1-1 By: Seidlits (Senate Sponsor - Armbrister) H.B. No. 3164
1-2 (In the Senate - Received from the House May 15, 1995;
1-3 May 17, 1995, read first time and referred to Committee on State
1-4 Affairs; May 22, 1995, reported favorably, as amended, by the
1-5 following vote: Yeas 9, Nays 0; May 22, 1995, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1 By: Armbrister
1-7 Amend H.B. 3164 by deleting SECTION 31.
1-8 COMMITTEE AMENDMENT NO. 2 By: Rosson
1-9 Amend SECTION 1.0 of H.B. 3164 by amending Subsection 13A of
1-10 Section 1.003 of the Public Utility Regulatory Act of 1995, as
1-11 follows:
1-12 (13A) The term "ratemaking proceeding" is limited to those
1-13 proceedings in which rates are changed, except the term shall
1-14 include proceedings initiated under Section 2.051 of this Act.
1-15 A BILL TO BE ENTITLED
1-16 AN ACT
1-17 relating to the continuation, operations, and functions of the
1-18 Public Utility Commission of Texas and the Office of Public Utility
1-19 Counsel; providing penalties.
1-20 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-21 SECTION 1. Section 1.003, Public Utility Regulatory Act of
1-22 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-23 Regular Session, 1995, is amended by adding Subdivision (18) to
1-24 read as follows:
1-25 (18) "Trade association" means a nonprofit,
1-26 cooperative, and voluntarily joined association of business or
1-27 professional persons who are employed by public utilities or
1-28 utility competitors to assist the public utility industry, a
1-29 utility competitor, or the industry's or competitor's employees in
1-30 dealing with mutual business or professional problems and in
1-31 promoting their common interest.
1-32 SECTION 2. Section 1.005, Public Utility Regulatory Act of
1-33 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-34 Regular Session, 1995, is amended to read as follows:
1-35 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
1-36 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
1-37 to all proceedings under this Act except to the extent inconsistent
1-38 with this Act. Communications of members and employees of the
1-39 commission with a party, a party's representative, or other persons
1-40 are governed by Section 2001.061, Government Code.
1-41 (b) The commission is subject to Chapter 551, Government
1-42 Code.
1-43 SECTION 3. Subtitle A, Title I, Public Utility Regulatory
1-44 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
1-45 Legislature, Regular Session, 1995, is amended by adding Section
1-46 1.006 to read as follows:
1-47 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
1-48 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
1-49 utility competitor, or utility supplier is considered to be
1-50 affected in a manner other than by the setting of rates for that
1-51 class of customer if during a relevant calendar year the entity
1-52 provides fuel, utility-related goods, utility-related products, or
1-53 utility-related services to a regulated or unregulated provider of
1-54 telecommunications or electric services or to an affiliated
1-55 interest in an amount equal to the greater of $10,000 or 10 percent
1-56 of the person's business.
1-57 SECTION 4. Subsections (c) and (d), Section 1.021, Public
1-58 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
1-59 the 74th Legislature, Regular Session, 1995, are amended to read as
1-60 follows:
1-61 (c) The governor shall designate a member of the commission
1-62 as presiding officer of the commission to serve in that capacity at
1-63 the pleasure of the governor. <At its first meeting following the
1-64 biennial appointment and qualification of a commissioner, the
1-65 commission shall elect one of the commissioners chairman.>
1-66 (d) Appointments to the commission shall be made without
1-67 regard to the race, color, disability <creed>, sex, religion, age,
1-68 or national origin of the appointees.
2-1 SECTION 5. Section 1.022, Public Utility Regulatory Act of
2-2 1995, as enacted by S.B. 319, Acts of the 74th Legislature, Regular
2-3 Session, 1995, is amended to read as follows:
2-4 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
2-5 of Texas and the Office of Public Utility Counsel are subject to
2-6 Chapter 325, Government Code (Texas Sunset Act). Unless continued
2-7 in existence as provided by that chapter, the commission and the
2-8 office are abolished and this Act expires September 1, 2001 <1995>.
2-9 SECTION 6. Section 1.023, Public Utility Regulatory Act of
2-10 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
2-11 Regular Session, 1995, is amended to read as follows:
2-12 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
2-13 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
2-14 a person must be a qualified voter, <not less than 30 years of
2-15 age,> a citizen of the United States, <and> a resident of the State
2-16 of Texas, and a representative of the general public.
2-17 (b) Each commissioner shall qualify for office by taking the
2-18 oath prescribed for other state officers <and shall execute a bond
2-19 for $5,000 payable to the state and conditioned on the faithful
2-20 performance of his duties>.
2-21 (c) A person is not eligible for appointment as a
2-22 commissioner if at any time during the two-year period immediately
2-23 preceding his appointment he personally served as an officer,
2-24 director, owner, employee, partner, or legal representative of any
2-25 public utility, <or any> affiliated interest, or direct competitor
2-26 of a public utility or he owned or controlled, directly or
2-27 indirectly, stocks or bonds of any class with a value of $10,000 or
2-28 more in a public utility, <or any> affiliated interest, or direct
2-29 competitor of a public utility.
