, a "pecuniary interest"
10-22 includes income, compensation and payment of any kind, in addition
10-23 to ownership interests. It is not a violation of this section if
10-24 such a pecuniary interest is held indirectly by ownership of an
10-25 interest in a retirement system, institution, or fund which in the
11-1 normal course of business invests in diverse securities
11-2 independently of the control of the commissioner or employee.
11-3 SECTION 1.08. Section 1.025 of the Public Utility Regulatory
11-4 Act of 1995 (citation) is amended to read as follows:
11-5 Sec. 1.025. PROHIBITION ON EMPLOYMENT OR REPRESENTATION.
11-6 (a) A commissioner may not within two years, and an employee of
11-7 the commission or of the State Office of Administrative Hearings
11-8 involved in hearing utility cases may not, within one year after
11-9 his employment with the commission or the State Office of
11-10 Administrative Hearings has ceased, be employed by:
11-11 (1) a public utility or affiliate, which was in the
11-12 scope of the commissioner's or employee's official responsibility
11-13 while the commissioner or employee was associated with the
11-14 commission or the State Office of Administrative Hearings; or<.>
11-15 (2) a utility competitor, utility supplier, or other
11-16 entity affected in a manner other than by the setting of rates for
11-17 that class of customer..
11-18 (b) During the time a commissioner or employee of the
11-19 commission or of the State Office of Administrative Hearings
11-20 involved in hearing utility cases is associated with the commission
11-21 or the State Office of Administrative Hearings or at any time
11-22 after, the commissioner or employee may not represent a person,
11-23 corporation, or other business entity before the commission or a
11-24 court in a matter in which the commissioner or employee was
11-25 personally involved while associated with the commission or the
12-1 State Office of Administrative Hearings or a matter that was within
12-2 the commissioner's or employee's official responsibility while the
12-3 commissioner or employee was associated with the commission or the
12-4 State Office of Administrative Hearings.
12-5 (c) The commission shall provide to <require> its members
12-6 and employees, to read this section and Section 1.024 of this Act
12-7 and) as often as necessary shall provide information regarding
12-8 their qualification for office or employment under this Act and
12-9 their responsibilities under applicable laws relating to standards
12-10 of conduct for state officers and employees.
12-11 SECTION 1.09. Section 1.026 of the Public Utility Regulatory
12-12 Act of 1995 (citation) is amended to read as follows:
12-13 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS. (a)
12-14 It is a ground for removal from the commission if a member:
12-15 (1) does not have at the time of appointment the
12-16 qualifications required by Section 1.023 of this Act; <for
12-17 appointment to the commission; or>
12-18 (2) does not maintain during <the> service on the
12-19 commission the qualifications required by Section 1.023 of this Act
12-20 <for appointment to the commission>;
12-21 (3) violates a prohibition established by Sections
12-22 1.023, 1.024 or 1.025 of this Act;
12-23 (4) cannot discharge the member's duties for a
12-24 substantial part of the term for which the member is appointed
12-25 because of illness or disability; or
13-1 (5) is absent from more than half of the regularly
13-2 scheduled commission meetings that the member is eligible to attend
13-3 during a calendar year unless the absence is excused by majority
13-4 vote of the commission.
13-5 (b) The validity of an action of the commission is not
13-6 affected by the fact that it is <was> taken when a ground for
13-7 removal of a commission member exists <of the commission existed>.
13-8 (c) If the executive director has knowledge that a potential
13-9 ground for removal exists, the executive director shall notify the
13-10 governor and the attorney general that a potential ground for
13-11 removal exists.
13-12 (d) Before a member of the commission may assume the
13-13 member's duties and before the member may be confirmed by the
13-14 senate, the member must complete at least one course of the
13-15 training program established under this section.
13-16 (e) A training program established under this section shall
13-17 provide information to the member regarding:
13-18 (1) the enabling legislation that created the
13-19 commission and its policymaking body to which the member is
13-20 appointed to serve;
13-21 (2) the programs operated by the commission;
13-22 (3) the role and function of the commission;
13-23 (4) the rules and the commission with an emphasis on
13-24 the rules that relate to disciplinary and investigatory authority;
13-25 (5) the current budget for the commission;
14-1 (6) the results of the most recent formal audit of the
14-2 commission;
14-3 (7) the requirements of Chapter 551, 552, and 2001,
14-4 Government Code;
14-5 (8) the requirements of the conflict of interest laws
14-6 and other laws relating to public officials; and
14-7 (9) any applicable ethics policies adopted by the
14-8 Texas Ethics Commission.
14-9 SECTION 1.10. Section 1.028, Public Utility Regulatory Act
14-10 of 1995 (citation) is amended to read as follows:
14-11 (a) The commission shall employ an executive director, a
14-12 general counsel, and such other officers, <administrative law
14-13 judges, hearing examiners, investigators, lawyers, engineers,
14-14 economists, consultants, statisticians, accountants, administrative
14-15 assistants, inspectors, clerical staff>, and other employees as it
14-16 deems necessary to carry out the provisions of this Act. All
14-17 employees receive such compensation as is fixed by the legislature.
14-18 The commission shall develop and implement policies that clearly
14-19 define the respect responsibilities of the commission and the staff
14-20 of the commission.
14-21 (b) The executive director is responsible for the day-to-day
14-22 operations of the commission and shall coordinate the activities of
14-23 commission employees The executive director shall coordinate with
14-24 the general counsel in providing assistance and technical advice to
14-25 the commissioners in evaluating the evidence and recommendations
15-1 offered by the utility division of the State office of
15-2 Administrative Hearings. <The commission shall employ the
15-3 following>.
15-4 <(1) an executive director;>
15-5 <(2) a director of hearings who has wide experience in
15-6 utility regulation and rate determination;>
15-7 <(3) a chief engineer who is a registered engineer and
15-8 an expert in public utility engineering and rate matters;>
15-9 <(4) a chief accountant who is a certified public
15-10 accountant, experienced in public utility accounting;>
15-11 <(5) a director of research who is experienced in the
15-12 conduct of analyses of industry, economics, energy, fuel, and other
15-13 related matters that the commission may want to undertake;>
15-14 <(6) a director of consumer affairs and public
15-15 information;>
15-16 <(7) a director of utility evaluation;>
15-17 <(8) a director of energy conservation; and>
15-18 <(9) a general counsel;>
15-19 <(e) The commission shall employ administrative law judges
15-20 to prescribe at hearings of major importance before the commission.
15-21 An administrative law judge must be a licensed attorney with not
15-22 less than years' general experience or three years experience in
15-23 utility regulatory law. The administrative law judge shall perform
15-24 his duties independently from the commission.>
15-25 SECTION 1.11. Section 1.029 of the Public Utility Regulatory
16-1 Act of 1995 (citation) is amended to read as follows:
16-2 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
16-3 or the executive director's <his> designee shall develop an
16-4 intra-agency career ladder program that addresses opportunities for
16-5 mobility and advancement for employees of the commission. The
16-6 program shall require intra-agency posting of all non-entry-level
16-7 positions concurrently with any public posting <, one part of which
16-8 shall be the intraagency posting of all nonentry level positions
16-9 for at least 10 days before>. The executive director or the
16-10 executive director's <his> designee shall develop a system of
16-11 annual performance evaluations that are based on documented
16-12 employee performance. <measurable job tasks>. All merit pay for
16-13 commission employees must be based on the system established under
16-14 this section.
16-15 (b) The executive director or the executive director's
16-16 <his/her> designee shall prepare and maintain a written policy
16-17 statement <plan> to assure implementation of a program of equal
16-18 employment opportunity under which <whereby> all personnel
16-19 transactions are made without regard to race, color, handicap
16-20 <disability>, sex, religion, age, or national origin. The policy
16-21 statement must <plans shall> include:
16-22 (1) personnel policies, including policies relating to
16-23 recruitment, evaluation, selection, appointment, training, and
16-24 promotion of personnel <a comprehensive analysis of all the
16-25 agency's work force by race, sex, ethnic origin, class of position,
17-1 and salary or wage>;
17-2 (2) a comprehensive analysis of the commission work
17-3 force that meets federal and state guidelines <plans for
17-4 recruitment, evaluation, selection, appointment, training,
17-5 promotion, and other personnel policies>;
17-6 (3) procedures by which a determination can be made of
17-7 significant underutilization in the commission work force of all
17-8 persons for whom federal or state guidelines encourage a more
17-9 equitable balance <steps reasonably designed to overcome any
17-10 identified underutilization of minorities and women in the agency's
17-11 work force>; and
17-12 (4) reasonable methods to address those areas of
17-13 significant underutilization appropriately.
17-14 (c) The policy statement <plan> prepared under Subsection
17-15 (b) of this section must <shall be filed with the governor's office
17-16 within 60 days of the effective date of this Act,> cover an annual
17-17 period, <and> be updated at least annually, and be reviewed by the
17-18 Commission on Human Rights for compliance with Subsection (b)(1) of
17-19 this section, and<. Progress reports shall> be filed with
17-20 <submitted to> the governor's office <within 30 days of November 1
17-21 and April 1 of each year and shall include the steps the agency has
17-22 taken within the reporting period to comply with these
17-23 requirements>.
17-24 (d) The governor's office shall deliver a biennial report to
17-25 the legislature based on the information received under Subsection
18-1 (c) of this section. The report may be made separately or as a
18-2 part of other biennial reports made to the legislature.
18-3 SECTION 1.12. Section 1.031 of the Public Utility Regulatory
18-4 Act of 1995 (citation) is amended to read as follows:
18-5 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
18-6 the commission shall be located in the city of Austin, Texas, and
18-7 shall be open daily during the usual business hours, Saturdays,
18-8 Sundays, and legal holidays excepted. The commission shall hold
18-9 meetings at its office and at such other convenient places in the
18-10 state as shall be expedient and necessary for the proper
18-11 performance of its duties.
18-12 (b) The commission shall develop and implement policies that
18-13 provide the public with a reasonable opportunity to appear before
18-14 the commission and to speak on any issue under the jurisdiction of
18-15 the commission.
18-16 SECTION 1.13. Subsection (a), Section 1.035, Public Utility
18-17 Regulatory Act of 1995 (citation) is amended to read as follows:
18-18 (a) The commission shall file annually with the governor and
18-19 the presiding officer of each house of the legislature a complete
18-20 and detailed written report accounting for all funds received and
18-21 disbursed by the commission during the preceding fiscal year. The
18-22 annual report must be in the form and reported in the time provided
18-23 by the General Appropriations Act <publish an annual report to the
18-24 governor, summarizing its proceedings, listing its receipts and the
18-25 sources of its receipts, listing its expenditures and the nature of
19-1 such expenditures, and setting forth such other information
19-2 concerning the operations of the commission and the public utility
19-3 industry as it considers of general interest>.
19-4 SECTION 1.14. Section 1.036, Public Utility Regulatory Act
19-5 of 1995 (citation) is amended to read as follows:
19-6 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
19-7 commission shall prepare information of public <consumer> interest
19-8 describing the <regulatory> functions of the commission and
19-9 <describing> the commission's procedures by which <consumer>
19-10 complaints are filed with and resolved by the commission. The
19-11 commission shall make the information available to the <general>
19-12 public and appropriate state agencies.
19-13 (b) The commission by rule shall establish methods by which
19-14 consumers and service recipients are notified of the name, mailing
19-15 address, and telephone number of the commission for the purpose of
19-16 directing complaints to the commission.
19-17 (c) The commission commission shall comply with federal and
19-18 state laws for program and facility accessibility. The commission
19-19 shall also prepare and maintain a written plan that determination
19-20 how a person who does not speak English can be provided reasonable
19-21 access to the commission's program and service.
19-22 SECTION 1.15. Section 1.051, Public Utility Regulatory Act
19-23 of 1995 (citation) is amended to read as follows:
19-24 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
19-25 independent Office of Public Utility Counsel represents the
20-1 interests of residential and small commercial consumers.
20-2 (b) The chief executive of the office <Office of Public
20-3 Utility Counsel> is the public utility counsel, hereinafter
20-4 referred to as counsellor. The counsellor is appointed by the
20-5 governor with the advice and consent of the senate to a two-year
20-6 term that expires on February 1 of the final year of the term.
20-7 Appointment of the public utility counsel shall be made without
20-8 regard to the race, color, handicap, sex, religion, age, or
20-9 national origin of the appointee.
20-10 (c) The counsellor shall be a resident of Texas and admitted
20-11 to the practice of law in this state who has demonstrated a strong
20-12 commitment and involvement in efforts to safeguard the rights of
20-13 the public and possesses the knowledge and experience necessary to
20-14 practice effectively in utility proceedings.
20-15 (d) A person is not eligible for appointment as public
20-16 utility counsel if the person or person's spouse:
20-17 (1) is employed by or participates in the management
20-18 of a business entity or other organization regulated by the
20-19 commission or receiving funds from the commission;
20-20 (2) owns or controls, directly or indirectly, more
20-21 than a 10 percent interest or a pecuniary interest with a value
20-22 exceeding $10,000 in:
20-23 (A) a business entity or other organization
20-24 regulated by the commission or receiving funds from the commission
20-25 or the office; or
21-1 (B) any utility competitor, utility supplier, or
21-2 other entity affected by a commission decision in a manner other
21-3 than by the setting of rates for that class of customer;
21-4 (3) uses or receives a substantial amount of tangible
21-5 goods, services, or funds from the commission or the office, other
21-6 than compensation or reimbursement authorized by law for counsellor
21-7 or commission membership, attendance, or expenses; or
21-8 (4) notwithstanding Subdivision (2) of this
21-9 subsection, has an interest in a mutual fund or retirement fund in
21-10 which more than 10 percent of the fund's holdings is in a single
21-11 utility, utility competitor, or utility supplier in this state and
21-12 the person does not disclose this information to the governor,
21-13 senate, or other entity, as appropriate.
21-14 (e) A person may not serve as counsellor or act as the
21-15 general counsel for the office if the person is required to
21-16 register as a lobbyist under Chapter 305, Government Code, because
21-17 of the person's activities for compensation related to the
21-18 operation of the commission or the office.
21-19 (f) An officer, employee, or paid consultant of trade
21-20 association in the field of public utilities may not serve as
21-21 counsellor or be an employee of the office who is exempt from the
21-22 state's position classification plan or in compensated at or above
21-23 the amount prescribed by the General Appropriations Act for step 1,
21-24 salary group 17, of the position classification salary schedule. A
21-25 person who is the spouse of an officer, employee, or paid
22-1 consultant of trade association in the field of public utilities
22-2 may not serve as counsellor or be an employee of the office who is
22-3 exempt from the state's posistion classification plan or in
22-4 compensated at or above the amount prescribed by the General
22-5 Appropriations Act for step 1, salary group 17, of the position
22-6 classification salary schedule
22-7 (g) Notwithstanding any other provision of this Act, a
22-8 person otherwise ineligible because of the application of
22-9 Subdivision (2) of Subsection (c) of Section 1.051 may be appointed
22-10 as counsellor and may serve as counsellor if the person:
22-11 (1) notifies the attorney general and commission that
22-12 the person is ineligible because of the application of Subdivision
22-13 (2) of Subsection (c) of Section 1.051; and
22-14 (2) divests the person or the person's spouse of the
22-15 ownership or control before appointment, or within a reasonable
22-16 time if the person is already serving at the time Subdivision (2)
22-17 of Subsection (c) of Section 1.051 first applies to the person.
22-18 SECTION 1.16. Subtitle C, Title I, Public Utility Regulatory
22-19 Act of 1995 (citation) is amended by adding Section 1.0511 to read
22-20 as follows:
22-21 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
22-22 removal from office if the counsellor:
22-23 (1) does not have at the time of appointment the
22-24 qualifications required by this section;
22-25 (2) does not maintain during service as counsellor the
23-1 qualifications required by this section;
23-2 (3) violates a prohibition established by this
23-3 section; or
23-4 (4) cannot discharge the counsellor's duties for a
23-5 substantial part of the term for which the counsellor is appointed
23-6 because of illness or disability.
23-7 (b) The validity of an action of the office is not affected
23-8 by the fact that it is taken when a ground for removal of the
23-9 counsellor exists.
23-10 SECTION 1.17. Subtitle C, Title I, Public Utility Regulatory
23-11 Act of 1995 (citation) is amended by adding Section 1.0512 to read
23-12 as follows:
23-13 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
23-14 (a) The counsellor may not within two years, and an employee of
23-15 the office may not, within one year after his employment with the
23-16 office has ceased, be employed by a public utility which was in the
23-17 scope of counsellor's or employee's official responsibility while
23-18 the counsellor or employee was associated with the office.
23-19 (b) During the time the counsellor or an employee of the
23-20 office is associated with the office or at any time after, the
23-21 counsellor or employee may not represent a person, corporation, or
23-22 other business entity before the commission or a court in a matter
23-23 in which the counsellor or employee was presonally involved while
23-24 associated with the office or a matter that was within the
23-25 counsellor's or employee's official responsibility with the
24-1 cousellor or employee was associated with the office.
24-2 SECTION 1.18. Subtitle C, Title I, Public Utility Regulatory
24-3 Act of 1995 (citation) is amended by adding Section 1.0513 to read
24-4 as follows:
24-5 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
24-6 shall file annually with the governor and the presiding officer of
24-7 each house of the legislature a complete and detailed written
24-8 report accounting for all funds received and disbursed by the
24-9 office during the preceding fiscal year. The annual report must be
24-10 in the form and reported in the time provided by the General
24-11 Appropriations Act.
24-12 (b) The office shall prepare information of public interest
24-13 describing the functions of the office. The office shall make the
24-14 information available to the public and appropriate state agencies.
24-15 (c) The office shall prepare and maintain a written plan
24-16 that describes how a person who does not speak English can be
24-17 provided reasonable access to the office's programs. The office
24-18 shall also comply with federal and state laws for program and
24-19 facility accessibility.
24-20 SECTION 1.19. Section 1.052, Public Utility Regulatory Act
24-21 of 1995 (citation) is amended to read as follows:
24-22 Sec. 1.052. INTEREST PROHIBITED. During the period of the
24-23 counsellor's employment and for a period of two years following the
24-24 termination of employment, it shall be unlawful for any person
24-25 employed as counsellor to have a direct or indirect interest in any
25-1 utility company regulated under the Public Utility Regulatory Act,
25-2 to provide legal services directly or indirectly to or be employed
25-3 in any capacity by a utility company regulated under the Public
25-4 Utility Regulatory Act, its parent, or its subsidiary companies,
25-5 corporations, or cooperatives or a utility competitor, utility
25-6 supplier, or other entity affected in a manner other than by the
25-7 setting of rates for that class of customer; but such person may
25-8 otherwise engage in the private practice of law after the
25-9 termination of employment as the counsellor.
25-10 SECTION 1.20. Section 1.053, Public Utility Regulatory Act
25-11 of 1995 (citation) is amended to read as follows:
25-12 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
25-13 lawyers, economists, engineers, consultants, statisticians,
25-14 accountants, clerical staff, and other employees as he or she deems
25-15 necessary to carry out the provisions of this section. All
25-16 employees shall receive such compensation as is fixed by the
25-17 legislature from the assessment imposed by Section 1.351 of this
25-18 Act.
25-19 (b) The counsellor or the counsellor's designee shall
25-20 develop an intra-agency career ladder program that addresses
25-21 opportunities for mobility and advancement for employees within the
25-22 commission. The program shall require intra-agency postings of all
25-23 positions concurrently with any public posting. The counsellor or
25-24 the counsellor's designee shall develop a system of annual
25-25 performance evaluations that are based on documented employee
26-1 performance. All merit pay for office employees must be based on
26-2 the system established under this subsection. The office shall
26-3 provide to the public utility counsel and its employees, as often
26-4 as necessary, information regarding their qualification for office
26-5 or employment under this Act and their responsibilities under
26-6 applicable laws relating to standards of conduct for state officers
26-7 or employees.
26-8 (c) The counsellor or the counsellor's designee shall
26-9 prepare and maintain a written policy statement to assure
26-10 implementation of a program of equal employment opportunity under
26-11 which all personnel transactions are made without regard to race,
26-12 color, handicap, sex, religion, age, or national origin. The
26-13 policy statement must include:
26-14 (1) personnel policies, including policies relating to
26-15 recruitment, evaluation, selection, appointment, training, and
26-16 promotion of personnel;
26-17 (2) a comprehensive analysis of the office work force
26-18 that meets federal and state guidelines;
26-19 (3) procedures by which a determination can be made of
26-20 significant underutilization in the office work force of all
26-21 persons for whom federal or state guidelines encourage a more
26-22 equitable balance; and
26-23 (4) reasonable methods to address those areas of
26-24 significant underutilization appropriately.
26-25 (d) A policy statement prepared under Subsection (c) of this
27-1 section must cover an annual period, be updated at least annually,
27-2 and be filed with the Commission on Human Rights for compliance
27-3 with Subsection c(1), and be filed with the governor's office. The
27-4 governor's office shall deliver a biennial report to the
27-5 legislature based on the information received under this
27-6 subsection. The report may be made separately or as a part of
27-7 other biennial reports made to the legislature.
27-8 SECTION 1.21. Section 1.101 of the Public Utility Regulatory
27-9 Act of 1995 (citation) is amended to read as follows:
27-10 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
27-11 (a) The commission has the general power to regulate and supervise
27-12 the business of every public utility within its jurisdiction and to
27-13 do all things, whether specifically designated in this Act or
27-14 implied herein, necessary and convenient to the exercise of this
27-15 power and jurisdiction.
27-16 (b) The commission shall make and enforce rules reasonably
27-17 required in the exercise of its powers and jurisdiction, including
27-18 rules governing practice and procedure before the commission and,
27-19 as applicable, practice and procedure before the utility division
27-20 of the State Office of Administrative Hearing.
27-21 (c) The commission shall authorize an administrative law
27-22 judge or hearings examiner to:
27-23 (1) limit the amount of time that a party may have to
27-24 present its case;
27-25 (2) limit the number of requests for information that
28-1 a party may make;
28-2 (3) require a party to identify contested issues and
28-3 facts before the hearing begins and to limit cross-examination to
28-4 only those issues and facts and to any new issues that may arise as
28-5 a result of the discovery process; or
28-6 (4) group parties, other than the office, that have
28-7 the same position on an issue to facilitate cross-examination on
28-8 that issue, provided that each party in a group is entitled to
28-9 present that party's witnesses for cross-examination during the
28-10 hearing.
28-11 (c) Rules adopted under subsection (b) of this section must
28-12 ensure that all parties receive due process.
28-13 (d) The commission may call and hold hearings, assign
28-14 contested case hearings to be heard by the utility division of the
28-15 State Office of Administrative Hearings, administer oaths, receive
28-16 evidence at hearings, issue subpoenas to compel the attendance of
28-17 witnesses and the production of papers and documents, and make
28-18 findings of fact and decisions with respect to administering the
28-19 provisions of this Act or the rules, orders, or other actions of
28-20 the commission.
28-21 (e) Notwithstanding any other provision of this Act or other
28-22 law, in proceedings other than those involving major rate changes,
28-23 the commission may delegate to an administrative law judge in the
28-24 utility division of the State Office of Administrative Hearings <or
28-25 hearings examiner> the authority to make a final decision and to
29-1 issue findings of fact, conclusions of law, and other necessary
29-2 orders in a proceeding in which there is no contested issue of fact
29-3 or law. The commission, by rule, shall define the procedures by
29-4 which it delegates final decision making authority authorized by
29-5 this section. For review purposes the final decision of the
29-6 administrative law judge <or hearings examiner> has the same effect
29-7 as a final decision of the commission unless a commissioner
29-8 requests formal review of the decision.
29-9 SECTION 1.22. Subsection (b), Section 1.102, Public Utility
29-10 Regulatory Act of 1995 (citation) is amended to read as follows:
29-11 (b) The commission may audit each utility under the
29-12 jurisdiction of the commission as frequently as needed<, but shall
29-13 audit each utility at least once every 10 years>. Six months after
29-14 any audit, the utility shall report to the commission on the status
29-15 of the implementation of the recommendations of the audit and shall
29-16 file subsequent reports at such times as the commission deems
29-17 appropriate.
29-18 SECTION 1.23. Subtitle D, Title I, Public Utility Regulatory
29-19 Act of 1995 (citation) is amended by adding Section 1.104 to read
29-20 as follows:
29-21 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
29-22 adopt procedures governing the use of settlements to resolve
29-23 contested cases.
29-24 (b) The rules shall ensure that:
29-25 (1) each party retains the right to:
30-1 (A) have a full hearing before the commission on
30-2 issues that remain in dispute; and
30-3 (B) judicial review of issues that remain in
30-4 dispute;
30-5 (2) an issue of fact raised by a nonsettling party
30-6 cannot be waived by a settlement or stipulation of the other
30-7 parties; and
30-8 (3) the nonsettling party may use the issue of fact
30-9 raised by that party as the basis for judicial review.
30-10 SECTION 1.24. Subsection (a), Section 1.202, Public Utility
30-11 Regulatory Act of 1995 (citation) is amended to read as follows:
30-12 (a) The commission shall have the power to:
30-13 (1) require that public utilities report to it such
30-14 information relating to transactions between themselves and
30-15 affiliated interests both within and without the State of Texas to
30-16 the extent that those transactions are subject to the jurisdiction
30-17 of the commission <as it may consider useful in the administration
30-18 of this Act>;
30-19 (2) establish forms for all reports;
30-20 (3) determine the time for reports and the frequency
30-21 with which any reports are to be made;
30-22 (4) require that any reports be made under oath;
30-23 (5) require that a copy of any contract or arrangement
30-24 that is subject to the jurisdiction of the commission between any
30-25 public utility and any affiliated interest be filed with it. It
31-1 may require any such contract or arrangement not in writing to be
31-2 reduced to writing and filed with it;
31-3 (6) require that a copy of any report filed with any
31-4 federal agency or any governmental agency or body of any other
31-5 state be filed with it;
31-6 (7) require that a copy of annual reports showing all
31-7 payments of compensation (other than salary or wages subject to the
31-8 withholding of federal income tax) to residents of Texas, or with
31-9 respect to legal, administrative, or legislative matters in Texas,
31-10 or for representation before the Texas Legislature or any
31-11 governmental agency or body; and
31-12 (b) <the railroad commission shall have the power to review
31-13 and approve, for purposes of the Outer Continental Shelf Lands Act
31-14 Amendments of 1978 and any other federal authorities, applications
31-15 by gas utilities for the purchase of natural gas from producing
31-16 affiliates.>
31-17 SECTION 1.25. Section 1.271 of the Public Utility Regulatory
31-18 Act of 1995 (citation) is amended to read as follows:
31-19 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
31-20 commission shall have jurisdiction over <affiliated interests
31-21 having> transactions between <with> public utilities under the
31-22 jurisdiction of the commission and affiliated interests to the
31-23 extent of access to all accounts and records of such affiliated
31-24 interests relating to such transactions, including but in no way
31-25 limited to accounts and records of joint or general expenses, any
32-1 portion of which may be applicable to such transactions. Any
32-2 accounts or records obtained by the commission related to sales of
32-3 electrical energy at wholesale by an affiliated interest to the
32-4 public utility shall be confidential and not subject to disclosure
32-5 under the open records law, Chapter 552, Government Code.
32-6 SECTION 1.26. Subsection (b), Section 1.351, Public Utility
32-7 Regulatory Act of 1995 (citation) is amended to read as follows:
32-8 (b) The legislature may <commission shall, subject to the
32-9 approval of the Legislature,> adjust this assessment to provide a
32-10 level of income sufficient to fund the commission and the office of
32-11 public utility counsel.
32-12 SECTION 1.27. Section 1.354 of the Public Utility Regulatory
32-13 Act of 1995 (citation) is amended to read as follows:
32-14 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
32-15 FUND. (a) All fees, penalties, and interest paid under the
32-16 provisions of Sections 1.351 and 1.352 of this Act shall be
32-17 collected by the comptroller of public accounts and paid into the
32-18 general revenue fund. <The commission shall notify the comptroller
32-19 of public accounts of any adjustment of the assessment imposed in
32-20 Section 1.351 when made.>
32-21 (b) All money paid to the commission or to the office under
32-22 this Act is subject to Subchapter F, Chapter 404, Government Code.
32-23 SECTION 1.28 Subchapter C, Chapter 2003, Government Code, ia
32-24 amended by adding Section 2003.047 to read as follows:
32-25 Sec. 4A. UTILITY DIVISION. (a) The office shall establish
33-1 a utility division to perform the contested case hearings for the
33-2 Public Utility Commission of Texas as prescribed by the Public
33-3 Utility Regulatory Act of 1995 (citation) and its subsequent
33-4 amendments and other applicable law.
33-5 (b) The utility division shall conduct hearings relating to
33-6 contested cases before the commission, other than a hearing
33-7 conducted by one or more commissioners. The commission by rule may
33-8 delegate the responsibility to hear any other matter before the
33-9 commission if consistent with the duties and responsibilities of
33-10 the division.
33-11 (c) Only an administrative law judge in the utility division
33-12 may conduct a hearing on behalf of the commission. An
33-13 administrative law judge in the utility division may conduct
33-14 hearings for other state agencies as time allows. The office may
33-15 transfer an administrative law judge into the division on a
33-16 temporary or permanent basis and may contract with qualified
33-17 individuals to serve as temporary administrative law judges as
33-18 necessary.
33-19 (d) To be eligible to preside at a hearing, an
33-20 administrative law judge, regardless of temporary or permanent
33-21 status, must be licensed to practice law in this state and have not
33-22 less than five years of general experience or three years of
33-23 experience in utility regulatory law.
33-24 (e) At the time the office receives jurisdiction of a
33-25 proceeding, the commission shall provide to the administrative law
34-1 judge a list of issues or areas that must be addressed. In
34-2 addition, the commission may identify and provide to the
34-3 administrative law judge at any time additional issues or areas
34-4 that must be addressed.
34-5 (f) The office and the commission shall jointly adopt rules
34-6 providing for certification to the commission of an issue that
34-7 involves an ultimate finding of compliance with or satisfaction of
34-8 a statutory standard the determination of which is committed to the
34-9 discretion or judgment of the commission by law. The rules must
34-10 address, at a minimum, the issues that are appropriate for
34-11 certification and the procedure to be used in certifying the issue.
34-12 Each agency shall publish the jointly adopted rules.
34-13 (g) Notwithstanding Section 2001.058, Administrative
34-14 Procedure Act (Chapter 2001, Government Code), and its subsequent
34-15 amendments, the commission may change a finding of fact or
34-16 conclusion of law made by the administrative law judge or vacate or
34-17 modify an order issued by the administrative law judge only if the
34-18 commission:
34-19 (1) determines that the administrative law judge:
34-20 (A) did not properly apply or interpret
34-21 applicable law, agency rules or policies, or prior administrative
34-22 decisions; or
34-23 (B) issued a finding of fact that is not
34-24 supported by a preponderance of the evidence; or
34-25 (2) determines that an agency policy or a prior
35-1 administrative decision on which the administrative law judge
35-2 relied is incorrect or should be changed.
35-3 (h) The commission shall state in writing the specific
35-4 reason and legal basis for its determination under Subsection (g)
35-5 of this section.
35-6 (i) An administrative law judge, on the judge's own motion
35-7 or on motion of a party and after notice and an opportunity for a
35-8 hearing, may impose appropriate sanctions as provided by Subsection
35-9 (j) of this section against a party or its representative for:
35-10 (1) filing a motion or pleading that is groundless and
35-11 brought:
35-12 (A) in bad faith;
35-13 (B) for the purpose of harassment; or
35-14 (C) for any other improper purpose, such as to
35-15 cause unnecessary delay or needless increase in the cost of the
35-16 proceeding;
35-17 (2) abuse of the discovery process in seeking, making,
35-18 or resisting discovery; or
35-19 (3) failure to obey an order of the administrative law
35-20 judge or the commission.
35-21 (j) A sanction imposed under Subsection (i) of this section
35-22 may include, as appropriate and justified, issuance of an order:
35-23 (1) disallowing further discovery of any kind or of a
35-24 particular kind by the offending party;
35-25 (2) charging all or any part of the expenses of
36-1 discovery against the offending party or its representative;
36-2 (3) holding that designated facts be deemed admitted
36-3 for purposes of the proceeding;
36-4 (4) refusing to allow the offending party to support
36-5 or oppose a designated claim or defense or prohibiting the party
36-6 from introducing designated matters in evidence;
36-7 (5) disallowing in whole or in part requests for
36-8 relief by the offending party and excluding evidence in support of
36-9 such requests;
36-10 (6) punishing the offending party or its
36-11 representative for contempt to the same extent as a district court;
36-12 (7) requiring the offending party or its
36-13 representative to pay, at the time ordered by the administrative
36-14 law judge, the reasonable expenses, including attorney fees,
36-15 incurred by other parties because of the sanctionable behavior; and
36-16 (8) striking pleadings or testimony, or both, in whole
36-17 or in part, or staying further proceedings until the order is
36-18 obeyed.
36-19 SECTION 1.29. (a) A task force is established to administer
36-20 the transfer of the hearings division from the Public Utility
36-21 Commission of Texas to the State Office of Administrative Hearings.
36-22 The task force is composed of:
36-23 (1) the governor or the governor's designee;
36-24 (2) the Legislative Budget Board or the board's
36-25 designee;
37-1 (3) the chairman of the Public Utility Commission of
37-2 Texas; and
37-3 (4) the chief administrative law judge of the State
37-4 Office of Administrative Hearings.
37-5 (b) The governor or the governor's designee is the presiding
37-6 officer of the task force.
37-7 (c) The task force shall:
37-8 (1) determine the personnel, equipment, data,
37-9 facilities, and other items that will be transferred under this Act
37-10 and the schedule for the transfers; and
37-11 (2) mediate and resolve disputes between the
37-12 respective agencies relating to a transfer.
37-13 (d) After the transfers have been completed, the task force
37-14 shall prepare a written report detailing the specifics of the
37-15 transfers and shall submit the report to the governor and the
37-16 legislature.
37-17 (e) In determining a transfer under this Act, the task force
37-18 shall ensure that the transfer does not adversely affect a
37-19 proceeding before the Public Utility Commission of Texas or the
37-20 rights of the parties to the proceeding.
37-21 SECTION 1.30. (a) On September 1, 1996, all personnel,
37-22 including hearings examiners and administrative law judges,
37-23 equipment, data, facilities, and other items of the hearings
37-24 division of the Public Utility Commission of Texas, other than the
37-25 personnel, equipment, data, facilities, and other items of the
38-1 central records office, are transferred to the utility division of
38-2 the State Office of Administrative Hearings. Until September 1,
38-3 1997, an employee transferred to the utility division may be
38-4 terminated or subject to salary reduction only for cause and only
38-5 in relation to poor performance or unacceptable conduct. A
38-6 hearings examiner transferred to the State Office of Administrative
38-7 Hearings becomes an administrative law judge on the date of
38-8 transfer.
38-9 (b) A hearings examiner or administrative law judge
38-10 transferred from the Public Utility Commission of Texas to the
38-11 State Office of Administrative Hearings shall continue to hear any
38-12 case assigned to the person as if the transfer had not occurred.
38-13 (c) The changes in law made by this Act that relate to the
38-14 procedures governing a hearing before the utility division of the
38-15 State Office of Administrative Hearings apply only to a case that
38-16 is filed on or after September 1, 1996.
38-17 SECTION 1.31. Subsection (c), Section 6, Chapter 1132, Acts
38-18 of the 70th Legislature, Regular Session, 1987 (Article 4413(55),
38-19 Vernon's Texas Civil Statutes), is amended to read as follows:
38-20 (c) Any order or ruling of the Public Utility Commission of
38-21 Texas entered pursuant to this Act shall be deemed to have been
38-22 entered or adopted under the Public Utility Regulatory Act of 1995
38-23 (citation) and, for purposes of enforcement, is subject to
38-24 enforcement pursuant to Subtitle I of Title I <Sections 71 through
38-25 77> of the Public Utility Regulatory Act of 1995 (citation) and its
39-1 subsequent amendments.
39-2 SECTION 1.32. (a) The changes in law made by this Act
39-3 relating to the requirements for membership on the Public Utility
39-4 Commission of Texas or to employment as executive director or
39-5 general counsel of the commission apply only to a person appointed
39-6 or hired, as appropriate, on or after the effective date of this
39-7 Act, and do not affect the entitlement of a member serving on the
39-8 commission on August 31, 1995, to continue to hold office for the
39-9 remainder of the term for which the person was appointed or the
39-10 ability of a person serving as executive director or general
39-11 counsel on August 31, 1995 to continue to hold that position.
39-12 SECTION 1.33. Section 1.104, Public Utility Regulatory Act
39-13 of 1995 (citation), as added by this Act, applies only to a
39-14 proceeding for which a settlement has not been reached or a final
39-15 order has not been issued before the effective date of rules
39-16 adopted under Section 1.104, Public Utility Regulatory Act of 1995
39-17 (citation), as added by this Act. Except as otherwise provided by
39-18 this section, on or after the effective date of rules adopted under
39-19 Section 1.104, the Public Utility Commission of Texas may not
39-20 approve a settlement unless the settlement has been reached in
39-21 accordance with rules adopted under Section 1.104.
39-22 SECTION 1.34. Section 1.324, Public Utility Regulatory Act
39-23 of 1995 (citation) is repealed.
39-24 SECTION 2.01. Section 2.001, Public Utility Regulatory Act
39-25 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
40-1 Regular Session, 1995, is amended to read as follows:
40-2 Sec. 2.001. DEFINITIONS. (a) In this title, "electric
40-3 utility" or "utility" means any person, corporation, river
40-4 authority, cooperative corporation, or any combination thereof,
40-5 other than a municipal corporation, or their lessees, trustees, and
40-6 receivers, now or hereafter <owning or operating for compensation
40-7 in this state equipment or facilities for> producing, generating,
40-8 transmitting, distributing, selling, or furnishing electricity in
40-9 this state, provided, however, that this definition may not be
40-10 construed to apply to or include a qualifying facility, as defined
40-11 in Sections 3(17)(D) and 3(18)(C) (of the Federal Power Act, as
40-12 amended (16 U.S.C. Sections 796(17)(D) and 796(18)(C)) provided
40-13 that the qualifying small power producer or qualifying cogenerator
40-14 may make sales of electric energy in this state only at wholesale
40-15 except that a qualifying cogenerator may make retail sales of
40-16 electric energy in this state to the sole purchaser of the thermal
40-17 output of the qualifying facility, an Exempt Wholesale Generator as
40-18 defined in Section 32(a)(1) of the Public Utility Holding Company
40-19 Act of 1935, as amended (15 U.S.C. Section 79 and following), or a
40-20 Power Marketer, which is defined for the purposes of this Act as
40-21 any person that takes ownership of electric energy in this state
40-22 for the purpose of buying and selling such electric energy at
40-23 wholesale but does not own generation, transmission, or
40-24 distribution facilities in this state and does not have a
40-25 certificated service area; and provided further that an affiliate
41-1 of an electric utility may be an Exempt Wholesale Generator or
41-2 Power Marketer and such affiliate shall not be precluded from
41-3 selling electric energy to the utility in accordance with Section
41-4 2.051 of this Act, or from acquiring equipment or facilities of the
41-5 electric utility consistent with applicable federal and state law;
41-6 and provided further that Exempt Wholesale Generators and Power
41-7 Marketers may sell electric energy in this state only at wholesale.
41-8 The term does not include any person or corporation not otherwise
41-9 an electric utility that:
41-10 (1) furnishes the services or commodity described in
41-11 this section only to itself<, its employees, or tenants as an
41-12 incident of such employee service or tenancy,> when such service or
41-13 commodity is not resold to or used by others and is not transmitted
41-14 beyond the property of such person or corporation where such
41-15 service or commodity originates;
41-16 (2) owns or operates in this state equipment or
41-17 facilities for producing, generating, transmitting, distributing,
41-18 selling, or furnishing electric energy to an electric utility, if
41-19 the equipment or facilities are otherwise used only <primarily> for
41-20 the production and generation of electric energy for consumption by
41-21 the person or corporation; or
41-22 (3) owns or operates in this state a recreational
41-23 vehicle park that provides metered electric service in accordance
41-24 with Article 1446d-2, Revised Statutes, provided that a
41-25 recreational vehicle park owner is considered an electric utility
42-1 if the owner fails to comply with Article 1446d-2, Revised
42-2 Statutes, with regard to the metered sale of electricity at the
42-3 recreational vehicle park.
42-4 (b) In this title, "integrated resource planning" means a
42-5 planning and selection process for new energy resources that
42-6 evaluates the full range of feasible and commercially viable
42-7 alternatives, on a consistent and integrated basis, in order to
42-8 provide adequate and reliable service to an electric utility's
42-9 customers at the lowest reasonable system cost. The process shall
42-10 include an evaluation of customer energy conservation and
42-11 efficiency, customer demand modification, renewable energy
42-12 resources, power purchases, cogeneration, and new utility
42-13 generating capacity. The process shall take into account the
42-14 ability to verify energy savings achieved through energy
42-15 conservation and efficiency and the projected durability of such
42-16 savings measured over time.
42-17 (c) In this title, "lowest reasonable system cost" means the
42-18 direct and reasonably quantifiable costs to a utility of an energy
42-19 resource used to provide service to utility customers over the
42-20 available life of such resource, taking into account necessary
42-21 features for system operation and integrity, such as resource
42-22 reliability, availability, dispatchability, and location,
42-23 technological and fuel diversity, availability and deliverability
42-24 of necessary fuels, firmness of power delivered by the resource,
42-25 qualifications of the owner(s) and operator(s) of the resource,
43-1 reliability of any securities offered to ensure performance of the
43-2 resource, the term of a contract under which a resource may be
43-3 provided, and any other factors of risk the utility deems
43-4 appropriate. Such costs should include the cost of production,
43-5 distribution, transportation, utilization, waste management, and
43-6 compliance with the environmental protection requirements of all
43-7 applicable state and federal laws, rules and orders, but shall not
43-8 include environmental costs beyond such compliance costs.
43-9 (d) In this title, "price" shall be any charge to a customer
43-10 for retail electric service that is at or lower than a rate
43-11 approved by a regulatory authority.
43-12 (e) In this title, "qualifying facility" means a qualifying
43-13 cogenerator or a qualifying small-power producer, as defined by
43-14 Sections 3(18)(C) and 3(17)(D), respectively, of the Federal Power
43-15 Act (16 U.S.C. Sections 796(18)(C) and 796(17)(D)).
43-16 SECTION 2.02. Subtitle A, Title II, Public Utility
43-17 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
43-18 74th Legislature, Regular Session, 1995, is amended by adding
43-19 Section 2.003 to read as follows:
43-20 Sec. 2.003. LEGISLATIVE POLICY CONCERNING REGULATION OF THE
43-21 ELECTRIC UTILITY INDUSTRY. (a) It is the policy of this State to
43-22 protect the public interest in having adequate and efficient
43-23 electric service available to all citizens of the State at just and
43-24 reasonable rates. The legislature finds that the electric industry
43-25 through federal legislative, judicial, and administrative actions
44-1 is becoming a more competitive industry which does not lend itself
44-2 to traditional electric utility regulatory rules, policies, and
44-3 principles; and that, therefore, the public interest requires that
44-4 new rules, policies, and principles be formulated and applied to
44-5 protect the public interest in a more competitive marketplace. It
44-6 is the purpose of this section to grant to the Commission the
44-7 authority and power under this Act to carry out the public policy
44-8 herein stated.
44-9 (b) For purposes of carrying out the public policy stated in
44-10 this section, wholesale and retail sales and purchases of
44-11 electricity shall be subject to the following conditions:
44-12 (1) Affiliates of electric utilities, exempt wholesale
44-13 generators, qualifying facilities and all other providers of
44-14 generation may compete for the business of selling power to a third
44-15 party that is not an ultimate consumer of electricity. An electric
44-16 utility may purchase power from an affiliate. An electric utility
44-17 may not grant undue preference to any person in connection with the
44-18 purchase or sale of electricity at wholesale or other electric
44-19 utility services; and
44-20 (2) Retail electric service to an ultimate consumer of
44-21 electricity may be provided only by an electric utility that holds
44-22 a certificate of convenience and necessity for a retail service
44-23 area granted under Subtitle F of Title II of this Act; provided,
44-24 that a qualifying cogenerator may make retail sales of electric
44-25 energy in this state to the sole purchaser of the thermal output of
45-1 the qualifying facility without obtaining a certificate of
45-2 convenience and necessity for a retail service area. Retail
45-3 electric service shall mean any service to an ultimate consumer of
45-4 electricity; provided that an electric utility providing services
45-5 necessary for the generation and transmission of electricity shall
45-6 not be considered an ultimate consumer of electricity with respect
45-7 to such services.
45-8 (c) To the extent a utility provides transmission of
45-9 electric energy at the request of a third party, the Commission
45-10 shall ensure that the costs of such transmission are not borne by
45-11 the utility's other customers by requiring the utility to recover
45-12 from the entity for which such transmission is provided all
45-13 reasonable costs incurred by the utility in providing such
45-14 transmission, including the cost of any necessary interconnection
45-15 facilities and transmission facility upgrades.
45-16 (d) An electric utility's revenue requirement and retail
45-17 rates shall be approved by the regulatory authority in accordance
45-18 with the principles of this Act to assure that they are just and
45-19 reasonable. At the option of an electric utility, it may charge
45-20 individual customers for electric service at a price that is lower
45-21 than the rate approved by a regulatory authority but equal to or
45-22 greater than the utility's marginal cost in order to respond to the
45-23 forces of competition so long as:
45-24 (1) a new customer to whom the price is offered by the
45-25 electric utility has notified the utility that, without the offered
46-1 price, it will not take service from the utility; provided, that an
46-2 electric utility may not offer a price less than an approved rate
46-3 to a customer of another utility in a dually-certificated service
46-4 area as an inducement to change retail electric service providers
46-5 for any existing load; or
46-6 (2) an existing customer to whom a price is offered by
46-7 an electric utility has notified the utility that, without the
46-8 offered price, it will go off the utility's system or reduce its
46-9 load as a result of switching to alternative energy sources,
46-10 switching to service by another electric utility certificated to
46-11 provide such service, self generation, relocation, or closure.
46-12 (e) The Commission shall verify an electric utility's
46-13 marginal cost in connection with approval of that utility's
46-14 integrated resource plan under Section 2.051 of this Act.
46-15 (f) At the option of an electric utility, it may file with
46-16 the regulatory authority a tariff containing a methodology for
46-17 calculation of a price that may be offered individual customers for
46-18 electric service.
46-19 SECTION 2.03. Subtitle A, Title II, Public Utility
46-20 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
46-21 74th Legislature, Regular Session, 1995, is amended by adding
46-22 Section 2.004 to read as follows:
46-23 Sec. 2.004. SCOPE OF COMPETITION. Before January 15 of each
46-24 odd-numbered year, the commission shall report to the legislature
46-25 on the scope of competition in electric markets and the impact of
47-1 competition and industry restructuring on customers in both
47-2 competitive and noncompetitive markets. The report shall include
47-3 an assessment of the impact of competition on the rates and
47-4 availability of electric services for residential and small
47-5 commercial customers and a summary of commission actions over the
47-6 preceding two years that reflect changes in the scope of
47-7 competition in regulated electric markets. The report shall also
47-8 include recommendations to the legislature for further legislation
47-9 that the commission finds appropriate to promote the public
47-10 interest in the context of a partially competitive electric market.
47-11 SECTION 2.04. Section 2.051, Public Utility Regulatory Act
47-12 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
47-13 Regular Session, 1995, is amended to read as follows:
47-14 Sec. 2.051. INTEGRATED RESOURCE PLANNING. (a) The
47-15 commission by rule shall develop an integrated resource planning
47-16 process for selection of new energy resources that evaluates the
47-17 commercially viable alternatives, on a consistent and integrated
47-18 basis, in order to provide adequate and reliable energy service at
47-19 the lowest reasonable system cost.
47-20 (b) The commission shall periodically prepare and send to
47-21 the governor a report, based upon data contained in each utility's
47-22 most recently approved integrated resource plan, concerning the
47-23 adequacy of the electric supply in the state. The commission shall
47-24 make the report available to the public.
47-25 (c) The report shall include:
48-1 (1) historical data for electric consumption statewide
48-2 and by utility;
48-3 (2) historical data for electric generation by utility
48-4 and by type of capacity, including alternative energy sources;
48-5 (3) an inventory of generation capacity statewide and
48-6 by utility;
48-7 (4) quantitative data on demand-side management
48-8 programs to the extent the commission determines necessary;
48-9 (5) each utility's forecast without adjustment by the
48-10 commission;
48-11 (6) a projection of the need for electric services;
48-12 (7) a description of the approved individual
48-13 integrated resource plans of utilities; and
48-14 (8) an assessment of transmission needs based upon the
48-15 approved integrated resource plans of the state's utilities.
48-16 (d) In prescribing the requirements under this section,
48-17 including reporting requirements, the commission shall consider and
48-18 recognize the differences between small and large utilities.
48-19 (e) Every three years, a utility shall submit to the
48-20 commission a preliminary integrated resource plan covering a
48-21 10-year period. Nongenerating utilities are not required to submit
48-22 an integrated resource plan if they certify to the commission that
48-23 they have participated in the development of the resource plan of
48-24 each of their suppliers. The commission by rule:
48-25 (1) shall:
49-1 (A) prescribe a staggered schedule for the
49-2 submission of plans by utilities; provided, that the staggered
49-3 schedule adopted by the commission shall ensure that adequate time
49-4 is available for a utility to file its initial preliminary
49-5 integrated resource plan following the effective date of commission
49-6 rules promulgated pursuant to this section;
49-7 (B) prescribe the form and manner in which a
49-8 plan must be submitted; and
49-9 (C) adopt filing requirements and schedules; and
49-10 (2) may:
49-11 (A) define the scope and nature of customer
49-12 participation and other public input in the development of the
49-13 plan; and
49-14 (B) establish the general guidelines to be used
49-15 by utilities in evaluating and selecting or rejecting resources,
49-16 including procedures governing the solicitation process.
49-17 (f) A preliminary plan submitted under this section must
49-18 include:
49-19 (1) the utility's forecast of future demands;
49-20 (2) the utility's preliminary estimate of the energy
49-21 savings and demand reduction the utility can achieve during the
49-22 10-year period by use of commercially-viable demand-side management
49-23 resources and the range of probable costs for those resources;
49-24 (3) if additional supply-side resources are needed to
49-25 meet future demand, the utility's preliminary estimate of:
50-1 (A) the amount and operational characteristics
50-2 of the additional capacity needed;
50-3 (B) the types of commercially viable supply-side
50-4 resources for meeting that need; and
50-5 (C) the range of probable costs of those
50-6 resources;
50-7 (4) if necessary, proposed requests for proposals for
50-8 demand-side or supply-side resources, or both;
50-9 (A) a proposed request for proposals for
50-10 demand-side resources shall include the following information:
50-11 (i) the total amount of demand-side
50-12 resources to be solicited and, at the option of the utility, a
50-13 designation of specific amounts of demand-side resources to be
50-14 solicited based upon affected customer class, customer end-use, or
50-15 other categories deemed appropriate by the utility;
50-16 (ii) the proposed terms and conditions for
50-17 acquisition of resources to be solicited; and
50-18 (iii) the criteria or other evaluation
50-19 methodology proposed to be used by the utility for selecting from
50-20 among the resources proposed in the solicitation.
50-21 (B) a proposed request for proposals for
50-22 supply-side resources shall include the following information:
50-23 (i) the total amount of supply-side
50-24 resources to be solicited and, at the option of the utility, a
50-25 designation of specific amounts of supply-side resources to be
51-1 solicited based upon resource fuel type, operating mode, or other
51-2 characteristics deemed appropriate by the utility;
51-3 (ii) the proposed terms and conditions for
51-4 acquisition of resources to be solicited; and
51-5 (iii) the criteria or other evaluation
51-6 methodology proposed to be used by the utility for selecting from
51-7 among the resources proposed in the solicitation;
51-8 (5) at the utility's option, one or more cost recovery
51-9 mechanisms consistent with Subsection (t) of this section;
51-10 (6) at the utility's option, incentive mechanisms
51-11 consistent with Subsection (t) of this section;
51-12 (7) at the utilitys option, final reconciliation of
51-13 any expenses recovered through a cost recovery factor pursuant to
51-14 Subsection (t) of this section; and
51-15 (8) the mechanism used by the utility, if required by
51-16 rule adopted pursuant to Subdivision (2) of Subsection (e) of this
51-17 section, for receiving comments from its customers and other public
51-18 input concerning the development of the plan.
51-19 (g) The commission shall, upon request by any affected
51-20 person and within 90 days after a utility files its preliminary
51-21 plan pursuant to subsection (f) of this section, convene a public
51-22 hearing on the reasonableness of the preliminary plan, including
51-23 the utility's forecast of the annual energy and demand requirements
51-24 on its system for the following 10 years, any proposed request for
51-25 proposals, any cost recovery or incentive mechanisms contained in
52-1 the preliminary plan, and any requested final reconciliation of
52-2 expenses recovered through a cost recovery factor pursuant to
52-3 Subsection (t) of this section. At the hearing, any interested
52-4 person may intervene, present evidence, and cross-examine witnesses
52-5 regarding the reasonableness of the preliminary plan. Discovery is
52-6 limited to an issue relating to the development of the preliminary
52-7 plan, a fact issue included in the preliminary plan, and other
52-8 issues the commission is required to decide relating to the
52-9 preliminary plan. A commission hearing is not required for a
52-10 preliminary plan filed by a utility that does not indicate a need
52-11 to conduct a solicitation in connection with the current three-year
52-12 integrated resource planning cycle, in which case, the preliminary
52-13 plan shall be deemed to be the utility's approved final integrated
52-14 resource plan without the requirement of further commission action.
52-15 (h) Within 180 days after the filing of a proposed
52-16 preliminary integrated resource plan, the commission shall
52-17 determine whether the utility's preliminary plan, including the
52-18 utility's forecast of annual energy and demand requirements on the
52-19 utility's system for the following 10 years, any request for
52-20 proposals for demand-side or supply-side resources, and any cost
52-21 recovery or incentive mechanisms contained in the preliminary plan,
52-22 is reasonable and contains the information required by subsection
52-23 (f) of this section and shall grant any requested final
52-24 reconciliation of all purchased power and demand-side management
52-25 program costs pursuant to Subsection (t)(5) of this section. Since
53-1 the determinations concerning the proposed preliminary integrated
53-2 resource plan will address only a portion of the requirements of
53-3 this section, the commission's order shall be considered interim in
53-4 nature and shall not constitute a final, appealable order under
53-5 Section 2001.144, Administrative Procedure Act (Chapter 2001, Texas
53-6 Government Code), and its subsequent amendments; provided, however,
53-7 that the commission shall be bound by its determinations. The
53-8 commission's determination of the reasonableness of any utility
53-9 request for proposals shall not constitute a determination as to
53-10 the appropriate amount of new resources to be contained in the
53-11 utility's approved final integrated resource plan.
53-12 (i) If the commission fails to act by the deadline specified
53-13 in Subsection (h) of this section, the utility's proposed
53-14 preliminary plan, including its forecast of the annual energy and
53-15 demand requirements on its system for the following 10 years, its
53-16 requests for proposals, if any, and any cost recovery or incentive
53-17 mechanisms contained in the preliminary plan shall automatically be
53-18 deemed approved and any requested final reconciliation of all
53-19 purchased power and demand-side management program costs pursuant
53-20 to Subsection (t)(5) of this section shall automatically be deemed
53-21 granted.
53-22 (j)(1) On approval of the preliminary plan, the utility
53-23 shall conduct any necessary solicitations for demand-side and
53-24 supply-side resources, as prescribed in the preliminary plan. In
53-25 addition to soliciting resources from unaffiliated third parties,
54-1 the utility may:
54-2 (A) prepare and submit a bid of a new non-rate
54-3 based generating plant as prescribed by Subsection (s) of this
54-4 section or a new utility demand-side management program;
54-5 (B) receive bids from one or more affiliates;
54-6 and
54-7 (C) request a certificate of convenience and
54-8 necessity for a new rate-based generating plant as prescribed by
54-9 Subsection (s) of this section.
54-10 (2) If a utility wants to use a proposed
54-11 non-rate-based generating plant or a proposed demand-side
54-12 management program to meet a need identified in the preliminary
54-13 plan, the utility must prepare a bid reflecting that resource. A
54-14 bid prepared by the utility under this subsection must comply with
54-15 the solicitation, evaluation, selection, and rejection criteria
54-16 specified in the preliminary plan. The utility may not give
54-17 preferential treatment or consideration to a bid prepared under
54-18 this subsection.
54-19 (k) Each bidder, including the utility and its affiliates,
54-20 shall submit two copies of its bid to the commission. If a
54-21 qualifying facility submits a bid under this subsection, and
54-22 irrespective of whether that bid is accepted or rejected, the
54-23 submittal of such bid shall constitute a waiver by the qualifying
54-24 facility of any rights it may otherwise have under law to sell
54-25 capacity to the utility, shall represent the qualifying facility's
55-1 agreement to negotiate a rate for purchase of capacity, and terms
55-2 and conditions relating to any purchase of capacity, which differs
55-3 from the rate or terms and conditions which would otherwise be
55-4 required by Title 18, Chapter I, Subchapter K, Part 292, Subpart C
55-5 of the Code of Federal Regulations, and shall constitute a waiver
55-6 by the qualifying facility of its right to the rate, terms or
55-7 conditions for purchases of capacity which might otherwise be
55-8 required by that subpart. The commission shall ensure that the
55-9 utility has access to all bids at the same time. The commission
55-10 shall keep a copy of each bid submitted by the utility or an
55-11 affiliate to determine whether the utility complied with the
55-12 criteria established for conduct of the solicitation. A bid
55-13 submitted under this subsection or retained under this subsection
55-14 is confidential and is not subject to disclosure under the open
55-15 records law, Chapter 552, Government Code. If a utility
55-16 anticipates requesting a certificate of convenience and necessity
55-17 for a new rate-based generating plant, the utility must submit its
55-18 estimated capital, operating, and fuel costs for the plant to the
55-19 commission at the same time the bids are submitted. The cost
55-20 estimates may be submitted under seal, and if so submitted, are not
55-21 subject to disclosure under the open records law, Chapter 552,
55-22 Government Code. Such cost estimates shall be disclosed in a
55-23 proceeding under Subsection (n) of this section in which the
55-24 utility requests a certificate of convenience and necessity for the
55-25 plant.
56-1 (l) The utility shall evaluate each bid submitted, including
56-2 a bid submitted by the utility or an affiliate, in accordance with
56-3 the criteria specified in the preliminary plan and shall negotiate
56-4 necessary contracts. If the utility accepts a bid the utility
56-5 submitted under Subsection (s) of this section, the utility shall
56-6 specify in writing that the utility agrees to provide the resources
56-7 in the same manner and under the same terms and conditions the
56-8 utility would require from a third party, unless the utility can
56-9 demonstrate to the satisfaction of the commission that a term or
56-10 condition should not apply. Unless the utility submits a bid under
56-11 Subsection (s) of this section, the utility is not required to
56-12 accept a bid and may reject any or all bids in accordance with the
56-13 selection and rejection criteria specified in the preliminary plan.
56-14 If the utility submits a bid under Subsection (s) of this section,
56-15 the utility may reject other bids in accordance with the selection
56-16 and rejection criteria specified in the preliminary plan, but must
56-17 select the utility's own bid instead of rejecting that bid and
56-18 applying for a certificate of convenience and necessity for a rate
56-19 base unit to satisfy that same resource need. If the utility did
56-20 not submit a bid under Subsection (s) of this section for a
56-21 non-rate-based generating plant and the results of the
56-22 solicitations and contract negotiations do not meet the supply-side
56-23 needs identified in the preliminary plan, the utility may apply for
56-24 a certificate of convenience and necessity for a utility-owned
56-25 resource addition notwithstanding the fact a solicitation was
57-1 conducted.
57-2 (m) After conducting any necessary solicitations and
57-3 negotiating contracts resulting from such solicitations, the
57-4 utility shall submit to the commission a proposed final integrated
57-5 resource plan. The proposed final plan must include:
57-6 (1) the utility's determination of the combination of
57-7 feasible and commercially viable resources that will meet the
57-8 forecasted annual energy and demand requirements on its system for
57-9 the following 10 years by providing adequate and reliable service
57-10 to its customers at the lowest reasonable system cost, taking into
57-11 account the effect of such resources upon the rates and bills of
57-12 the various classes of utility customers;
57-13 (2) the results of any solicitations;
57-14 (3) any contracts for resources;
57-15 (4) identification of any wholesale transmission
57-16 wheeling agreements that the utility determines are necessary and
57-17 the anticipated transmission charges to be incurred by the utility
57-18 in connection with such agreements;
57-19 (5) the terms and conditions under which the utility
57-20 will provide resources to meet a need identified in the preliminary
57-21 plan, if the utility accepts a bid submitted under Subsection (s)
57-22 of this section; and
57-23 (6) at the utility's option, an application for a
57-24 certificate of convenience and necessity for a new rate base
57-25 generating plant under Subsection (s) of this section;
58-1 (7) at the utility's option, a request for
58-2 certification of agreements between the utility and a purchased
58-3 power provider pursuant to Subsection (q) of this section;
58-4 (8) at the utility's option, a request for
58-5 certification of agreements between the utility and a demand-side
58-6 management services provider pursuant to Subsection (r) of this
58-7 section;
58-8 (9) at the utility's option and if not included in the
58-9 utility's preliminary plan in the current three-year integrated
58-10 resource planning cycle pursuant to Subsection (f)(5) of this
58-11 section, one or more cost recovery mechanisms consistent with
58-12 Subsection (s) of this section;
58-13 (10) at the utility's option and if not included in
58-14 the utility's preliminary plan in the current three-year integrated
58-15 resource planning cycle pursuant to Subsection (f)(6) of this
58-16 section, incentive mechanisms consistent with Subsections (t)(2)
58-17 and (t)(3) of this section; and
58-18 (11) if not included in the utility's preliminary plan
58-19 in the current three-year integrated resource planning cycle
58-20 pursuant to Subsection (f)(7) of this section, final reconciliation
58-21 of any expenses recovered through a cost recovery factor pursuant
58-22 to Subsection (t) of this section.
58-23 (n) The commission shall, upon request by any affected
58-24 person and within 90 days after a utility files its final
58-25 integrated resource plan pursuant to subsection (m) of this
59-1 section, convene a public hearing on the reasonableness and
59-2 cost-effectiveness of the proposed final plan. At the hearing, any
59-3 interested person may intervene, present evidence, and
59-4 cross-examine witnesses regarding the reasonableness and
59-5 cost-effectiveness of the proposed final plan. Parties will not be
59-6 allowed to litigate or conduct discovery on issues that were
59-7 litigated or could have been litigated in connection with the
59-8 filing of the utility's preliminary plan. To the extent permitted
59-9 by federal law, the commission may issue a written order for access
59-10 to the books, accounts, memoranda, contracts and records of any
59-11 Exempt Wholesale Generator or Power Marketer selling energy at
59-12 wholesale to a utility, if such examination is required for the
59-13 effective discharge of the commission's regulatory responsibilities
59-14 under this Act; provided, that in the event the commission issues
59-15 such an order, any such books, accounts, memoranda, contracts and
59-16 records obtained by the commission shall be confidential and not
59-17 subject to disclosure under the open records law, Chapter 552,
59-18 Government Code.
59-19 (o) Within 180 days after the filing of a proposed final
59-20 integrated resource plan, the commission shall issue a final order
59-21 approving a reasonable integrated resource plan for the utility
59-22 that will meet the utility's forecasted demands by providing
59-23 adequate and reliable service to the utility's customers at the
59-24 lowest reasonable system cost. The approved plan shall:
59-25 (1) show that it is cost-effective and was developed
60-1 in accordance with the preliminary plan and commission rules;
60-2 (2) list the total amount of new capacity forecasted
60-3 to be needed by the utility each year for the following 10 years;
60-4 (3) list the forecasted level of energy savings and
60-5 demand reduction attributable to demand-side management programs on
60-6 a yearly basis for the following 10 years;
60-7 (4) list the new supply-side capacity approved by the
60-8 Commission in connection with the current three-year integrated
60-9 resource planning cycle from one or more of the following sources:
60-10 (A) purchases of power from qualifying
60-11 facilities;
60-12 (B) purchases of power from Exempt Wholesale
60-13 Generators; provided, that if any such approved purchase is from an
60-14 affiliate of the utility, the commission shall have determined in
60-15 connection with approval of such purchase that:
60-16 (i) the transaction will benefit
60-17 consumers;
60-18 (ii) the transaction does not violate any
60-19 state law, including least cost planning;
60-20 (iii) the transaction will not provide the
60-21 utility affiliate any unfair competitive advantage by virtue of its
60-22 affiliation or association with the utility;
60-23 (iv) the transaction is in the public
60-24 interest; and
60-25 (v) the commission has sufficient
61-1 regulatory authority, resources and access to the books and records
61-2 of the utility and its affiliate to make these determinations.
61-3 (C) purchases of power from other utilities;
61-4 (D) purchases of power from a generating plant
61-5 owned by the utility for which the utility has chosen the "non-rate
61-6 base" option under subsection (s) of this section;
61-7 (E) utility-owned "rate base" generating plants;
61-8 and
61-9 (F) purchases of power from Power Marketers;
61-10 (5) contain new purchases of power by a utility only
61-11 if:
61-12 (A) the utility has determined, after giving
61-13 consideration to consistently applied regional or national
61-14 reliability standards, guidelines or criteria, that such purchase
61-15 would not unreasonably impair the continued reliability of electric
61-16 systems affected by the purchase; and
61-17 (B) the purchase can reasonably be expected to
61-18 produce benefits to customers of the purchasing utility.
61-19 (6) list the new demand-side management programs
61-20 approved by the commission in connection with the current
61-21 three-year integrated resource planning cycle, including programs
61-22 administered by the utility as well as programs administered by
61-23 third parties;
61-24 (7) include one or more cost recovery mechanisms, if
61-25 requested by the utility in its proposed final plan, consistent
62-1 with subsection (t) of this section;
62-2 (8) include incentive mechanisms, if requested by the
62-3 utility in its proposed final plan, consistent with subsections
62-4 (t)(2) and (t)(3) of this section;
62-5 (9) grant final reconciliation of all purchased power
62-6 and demand-side management program costs, if requested by the
62-7 utility in its proposed final plan, pursuant to subsection (t)(5)
62-8 of this section;
62-9 (10) show that any resource solicitations,
62-10 evaluations, selections, and rejections were conducted in
62-11 accordance with the criteria included in the preliminary plan;
62-12 (11) certificate all pending agreements between the
62-13 utility and a purchased power provider for which certification
62-14 under subsection (q) of this section was requested and that meet
62-15 the requirements of that subsection;
62-16 (12) certificate all pending agreements between the
62-17 utility and a demand-side management services provider for which
62-18 certification under subsection (r) of this section was requested
62-19 and that meet the requirements of that subsection; and
62-20 (13) grant a certificate of convenience and necessity
62-21 for all utility-owned "rate base" generating units for which
62-22 certification under subsection (s) of this section was requested
62-23 and that meet the requirements of that subsection.
62-24 (p) If the commission fails to act by the deadline specified
62-25 in subsection (o) of this section, the utility's proposed final
63-1 plan shall automatically be deemed approved and shall constitute
63-2 the approved integrated resource plan for that utility, and all
63-3 requested certifications, cost recovery factors, incentive
63-4 mechanisms, and final reconciliation of all purchased power and
63-5 demand-side management costs pursuant to Subsection (t)(5) of this
63-6 section shall automatically be deemed granted. A utility shall not
63-7 be subject to a ratemaking disallowance relating to the
63-8 reasonableness of its decision to select a resource contained in an
63-9 approved integrated resource plan.
63-10 (q)(1) If a utility and a purchased power provider enter
63-11 into an agreement providing for the purchase of capacity, the
63-12 utility may submit a copy of the agreement to the commission for
63-13 certification under this Subsection (q) of this section. The
63-14 agreement may provide that it is contingent on that certification.
63-15 (2) Certification may be requested by the utility as
63-16 part of an integrated resource plan filing made pursuant to
63-17 Subsection (m) of this section, or may be requested in a separate
63-18 proceeding brought solely for that purpose. If certification is
63-19 requested in a separate proceeding, the commission shall make its
63-20 determination under this Subsection within 90 days after the date
63-21 that the agreement is submitted.
63-22 (3) The commission shall certificate the agreement if:
63-23 (A) the agreement is consistent with that
63-24 utility's most recently approved integrated resource plan or, for
63-25 an agreement considered contemporaneous with an integrated resource
64-1 plan filing, is consistent with the plan approved therein by the
64-2 commission; and
64-3 (B) for agreements where the purchased power is
64-4 to be provided by the purchased power provider from a specific
64-5 generating plant or plants, the agreement provides the utility the
64-6 opportunity to acquire the generating facilities before those
64-7 facilities are offered to another purchaser in the event of their
64-8 abandonment, or provides other sufficient assurance that the
64-9 utility will be provided with a comparable supply of electricity,
64-10 if the purchased power provider ceases to operate the generating
64-11 facilities.
64-12 (4) If the commission fails to make a decision by the
64-13 deadline in Subdivision (2) of this Subsection (q) of this section
64-14 or in Subsection (o) of this section, the agreement is deemed to
64-15 meet the requirements of Subdivision (3) of this Subsection (q) of
64-16 this section and certification is deemed granted.
64-17 (5) Certification under this Subsection (q) of this
64-18 section shall be effective until the earlier of 35 years after the
64-19 date of the certification or the expiration date of the agreement.
64-20 (6) In setting the utility's rates for a period during
64-21 which the certification under this Subsection (q) of this section
64-22 is effective, the regulatory authority shall consider payments made
64-23 under the agreement, and any markup requested by the utility
64-24 pursuant to Subsection (t) of this section, to be reasonable and
64-25 necessary operating expenses of the utility. The regulatory
65-1 authority shall allow full, concurrent, and monthly recovery of the
65-2 amount of such payments and markup.
65-3 (r) (1) If a utility and a demand-side management services
65-4 provider enter into an agreement providing for the provision of
65-5 demand-side management services, the utility may submit a copy of
65-6 the agreement to the commission for certification under this
65-7 Subsection (r) of this section. The agreement may provide that it
65-8 is contingent on that certification.
65-9 (2) Certification may be requested by the utility as
65-10 part of an integrated resource plan filing made pursuant to
65-11 Subsection (m) of this section, or may be requested in a separate
65-12 proceeding brought solely for that purpose. If certification is
65-13 requested in a separate proceeding, the commission shall make its
65-14 determination under this Subsection (r) of this section within 90
65-15 days after the date that the agreement is submitted.
65-16 (3) The commission shall certificate the agreement if
65-17 the agreement is consistent with that utility's most recently
65-18 approved integrated resource plan or, for an agreement considered
65-19 contemporaneous with an integrated resource plan filing, is
65-20 consistent with the plan approved therein by the commission.
65-21 (4) If the commission fails to make a decision by the
65-22 deadline in Subdivision (2) of this Subsection (r) of this section
65-23 or in Subsection (o) of this section, the agreement is deemed to
65-24 meet the requirements of Subdivision (3) of this Subsection (r) of
65-25 this section and certification is deemed granted.
66-1 (5) Certification under this Subsection (r) of this
66-2 section shall be effective until the earlier of 10 years after the
66-3 date of the certification or the expiration date of the agreement.
66-4 (6) In setting the utility's rates for a period during
66-5 which the certification under this Subsection (r) of this section
66-6 is effective, the regulatory authority shall consider payments made
66-7 under the agreement, and any markup requested by the utility
66-8 pursuant to Subsection (t) of this section, to be reasonable and
66-9 necessary operating expenses of the utility. The regulatory
66-10 authority shall allow full, concurrent, and monthly recovery of the
66-11 amount of such payments and markup.
66-12 (s) (1) This Subsection (s) of this section controls the
66-13 right of a utility to build an electric generating unit. Except as
66-14 set out in Subdivision (3) of this Subsection (s) of this section
66-15 or in Subsection (u) of this section, a utility proposal to
66-16 construct a generating unit to serve its own customers may only be
66-17 made as part of an integrated resource plan filing made pursuant to
66-18 Subsection (m) of this section. A utility may elect to treat a
66-19 proposed generating unit under the invested capital "rate base"
66-20 provisions of Subtitle E of Title II of this Act, or it may elect
66-21 to treat the capacity from the proposed generating unit as a
66-22 "non-rate base" resource that is in competition with all other
66-23 supply-side resource proposals for inclusion in the final
66-24 commission-approved integrated resource plan. For each unit
66-25 proposed, the utility shall specify whether that unit shall be
67-1 treated as a "rate base" unit or as a "non-rate base" unit.
67-2 (2) For a "rate base" unit, a utility shall be granted
67-3 a certificate of convenience and necessity for the unit upon
67-4 showing the following:
67-5 (A) the unit is consistent with the integrated
67-6 resource plan approved contemporaneous with the request for a
67-7 certificate of convenience and necessity or, if the request for a
67-8 certificate of convenience and necessity is not made
67-9 contemporaneous with an integrated resource plan filing, the unit
67-10 is consistent with the goals of the utility's most recently
67-11 approved integrated resource plan; and
67-12 (B) the proposed location of the unit will not,
67-13 for the immediately surrounding area, have an unreasonable impact
67-14 on such site-specific factors as community values, recreational and
67-15 park areas, historical and aesthetic values, and environmental
67-16 integrity.
67-17 (3) No certificate of convenience and necessity is
67-18 required for a proposed "rate base" generating unit that is a
67-19 distributed resource with a planned capacity of less than 10
67-20 megawatts or a facility to be installed for purposes of research
67-21 and development, regardless of whether the unit is connected to the
67-22 utility's grid. A unit described in this Subdivision (3) may be
67-23 built any time after the commission is advised in writing by the
67-24 utility of its intent to build the unit, regardless of whether the
67-25 unit is contained in the utility's approved integrated resource
68-1 plan.
68-2 (4) A generating unit that has been certificated under
68-3 Subdivision (2) of this Subsection (s) of this section or for which
68-4 no certificate of convenience and necessity is required under
68-5 Subdivision (3) of this Subsection (s) of this section shall be
68-6 accorded ratemaking treatment in the manner prescribed by Subtitle
68-7 E of Title II of this Act.
68-8 (5) For a "non-rate base" unit, approval of the "bid"
68-9 and inclusion of such unit in the utility's approved integrated
68-10 resource plan under Subsection (o)(4)(D) of this section grants the
68-11 utility the right to construct the unit without further commission
68-12 review or oversight. The cost that the utility incurs in building
68-13 the approved "non-rate base" generating unit shall not be included
68-14 in invested capital. The utility shall instead recover through
68-15 rates the price of the capacity and energy specified in the "bid"
68-16 approved by the commission in the same general manner that the
68-17 utility recovers the cost of purchased power, including the
68-18 recovery of such costs through a cost recovery factor implemented
68-19 pursuant to Subsection (t) of this section. Should the actual cost
68-20 to construct the "non-rate base" generating unit differ from that
68-21 anticipated at the time the "bid" was approved by the commission,
68-22 the difference, along with any federal income tax consequences
68-23 thereof, shall be borne entirely by, or accrue entirely to, the
68-24 shareholders of the utility. A utility shall not be subject to a
68-25 ratemaking disallowance or adjustment for excess capacity as a
69-1 result of completing and providing power from an approved "non-rate
69-2 base" unit.
69-3 (t) (1) The commission shall approve one or more cost
69-4 recovery factors, if requested by the utility. Cost recovery
69-5 factors shall permit the utility to recover through rates, using a
69-6 factor that will adjust monthly:
69-7 (A) the amount of demand-side management costs
69-8 incurred by the utility, including the price of any demand-side
69-9 management program "bid" by the utility;
69-10 (B) the amount of purchased power capacity and
69-11 energy costs and transmission wheeling costs; and
69-12 (C) the amount of utility "non-rate base"
69-13 generating unit prices.
69-14 (2) Any cost recovery factor established for recovery
69-15 of demand-side management program costs shall include the costs
69-16 incurred by the utility to promote energy conservation by its
69-17 customers, reduce its peak demand, shift demand from on-peak
69-18 periods to off-peak periods, improve the utility's load factor, or
69-19 for any other reasonable action taken by the utility to influence
69-20 its customers' usage of electric power and energy so as to conserve
69-21 energy or capital or to permit the more efficient utilization of
69-22 the utility's facilities, together with a markup added to such
69-23 costs or other mechanism, as determined by the commission, to make
69-24 such demand-side management activities as profitable to the utility
69-25 as its investments in new generation, transmission, and
70-1 distribution facilities. The factors allowed should serve to
70-2 encourage the utility to incur such demand-side management costs.
70-3 (3) Any cost recovery factor established for recovery
70-4 of purchased power costs shall include the costs incurred by the
70-5 utility for the purchase of capacity and energy, together with a
70-6 markup added to such costs or other mechanism, as determined by the
70-7 commission, to reasonably compensate the utility for financial
70-8 risks, if any, to the utility associated with purchased power
70-9 obligations and the value-added by the utility in making the
70-10 purchased power available to its customers. The factors allowed
70-11 should serve to encourage the utility to incur such purchased power
70-12 costs.
70-13 (4) Any cost recovery factor established in accordance
70-14 with this Subsection (t) of this section shall be designed to
70-15 allocate costs to the various rate classes in the same manner as
70-16 such costs are allocated in the utility's last rate case.
70-17 (5) The commission shall make a final reconciliation
70-18 determination as to whether the costs recovered through a cost
70-19 recovery factor are consistent with the commission's prior approval
70-20 of the resource in connection with a rate proceeding filed under
70-21 Section 2.212 of this Act, and in connection with a preliminary
70-22 integrated resource plan filing under Subsection (f) of this
70-23 section or an integrated resource plan filing under Subsection (m)
70-24 of this section.
70-25 (6) An integrated resource plan filing shall not be
71-1 considered a rate case under Section 2.212 of this Act.
71-2 (u) (1) Consistent with the utility's last approved
71-3 integrated resource planning goals, the utility may add new or
71-4 incremental resources outside the solicitation process such as:
71-5 (A) contract renegotiation for existing capacity
71-6 from non-affiliated power generating facilities;
71-7 (B) non-affiliated demand-side management
71-8 programs or renewable resources;
71-9 (C) capacity purchases with terms of two years
71-10 or less from non-affiliated power suppliers or capacity purchases
71-11 necessary to satisfy unanticipated emergency conditions;
71-12 (D) the exercise of an option in a purchased
71-13 power contract with an unaffiliated supplier; and
71-14 (E) renewable distributed resources, located at
71-15 or near the point of consumption, if they are less costly than
71-16 transmission extensions or upgrades.
71-17 (2) The addition of new or incremental resources by a
71-18 utility under this Subsection (u) of this section shall not require
71-19 an amendment to the utility's integrated resource plan.
71-20 (v) In this section, "utility" means any person,
71-21 corporation, river authority, political subdivision or agency,
71-22 cooperative corporation, or any combination thereof, now or
71-23 hereafter providing retail electric service to an ultimate consumer
71-24 of electricity in Texas; provided, that a qualifying cogenerator
71-25 making retail sales of electric energy in this state to the sole
72-1 purchaser of the thermal output of the qualifying facility shall
72-2 not for that reason be deemed to be providing retail electric
72-3 service for the purpose of this section.
72-4 (w) Notwithstanding any other provision of this Act,
72-5 judicial review of an order of the commission entered pursuant to
72-6 this section of this Act shall be under the substantial evidence
72-7 rule and shall be initiated by filing, not later than the 30th day
72-8 after the date on which the decision is final and appealable, a
72-9 petition for review in the Court of Appeals for the Third Court of
72-10 Appeals District. The court of appeals shall give precedence to
72-11 deciding such cases. <ELECTRICAL FORECAST. (a) The commission
72-12 shall develop a long-term statewide electrical energy forecast
72-13 which shall be sent to the governor biennially. The forecast will
72-14 include an assessment of how alternative energy sources,
72-15 conservation, and load management will meet the state's electricity
72-16 needs.>
72-17 <(b) Every generating electric utility in the state shall
72-18 prepare and transmit to the commission by December 31, 1983, and
72-19 every two years thereafter a report specifying at least a 10-year
72-20 forecast for assessments of load and resources for its service
72-21 area. The report shall include a list of facilities which will be
72-22 required to supply electric power during the forecast periods. The
72-23 report shall be in a form prescribed by the commission. The report
72-24 shall include:>
72-25 <(1) a tabulation of estimated peak load, resources,
73-1 and reserve margins for each year during the forecast or assessment
73-2 period;>
73-3 <(2) a list of existing electric generating plants in
73-4 service with a description of planned and potential generating
73-5 capacity at existing sites;>
73-6 <(3) a list of facilities which will be needed to
73-7 serve additional electrical requirements identified in the
73-8 forecasts or assessments, the general location of such facilities,
73-9 and the anticipated types of fuel to be utilized in the proposed
73-10 facilities, including an estimation of shutdown costs and disposal
73-11 of spent fuel for nuclear power plants;>
73-12 <(4) a description of additional system capacity which
73-13 might be achieved through, among other things, improvements in:>
73-14 <(A) generating or transmission efficiency;>
73-15 <(B) importation of power;>
73-16 <(C) interstate or interregional pooling;>
73-17 <(D) other improvements in efficiencies of
73-18 operation; and>
73-19 <(E) conservation measures;>
73-20 <(5) an estimation of the mix and type of fuel
73-21 resources for the forecast or assessment period;>
73-22 <(6) an annual load duration curve and a forecast of
73-23 anticipated peak loads for the forecast or assessment period for
73-24 the residential, commercial, industrial, and such other major
73-25 demand sectors in the service area of the electric utility as the
74-1 commission shall determine; and>
74-2 <(7) a description of projected population growth,
74-3 urban development, industrial expansion, and other growth factors
74-4 influencing increased demand for electric energy and the basis for
74-5 such projections.>
74-6 <(c) The commission shall establish and every electric
74-7 utility shall utilize a reporting methodology for preparation of
74-8 the forecasts of future load and resources.>
74-9 <(d) The commission shall review and evaluate the electric
74-10 utilities' forecast of load and resources and any public comment on
74-11 population growth estimates prepared by Bureau of Business
74-12 Research, University of Texas at Austin.>
74-13 <(e) Within 12 months after the receipt of the reports
74-14 required by this section, the commission shall hold a public
74-15 hearing and subsequently issue a final report to the governor and
74-16 notify every electric utility of the commission's electric forecast
74-17 for that utility. The commission shall consider its electric
74-18 forecast in all certification proceedings covering new generation
74-19 plant.>
74-20 SECTION 2.05. Subsections (a) and (e), Section 2.101, Public
74-21 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts
74-22 of the 74th Legislature, Regular Session, 1995, are amended to read
74-23 as follows:
74-24 (a) Subject to the limitations imposed in this Act and the
74-25 provisions of sections 2.2011 and 2.211 of this Act, and for the
75-1 purpose of regulating rates and services so that such rates may be
75-2 fair, just, and reasonable, and the services adequate and
75-3 efficient, the governing body of each municipality shall have
75-4 exclusive original jurisdiction over all retail electric utility
75-5 rates, operations, and services provided by an electric utility
75-6 within its city or town limits.
75-7 (e) The commission shall have exclusive original
75-8 jurisdiction over electric utility rates, operations, and services
75-9 not within the incorporated limits of a municipality exercising
75-10 exclusive original jurisdiction over those rates, operations, and
75-11 services as provided in this Act, and shall have exclusive original
75-12 jurisdiction over electric utility rates in both the incorporated
75-13 limits of all municipalities and in unincorporated areas for the
75-14 purposes of section 2.2011 of this Act.
75-15 SECTION 2.06. Section 2.105 of the Public Utility Regulatory
75-16 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
75-17 Legislature, Regular Session, 1995, is amended to read as follows:
75-18 Sec. 2.105. RATE DETERMINATION. (a) Any municipality
75-19 regulating its electric utilities pursuant to this Act may <shall>
75-20 require from those utilities all necessary data to make a
75-21 <reasonable> determination of just and reasonable rates <base,
75-22 expenses, investment, and rate of return> within the municipal
75-23 boundaries.
75-24 (b) The standards for such determination shall be based on
75-25 the procedures and requirements of this Act and said municipality
76-1 shall retain any and all personnel necessary to make the
76-2 determination of just and reasonable rates required under this Act.
76-3 SECTION 2.07. Section 2.108 of the Public Utility Regulatory
76-4 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
76-5 Legislature, Regular Session, 1995, is amended by amending
76-6 Subsections (a), (f), and (g) and adding Subsection (h) to read as
76-7 follows:
76-8 (a) A<ny> party to any <a rate> proceeding before the
76-9 governing body of a municipality involving the rates, operations,
76-10 or services of electric utilities may appeal the decision of the
76-11 governing body to the commission.
76-12 (f) For all proceedings involving the rates, operations, or
76-13 services of electric utilities before a municipality, <T>the appeal
76-14 process shall be instituted within 30 days of the final decision by
76-15 the governing body with the filing of a petition for review with
76-16 the commission and copies served on all parties to the original
76-17 <rate> proceeding before the municipality.
76-18 (g) The commission shall hear such appeal de novo, and if
76-19 the case involves the setting of rates, the commission shall hear
76-20 such appeal de novo based on the test year presented to the
76-21 municipality, and by its final order shall <fix such rates> make
76-22 such order as the municipality should have <fixed> made in the
76-23 ordinance from which the appeal was taken. In the event that the
76-24 commission fails to enter its final order in a proceeding involving
76-25 the setting of rates: (1) for proceedings involving the rates of
77-1 a municipally owned utility, within 185 days from the date on which
77-2 the appeal is perfected or on which the utility files a rate
77-3 application as prescribed by Subsection (c) of this section; or (2)
77-4 for proceedings in which similar relief has also been concurrently
77-5 sought from the commission under its original jurisdiction, within
77-6 120 days from the date such appeal is perfected or the date upon
77-7 which final action must be taken in the similar proceedings so
77-8 filed with the commission whichever shall last occur; or (3) in
77-9 all other proceedings, within 185 days from the date such appeal is
77-10 perfected, the schedule of rates proposed by the utility shall be
77-11 deemed to have been approved by the commission and effective upon
77-12 the expiration of said applicable period. Any rates, whether
77-13 temporary or permanent, set by the commission shall be prospective
77-14 and observed from and after the applicable order of the commission,
77-15 except interim rate orders necessary to effect uniform system-wide
77-16 rates. In all appeals that do not involve the setting of rates,
77-17 the commission shall enter its final order within 185 days from the
77-18 date on which the appeal is perfected.
77-19 (h) No ordinance of a municipality involving the rates,
77-20 operations, or services of an electric utility shall take effect
77-21 until 30 days after the final approval thereof by the governing
77-22 body of the municipality and any ordinance of a municipality
77-23 involving the rates, operations, or services of an electric utility
77-24 shall be automatically stayed upon the filing of an appeal to the
77-25 commission.
78-1 SECTION 2.08. Subsection (b), Section 2.154, Public Utility
78-2 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
78-3 74th Legislature, Regular Session, 1995, is amended to read as
78-4 follows:
78-5 (b) Every electric utility shall file with, and as a part of
78-6 such schedules, all rules and regulations relating to or affecting
78-7 the rates, electric utility service, product, or commodity
78-8 furnished by such utility. Prices being charged to individual
78-9 customers for retail electric service need not be filed with the
78-10 regulatory authority. The regulatory authority shall consider any
78-11 price to an individual customer filed with it as a trade secret
78-12 document and shall prevent disclosure of such material; such
78-13 information shall not be subject to disclosure under the open
78-14 records law, Chapter 552, Government Code.
78-15 SECTION 2.09. Subtitle E, Title II, Public Utility
78-16 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
78-17 74th Legislature, Regular Session, 1995, is amended by adding
78-18 Section 2.2011 to read as follows:
78-19 Sec. 2.2011. PARTIAL RATE DEREGULATION OF ELECTRIC
78-20 DISTRIBUTION COOPERATIVES. (a) An electric cooperative
78-21 corporation that provides retail electric utility service at
78-22 distribution voltage is exempt from rate regulation if a majority
78-23 of the members voting in an election on the deregulation of the
78-24 electric cooperative vote to approve the exemption and the electric
78-25 cooperative sends notice of the action to each applicable
79-1 regulatory authority. An electric cooperative that wants to hold
79-2 an election under this section shall send a ballot by mail to each
79-3 electric cooperative member. The electric cooperative may include
79-4 the ballot in a monthly billing. The ballot shall provide for
79-5 voting for or against rate deregulation of the electric
79-6 cooperative. If the proposition is approved, the electric
79-7 cooperative shall send each ballot to the commission not later than
79-8 the 10th day after the date the electric cooperative counts the
79-9 ballots. Based on the ballots received, the commission shall
79-10 administratively certify that the electric cooperative is or is not
79-11 deregulated for rate-making purposes. An electric cooperative may
79-12 not hold another election on the issue of being exempt from rate
79-13 regulation before the first anniversary of the most recent election
79-14 on the issue. Subsections (b) through (n) of this section apply to
79-15 an electric cooperative that has elected to be exempt from rate
79-16 regulation.
79-17 (b) No regulatory authority shall fix and regulate the rates
79-18 of an electric cooperative that has made an election under this
79-19 section to be exempt from rate regulation except as provided for
79-20 the commission in Subsections (g) and (i) of this section.
79-21 Notwithstanding Subsection (a) of Section 2.101 of this Act, the
79-22 commission has exclusive original jurisdiction in all of the
79-23 electric cooperative's service area in a proceeding initiated under
79-24 Subsection (g) or (i) of this section.
79-25 (c) An electric cooperative may change its rates by:
80-1 (1) adopting a resolution approving the proposed
80-2 change;
80-3 (2) mailing notice of the proposed change to:
80-4 (A) the commission;
80-5 (B) each affected municipality;
80-6 (C) each affected customer, which notice may be
80-7 included in a monthly billing; and
80-8 (D) each electric utility providing retail
80-9 service in the electric cooperative's service area or in the
80-10 adjoining service area; and
80-11 (3) making available at each of the electric
80-12 cooperative's business offices for review by all interested persons
80-13 a cost-of-service study that:
80-14 (A) is not more than five years old at the time
80-15 the electric cooperative adopts rates under this subsection; and
80-16 (B) bears the certification of a professional
80-17 engineer or certified public accountant.
80-18 (d) (1) The notice required by Subsection (c) of this
80-19 section must contain the following information:
80-20 (A) the increase or decrease in total operating
80-21 revenues over actual test year revenues or over test year revenues
80-22 adjusted to annualize the recovery of changes in the cost of
80-23 purchased electricity, stated both as a dollar amount and as a
80-24 percentage;
80-25 (B) the classes of utility customers affected
81-1 and the creation and application of any new rate classes;
81-2 (C) the increase or decrease for each class
81-3 stated as a percentage of actual test year revenues for the class
81-4 or of test year revenues for the class adjusted to annualize the
81-5 recovery of changes in the cost of purchased electricity;
81-6 (D) a statement that the commission may review
81-7 the rate change if the commission receives a petition in accordance
81-8 with Subsection (g) of this section;
81-9 (E) the address and telephone number of the
81-10 commission;
81-11 (F) a statement that a customer opposed to the
81-12 rate change should notify the electric cooperative in writing of
81-13 the person's opposition and should provide a return address; and
81-14 (G) a statement that members may review a copy
81-15 of any written opposition the electric cooperative receives.
81-16 (2) The electric cooperative may not be required to
81-17 include additional information in the notice.
81-18 (e) The electric cooperative shall make available for review
81-19 by a member of the cooperative at each of the electric
81-20 cooperative's business offices a copy of any written opposition to
81-21 the rate change the electric cooperative receives.
81-22 (f) The electric cooperative shall file tariffs with the
81-23 commission. If the electric cooperative complies with Subsection
81-24 (c) of this section, the commission shall approve the tariffs not
81-25 later than the 10th day after the 60-day period prescribed by
82-1 Subsection (g) of this section expires, unless a review is required
82-2 under Subsection (g) or (i) of this section. If the tariffs are
82-3 approved or if a review is not required and the commission fails to
82-4 act during the period prescribed by this subsection, the change in
82-5 rates takes effect on the 70th day after the date on which the
82-6 electric cooperative first complies with all requirements of
82-7 Subsection (c) of this section or on a later date determined by the
82-8 electric cooperative. Except as provided by Subsections (g) and
82-9 (i) of this section, the rates of the electric cooperative are not
82-10 subject to review.
82-11 (g) The commission shall review a change in rates under this
82-12 section if, not later than the 60th day after the date the electric
82-13 cooperative first complies with all requirements of Subsection (c)
82-14 of this section, the commission receives a petition requesting
82-15 review signed by:
82-16 (1) at least 10 percent of the members of the electric
82-17 cooperative;
82-18 (2) members of the electric cooperative who purchased
82-19 more than 50 percent of the electric cooperative's annual energy
82-20 sales to a customer class in the test year, provided that the
82-21 petition includes a certification of the purchases; or
82-22 (3) an executive officer of an affected electric
82-23 utility, provided that the petition prescribes the particular class
82-24 or classes for which a review is requested.
82-25 (h) When a person files a petition under Subsection (g) of
83-1 this section, the person shall notify the electric cooperative in
83-2 writing of the action.
83-3 (i) The commission may on its own motion review the rates of
83-4 an electric cooperative if the commission first finds that there is
83-5 good cause to believe that the electric cooperative is earning more
83-6 than a reasonable return on overall system revenues or on revenue
83-7 from a rate class.
83-8 (j) The commission shall conduct a review under Subdivision
83-9 (1) or (2) of Subsection (g) of this section or under Subsection
83-10 (i) of this section in accordance with Section 2.212 of this Act
83-11 and the other applicable rate-setting principles of this Title II
83-12 of this Act, except that:
83-13 (1) the period for review does not begin until the
83-14 electric cooperative files a rate-filing package as required by
83-15 commission rules;
83-16 (2) the proposed change may not be suspended during
83-17 the pendency of the review; however, the electric cooperative shall
83-18 refund or credit against future bills all sums collected in excess
83-19 of the rate finally set by the commission, if the commission so
83-20 orders; and
83-21 (3) the electric cooperative shall observe the rates
83-22 set by the commission until the rates are changed as provided by
83-23 this section or by other sections of this Act.
83-24 (k) For a review conducted under Subdivision (3) of
83-25 Subsection (g) of this section, the electric cooperative shall file
84-1 with the commission a copy of the cost-of-service study required
84-2 under Subsection (c)(3) of this section not later than the 10th day
84-3 after the date the electric cooperative receives from the affected
84-4 electric utility notice that a petition has been filed. The
84-5 commission shall determine for each class for which review has been
84-6 requested the annual cost of providing service to the class, as
84-7 stated in the electric cooperative's cost-of-service study, and the
84-8 revenues for the class that would be produced by multiplying the
84-9 rate set by the electric cooperative by the annual billing units
84-10 for the class, as stated in the cost-of-service study. If the
84-11 electric cooperative proposes a rate class solely for a new
84-12 customer, the electric cooperative shall estimate the reasonable
84-13 annual cost of providing service to the class, and the electric
84-14 cooperative shall base class revenues on reasonable estimates of
84-15 billing units.
84-16 (l) The rate for each class for which review has been
84-17 requested under Subdivision (3) of Subsection (g) of this section
84-18 is suspended during the pendency of the review. The commission
84-19 shall dismiss the petition and approve the rates if the revenues
84-20 for the class are equal to or greater than the cost of providing
84-21 service to the class. The commission shall disapprove the rate if
84-22 the revenues for the class are less than the cost of providing
84-23 service to the class; however, this action does not affect
84-24 reconsideration of the rate as a part of any subsequent rate-making
84-25 proceeding. The rate adopted by the electric cooperative is deemed
85-1 approved and may be placed into effect if the commission fails to
85-2 make its final determination administratively not later than the
85-3 45th day after the date the electric cooperative files its
85-4 cost-of-service study.
85-5 (m) Except as provided by Subsection (a) of this section,
85-6 the members of an electric cooperative may at any time revoke the
85-7 electric cooperative's election to be exempt from rate regulation
85-8 or elect to again be exempt from rate regulation by majority vote
85-9 of the members voting.
85-10 (n) This section does not affect the application of other
85-11 provisions of this Act not directly related to rates or to the
85-12 authority of the commission to require an electric cooperative to
85-13 file reports required under this Act or rules adopted by the
85-14 commission. A service fee or a service rule or regulation set by
85-15 the electric cooperative under this section must comply with
85-16 commission rules applicable to all electric utilities. The
85-17 commission may determine whether an electric cooperative has
85-18 unlawfully charged, collected, or received a rate for electric
85-19 utility service.
85-20 SECTION 2.10. Section 2.202, Public Utility Regulatory Act
85-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
85-22 Regular Session, 1995, is amended to read as follows:
85-23 Sec. 2.202. JUST AND REASONABLE RATES. It shall be the duty
85-24 of the regulatory authority to insure that every rate made,
85-25 demanded, or received by any electric utility, or by any two or
86-1 more electric utilities jointly, shall be just and reasonable.
86-2 Rates approved by the regulatory authority may not be unreasonably
86-3 preferential, prejudicial, or discriminatory, but shall be
86-4 sufficient, equitable, and consistent in application to each class
86-5 of consumers. Prices that are charged to individual customers for
86-6 retail electric service may be no higher than the rate approved by
86-7 the regulatory authority. For ratemaking purposes, the commission
86-8 may treat two or more municipalities served by an electric utility
86-9 as a single class wherever it deems such treatment to be
86-10 appropriate.
86-11 SECTION 2.11. Subsection (b), Section 2.203, Public Utility
86-12 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
86-13 74th Legislature, Regular Session, 1995, is amended to read as
86-14 follows:
86-15 (b) In fixing a reasonable return on invested capital, the
86-16 regulatory authority shall consider, in addition to other
86-17 applicable factors, efforts to comply with the utility's most
86-18 recent approved integrated resource plan <statewide energy plan,
86-19 the efforts and achievements of such utility in the conservation of
86-20 resources>, the quality of the utility's services, the efficiency
86-21 of the utility's operations, and the quality of the utility's
86-22 management.
86-23 SECTION 2.12. Subsection (b), Section 2.208, Public Utility
86-24 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
86-25 74th Legislature, Regular Session, 1995, is amended to read as
87-1 follows:
87-2 (b) TRANSACTIONS WITH AFFILIATED INTERESTS. Payment to
87-3 affiliated interests for costs of any services, or any property,
87-4 right or thing, or for interest expense may not be allowed either
87-5 as capital cost or as expense except to the extent that the
87-6 regulatory authority shall find such payment to be reasonable and
87-7 necessary for each item or class of items as determined by the
87-8 commission, provided that nothing herein requires such findings to
87-9 be made prior to the inclusion of such payments in the utility's
87-10 charges to consumers so long as there is a mechanism for making
87-11 such charges subject to refund pending the making of such findings
87-12 and provided further that no such findings are required where such
87-13 charges have been incurred in connection with a service contracted
87-14 by the utility as part of the utility's integrated resource plan
87-15 approved pursuant to Section 2.051 of this Act. <Any such finding
87-16 shall include specific findings of the reasonableness and necessity
87-17 of each item or class of items allowed and a finding that the price
87-18 to the utility is no higher than prices charged by the supplying
87-19 affiliate to its other affiliates or divisions for the same item or
87-20 class of items, or to unaffiliated persons or corporations. The
87-21 price paid by gas utilities to affiliated interests for natural gas
87-22 from Outer Continental Shelf lands shall be subject to a rebuttable
87-23 presumption that such price is reasonable if the price paid does
87-24 not exceed the price permitted by federal regulation if such gas is
87-25 regulated by a federal agency or if not regulated by a federal
88-1 agency does not exceed the price paid by nonaffiliated parties for
88-2 natural gas from Outer Continental Shelf lands. The burden of
88-3 establishing that such a price paid is not reasonable shall be on
88-4 any party challenging the reasonableness of such price.>.
88-5 SECTION 2.13. Section 2.211, Public Utility Regulatory Act
88-6 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
88-7 Regular Session, 1995, is amended to read as follows:
88-8 Sec. 2.211. UNREASONABLE OR VIOLATIVE EXISTING RATES;
88-9 INVESTIGATING COSTS OF OBTAINING SERVICE FROM ANOTHER SOURCE. (a)
88-10 Whenever the regulatory authority, after reasonable notice and
88-11 hearing, on its own motion or on complaint by any affected person,
88-12 finds that the existing retail rates of any electric utility for
88-13 any service are unreasonable or in any way in violation of any
88-14 provision of law, the regulatory authority shall determine the just
88-15 and reasonable retail rates, including maximum or minimum rates, to
88-16 be thereafter observed and in force, and shall fix the same by
88-17 order to be served on the electric utility; and such retail rates
88-18 shall constitute the legal rates of the electric utility until
88-19 changed as provided in this Act. In making the decision to proceed
88-20 with an inquiry under this Subsection (a) of this section, the
88-21 regulatory authority shall apply ratemaking principles adopted by
88-22 the commission in the electric utility's last rate case so long as
88-23 such ratemaking principles remain consistent with provisions of
88-24 this Act. <Whenever an electric utility does not itself produce or
88-25 generate that which it distributes, transmits, or furnishes to the
89-1 public for compensation, but obtains the same from another source,
89-2 the regulatory authority shall have the power and authority to
89-3 investigate the cost of such production or generation in any
89-4 investigation of the reasonableness of the rates of such electric
89-5 utility.>
89-6 (b) Not later than the 120th day after the regulatory
89-7 authority notifies the electric utility that it has decided to
89-8 proceed with an inquiry under Subsection (a) of this section
89-9 relating to the retail rates of the utility, the utility shall file
89-10 a rate-filing package with the regulatory authority. The
89-11 regulatory authority may grant an extension of the 120-day period
89-12 or waive the rate-filing package requirement for good cause or upon
89-13 the agreement of the parties. The regulatory authority shall make
89-14 a final determination concerning the matter not later than the
89-15 185th day after the date on which the utility files the rate-filing
89-16 package or, if no rate-filing package is required, no later than
89-17 the 185th day after the requirement of a rate-filing package has
89-18 been waived. However, the 185-day period is extended two days for
89-19 each one day of hearings on the merits of the case that exceeds 15
89-20 days.
89-21 (c) The retail rates charged by the electric utility on the
89-22 date that the utility is notified that the regulatory authority has
89-23 decided to proceed with an inquiry under Subsection (a) of this
89-24 section shall automatically become temporary rates on the 120th day
89-25 after such notification. On issuance of an order concerning the
90-1 reasonableness of the utility's rates, the regulatory authority
90-2 shall require the utility to refund to customers or to credit
90-3 against future bills all sums collected during the period in which
90-4 those temporary retail rates were in effect that are in excess of
90-5 the rate finally ordered, plus interest at the current rate as
90-6 finally determined by the regulatory authority or, if the amounts
90-7 collected during the period in which the temporary retail rates
90-8 were in effect are less than the amounts that would have been
90-9 collected under the rate finally ordered, the regulatory authority
90-10 shall authorize the utility to surcharge bills to recover the
90-11 difference between those amounts, plus interest on the amount of
90-12 the difference at the current rate as finally determined by the
90-13 regulatory authority.
90-14 SECTION 2.14. Subsections (a), (c), (e), and (g), Section
90-15 2.212, Public Utility Regulatory Act of 1995, as enacted by S.B.
90-16 No. 319, Acts of the 74th Legislature, Regular Session, 1995, are
90-17 amended to read as follows:
90-18 (a) Except as provided in Section 2.2011 of this Act, <A> a
90-19 utility may not make changes in its rates except by filing a
90-20 statement of intent concurrently with the office and with the
90-21 regulatory authority having original jurisdiction at least 35 days
90-22 prior to the effective date of the proposed change. The statement
90-23 of intent shall include proposed revisions of tariffs and schedules
90-24 and a statement specifying in detail each proposed change, the
90-25 effect the proposed change is expected to have on the revenues of
91-1 the company, the classes and numbers of utility consumers affected,
91-2 and such other information as may be required by the regulatory
91-3 authority's rules and regulations. A copy of the statement of
91-4 intent shall be mailed or delivered to the appropriate officer of
91-5 each affected municipality, and notice shall be given by
91-6 publication in conspicuous form and place of a notice to the public
91-7 of such proposed change once in each week for four successive weeks
91-8 prior to the effective date of the proposed change in a newspaper
91-9 having general circulation in each county containing territory
91-10 affected by the proposed change, and by mail to such other affected
91-11 persons as may be required by the regulatory authority's rules and
91-12 regulations. The regulatory authority may waive the publication of
91-13 notice requirement prescribed by this subsection in a proceeding
91-14 that involves a rate reduction for all affected ratepayers only.
91-15 The applicant shall give notice of the proposed rate change by mail
91-16 to all affected utility customers. The regulatory authority by
91-17 rule shall also define other proceedings for which the publication
91-18 of notice requirement prescribed by this subsection may be waived
91-19 on a showing of good cause, provided that a waiver may not be
91-20 granted in any proceeding involving a rate increase to any class or
91-21 category of ratepayer.
91-22 (c) Whenever there is filed with the Regulatory Authority
91-23 any schedule modifying or resulting in a change in any rates then
91-24 in force, the Regulatory Authority shall on complaint by any
91-25 affected person or may on its own motion, at any time within 30
92-1 days from the date when such change would or has become effective,
92-2 and, if it so orders, without answer or other formal pleading by
92-3 the utility, but on reasonable notice, including notice to the
92-4 governing bodies of all affected municipalities and counties, enter
92-5 on a hearing to determine the propriety of such change. The
92-6 Regulatory Authority shall hold such a hearing in every case in
92-7 which the change constitutes a major change in rates, provided that
92-8 an informal proceeding may satisfy this requirement if a complaint
92-9 has not been received before the expiration of 45 days after notice
92-10 of the change shall have been filed. In each case where the
92-11 commission determines it is in the public interest to collect
92-12 public comments <testimony> at a regional hearing for the inclusion
92-13 in the record, the commission shall hold a regional hearing at an
92-14 appropriate location. A regional hearing is not required in a case
92-15 involving a member-owned utility, unless the commission determines
92-16 otherwise.
92-17 (e) If the 150-day period has been extended, as provided for
92-18 in Subsection (d) of this section, and the commission fails to make
92-19 its final determination of rates within 150 days from the date that
92-20 the proposed change otherwise would have gone into effect, the
92-21 utility concerned may put a changed rate, not to exceed the
92-22 proposed rate, into effect throughout all areas in which the
92-23 utility sought to change its rates, including the areas over which
92-24 the commission is exercising its appellate and its original
92-25 jurisdiction, upon the filing with the commission <regulatory
93-1 authority> of a bond payable to the commission <regulatory
93-2 authority> in an amount and with sureties approved by the
93-3 commission <regulatory authority> conditioned upon refund and in a
93-4 form approved by the commission <regulatory authority>. The
93-5 utility concerned shall refund or credit against future bills all
93-6 sums collected during the period of suspension in excess of the
93-7 rate finally ordered plus interest at the current rate as finally
93-8 determined by the commission <regulatory authority>.
93-9 (g)(1) Except as permitted by Section 2.051 of this Act, a
93-10 <A> rate or tariff set by the commission may not authorize a
93-11 utility to automatically adjust and pass through to its customers
93-12 changes in fuel or other costs of the utility.
93-13 (2)(A) Subdivision (1) of this subsection does not
93-14 prohibit the commission from reviewing and providing for
93-15 adjustments of a utility's fuel factor. The commission by rule
93-16 shall implement procedures that provide for the timely adjustment
93-17 of a utility's fuel factor, with or without a hearing. The
93-18 procedures shall provide that the findings required by Subsection
93-19 (b) of Section 2.208 of this Act regarding fuel transactions with
93-20 affiliated interests are made in a fuel reconciliation proceeding
93-21 or in a rate case filed under Subsection (a) of this section or
93-22 under Section 2.211 of this Act. The procedures shall provide an
93-23 affected party notice and the opportunity to request a hearing
93-24 before the commission; however, the commission may adjust a
93-25 utility's fuel factor without a hearing if the commission
94-1 determines that a hearing is not necessary. If the commission
94-2 holds a hearing, the <Any revision of a utility's billings to its
94-3 customers to allow for the recovery of additional fuel costs may be
94-4 made only upon a public hearing and order of the commission.>
94-5 <(B) The> commission may consider any evidence
94-6 that is appropriate and in the public interest at such hearing.
94-7 The commission shall render a timely decision approving,
94-8 disapproving, or modifying the adjustment to the utility's fuel
94-9 factor.
94-10 (B) The commission by rule shall provide for the
94-11 reconciliation of a utility's fuel costs on a timely basis.
94-12 (C) A proceeding under this subsection may not
94-13 be considered a rate case under this section.
94-14 (3) <The commission may, after a hearing, grant
94-15 interim relief for fuel cost increases that are the result of
94-16 unusual and emergency circumstances or conditions.>
94-17 <(4)>(A) This subsection applies only to increases or
94-18 decreases in the cost of purchased electricity, the recovery of
94-19 which has not been requested by an electric utility pursuant to the
94-20 provisions of Section 2.051 of this Act, which have been:
94-21 (i) accepted by a federal regulatory
94-22 authority; or
94-23 (ii) approved after a hearing by the
94-24 commission.
94-25 <(B)> The commission may utilize any appropriate
95-1 method to provide for the adjustment of the cost of purchased
95-2 electricity upon such terms and conditions as the commission may
95-3 determine. Such purchased electricity costs may be recovered
95-4 concurrently with the effective date of the changed costs to the
95-5 purchasing utility or as soon thereafter as is reasonably
95-6 practical.
95-7 (B) The commission may also provide for a
95-8 mechanism to allow any electric utility that has a noncontiguous
95-9 geographical service area, and that purchases power for resale for
95-10 that noncontiguous service area from electric utilities that are
95-11 not members of the Electric Reliability Council of Texas, to
95-12 recover purchased power cost for that area in a manner that
95-13 reflects the purchased power cost for that specific geographical
95-14 noncontiguous area. The commission may not, however, require such
95-15 a mechanism for any electric cooperative corporation unless
95-16 requested by the electric cooperative corporation.
95-17 SECTION 2.15. Section 2.214 of the Public Utility Regulatory
95-18 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
95-19 Legislature, Regular Session, 1995, is amended to read as follows:
95-20 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
95-21 OR SERVICES. An electric utility may not, as to rates or services,
95-22 make or grant any unreasonable preference or advantage to any
95-23 corporation or person within any classification, or subject any
95-24 corporation or person within any classification to any unreasonable
95-25 prejudice or disadvantage. An electric utility may not establish
96-1 and maintain any unreasonable differences as to rates of service
96-2 either as between localities or as between classes of service.
96-3 Prices that are charged to individual customers for retail electric
96-4 service that are less than the rate approved by the regulatory
96-5 authority shall not constitute an impermissible difference,
96-6 preference, or advantage.
96-7 SECTION 2.16. Subsection (a), Section 2.215, Public Utility
96-8 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
96-9 74th Legislature, Regular Session, 1995, is amended to read as
96-10 follows:
96-11 (a) An electric utility may not, directly or indirectly, by
96-12 any device whatsoever or in any manner, charge, demand, collect, or
96-13 receive from any person a greater <or less> compensation for any
96-14 service rendered or to be rendered by the utility than that
96-15 prescribed in the schedule of rates of the electric utility
96-16 applicable thereto when filed in the manner provided in this Act,
96-17 nor may any person knowingly receive or accept any service from an
96-18 electric utility for a compensation greater <or less> than that
96-19 prescribed in the schedules provided that it is lawful for a
96-20 utility to charge individual customers a price for retail electric
96-21 service that is less than the rate approved by the regulatory
96-22 authority and for a person to pay such lesser price if such lesser
96-23 price is necessary because of competition.
96-24 SECTION 2.17. Section 2.251 of the Public Utility Regulatory
96-25 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
97-1 Legislature, Regular Session, 1995, is amended to read as follows:
97-2 Sec. 2.251. DEFINITION. For the purposes of this subtitle
97-3 only, "retail electric utility" means any person, corporation,
97-4 municipality, political subdivision or agency, or cooperative
97-5 corporation, now or hereafter <operating, maintaining, or
97-6 controlling in Texas facilities for> providing retail electric
97-7 utility service to an ultimate consumer of electricity in Texas;
97-8 provided that a qualifying cogenerator making retail sales of
97-9 electric energy in this state to the sole purchaser of the thermal
97-10 output of the qualifying facility shall not for that reason be
97-11 considered a retail electric utility.
97-12 SECTION 2.18. Subsections (a) and (c), Section 2.254, Public
97-13 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts
97-14 of the 74th Legislature, Regular Session, 1995, are amended to read
97-15 as follows:
97-16 (a) An electric utility shall submit to the commission an
97-17 application to obtain a certificate of public convenience and
97-18 necessity or an amendment thereof. The utility shall file
97-19 concurrently with the office a copy of the application.
97-20 (c) Each applicant for a certificate shall file with the
97-21 commission and the office such evidence as is required by the
97-22 commission to show that the applicant has received the required
97-23 consent, franchise, or permit of the proper municipality or other
97-24 public authority.
97-25 SECTION 2.19. Section 2.255 of the Public Utility Regulatory
98-1 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
98-2 Legislature, Regular Session, 1995, is amended to read as follows:
98-3 Sec. 2.255. NOTICE AND HEARING; ISSUANCE OR REFUSAL; FACTORS
98-4 CONSIDERED; <FILING OF NOTICE OF INTENT BY ELECTRIC UTILITIES;>
98-5 TIME FOR APPROVAL OR DENIAL OF NEW TRANSMISSION FACILITIES. (a)
98-6 When an application for a certificate of public convenience and
98-7 necessity is filed, the commission shall give notice of such
98-8 application to interested parties and, if requested, shall fix a
98-9 time and place for a hearing and give notice of the hearing. Any
98-10 person interested in the application may intervene at the hearing.
98-11 (b) The commission may grant applications and issue
98-12 certificates only if the commission finds that the certificate is
98-13 necessary for the service, accommodation, convenience, or safety of
98-14 the public. Certificates for new generating plant proposed by an
98-15 electric utility shall not be subject to the procedures and
98-16 standards specified in this section but shall be governed by the
98-17 procedures and standards specified in Section 2.051 of this Act.
98-18 The commission may issue the certificate as prayed for, or refuse
98-19 to issue it, or issue it for the construction of a portion only of
98-20 the contemplated system or facility or extension thereof, or for
98-21 the partial exercise only of the right or privilege.
98-22 (c) Certificates of convenience and necessity shall be
98-23 granted on a nondiscriminatory basis after consideration by the
98-24 commission of the adequacy of existing service, the need for
98-25 additional service, the effect of the granting of a certificate on
99-1 the recipient of the certificate and on any electric utility of the
99-2 same kind already serving the proximate area, and on such factors
99-3 as community values, recreational and park areas, historical and
99-4 aesthetic values, environmental integrity, and the probable
99-5 improvement of service or lowering of cost to consumers in such
99-6 area resulting from the granting of such certificate.
99-7 <(d) In addition to the requirements of this section, an
99-8 electric utility applying for certificate of convenience and
99-9 necessity for a new generating plant must first file a notice of
99-10 intent to file an application for certification.>
99-11 <(1) The notice of intent shall set out alternative
99-12 methods considered to help meet the electrical needs, related
99-13 electrical facilities, and the advantages and disadvantages of the
99-14 alternatives. In addition, the notice shall indicate compatibility
99-15 with the most recent long-term forecast provided in this Act.>
99-16 <(2) The commission shall conduct a hearing on the
99-17 notice of intent to determine the appropriateness of the proposed
99-18 generating plant as compared to the alternatives and shall issue a
99-19 report on its findings. In conjunction with the issuance of the
99-20 report, the commission shall render a decision approving or
99-21 disapproving the notice. Such decision shall be rendered within
99-22 180 days from the date of filing the notice of intent.>
99-23 <(e) On approval of the notice of intent, a utility may
99-24 apply for certification for a generating plant, site, and site
99-25 facilities not later than 12 months before construction is to
100-1 commence.>
100-2 <(1) The application for certification shall contain
100-3 such information as the commission may require to justify the
100-4 proposed generating plant, site, and site facilities and to allow a
100-5 determination showing compatibility with the most recent forecast.>
100-6 <(2) Certificates of convenience and necessity shall
100-7 be granted on a nondiscriminatory basis if the commission finds
100-8 that the proposed new plant is required under the service area
100-9 forecast, that it is the best and most economical choice of
100-10 technology for that service area as compatible with the
100-11 commission's forecast, and that conservation and alternative energy
100-12 sources cannot meet the need>.
100-13 (d) <(f)> If the application for a certificate of
100-14 convenience and necessity involves new transmission facilities, the
100-15 commission shall approve or deny the application within one year
100-16 after the date the application is filed. If the commission does
100-17 not approve or deny the application before this deadline, the
100-18 application shall automatically be deemed approved <any party may
100-19 seek a writ of mandamus in a district court of Travis County to
100-20 compel the commission to make a decision on the application>.
100-21 SECTION 2.20. (a) The Public Utility Commission of Texas by
100-22 rule shall adopt an integrated resource planning process as
100-23 required by Section 2.051, Public Utility Regulatory Act of 1995,
100-24 as enacted by S.B. No. 319, Acts of the 74th Legislature, Regular
100-25 Session, 1995, as added by this Act, no later than September 1,
101-1 1996.
101-2 (b) The changes in law made by this Act to Section 2.255,
101-3 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
101-4 Acts of the 74th Legislature, Regular Session, 1995, take effect
101-5 September 1, 1996, and apply only to an application for a
101-6 certificate of convenience and necessity filed on or after that
101-7 date, except that, in the case of any utility for which the
101-8 commission has not yet approved an integrated resource plan as of
101-9 September 1, 1996, applications for certificates of convenience and
101-10 necessity shall be governed by the law in effect prior to the
101-11 effective date of this Act until the commission approves an
101-12 integrated resource plan for that utility.
101-13 SECTION 2.21. Except as otherwise provided by this Act, this
101-14 Act takes effect September 1, 1995.
101-15 SECTION 2.22. The importance of this legislation and the
101-16 crowded condition of the calendars in both houses create an
101-17 emergency and an imperative public necessity that the
101-18 constitutional rule requiring bills to be read on three several
101-19 days in each house be suspended, and this rule is hereby suspended,
101-20 and that this Act take effect and be in force according to its
101-21 terms, and it is so enacted.