2-30 (d) A person who is required to register as a lobbyist under
2-31 Chapter 305, Government Code, because of the person's activities
2-32 for compensation on behalf of a profession related to the operation
2-33 of the commission may not serve as a member of the commission or
2-34 public utility counsel or act as the general counsel to the
2-35 commission.
2-36 (e) A person is not eligible for appointment as a public
2-37 member of the commission or for employment as the general counsel
2-38 or executive director of the commission if:
2-39 (1) the person serves on the board of directors of a
2-40 company that supplies fuel, utility-related services, or
2-41 utility-related products to regulated or unregulated electric or
2-42 telecommunications utilities; or
2-43 (2) the person or the person's spouse:
2-44 (A) is employed by or participates in the
2-45 management of a business entity or other organization regulated by
2-46 the commission or receiving funds from the commission;
2-47 (B) owns or controls, directly or indirectly,
2-48 more than a 10 percent interest or a pecuniary interest with a
2-49 value exceeding $10,000 in:
2-50 (i) a business entity or other
2-51 organization regulated by the commission or receiving funds from
2-52 the commission; or
2-53 (ii) any utility competitor, utility
2-54 supplier, or other entity affected by a commission decision in a
2-55 manner other than by the setting of rates for that class of
2-56 customer;
2-57 (C) uses or receives a substantial amount of
2-58 tangible goods, services, or funds from the commission, other than
2-59 compensation or reimbursement authorized by law for commission
2-60 membership, attendance, or expenses; or
2-61 (D) notwithstanding Paragraph (B) of this
2-62 subdivision, has an interest in a mutual fund or retirement fund in
2-63 which more than 10 percent of the fund's holdings at the time of
2-64 appointment is in a single utility, utility competitor, or utility
2-65 supplier in this state and the person does not disclose this
2-66 information to the governor, senate, commission, or other entity,
2-67 as appropriate.
2-68 (f) Notwithstanding any other provision of this Act, a
2-69 person otherwise ineligible because of the application of
2-70 Subsection (e)(2)(B) of this section may be appointed to the
3-1 commission and serve as a commissioner or may be employed as the
3-2 general counsel or executive director if the person:
3-3 (1) notifies the attorney general and commission that
3-4 the person is ineligible because of the application of Subsection
3-5 (e)(2)(B) of this section; and
3-6 (2) divests the person or the person's spouse of the
3-7 ownership or control before beginning service or employment, or
3-8 within a reasonable time if the person is already serving or
3-9 employed at the time Subsection (e)(2)(B) of this section first
3-10 applies to the person.
3-11 (g) An officer, employee, or paid consultant of a trade
3-12 association in the field of public utilities may not be a member or
3-13 employee of the commission who is exempt from the state's position
3-14 classification plan or is compensated at or above the amount
3-15 prescribed by the General Appropriations Act for step 1, salary
3-16 group 17, of the position classification salary schedule.
3-17 (h) A person who is a spouse of an officer, manager, or paid
3-18 consultant of a trade association in the field of public utilities
3-19 may not be a commission member and may not be a commission employee
3-20 who is exempt from the state's position classification plan or is
3-21 compensated at or above the amount prescribed by the General
3-22 Appropriations Act for step 1, salary group 17, of the position
3-23 classification salary schedule.
3-24 SECTION 7. Subsections (a), (d), and (e), Section 1.024,
3-25 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
3-26 Acts of the 74th Legislature, Regular Session, 1995, are amended to
3-27 read as follows:
3-28 (a) A commissioner or employee of the commission may not do
3-29 any of the following during his period of service with the
3-30 commission:
3-31 (1) have any pecuniary interest, either as an officer,
3-32 director, partner, owner, employee, attorney, consultant, or
3-33 otherwise, in any public utility or affiliated interest, or in any
3-34 person or corporation or other business entity a significant
3-35 portion of whose business consists of furnishing goods or services
3-36 to public utilities or affiliated interests, but not including a
3-37 nonprofit group or association solely supported by gratuitous
3-38 contributions of money, property or services, other than a trade
3-39 association;
3-40 (2) own or control any securities in a public utility,
3-41 <or> affiliated interest, or direct competitor of a public utility,
3-42 either directly or indirectly; or
3-43 (3) accept any gift, gratuity, or entertainment
3-44 whatsoever from any public utility, <or> affiliated interest, or
3-45 direct competitor of a public utility, or from any person,
3-46 corporation, agent, representative, employee, or other business
3-47 entity a significant portion of whose business consists of
3-48 furnishing goods or services to public utilities, <or> affiliated
3-49 interests, or direct competitors of public utilities, or from any
3-50 agent, representative, attorney, employee, officer, owner,
3-51 director, or partner of any such business entity or of any public
3-52 utility, <or> affiliated interest, or direct competitor of a public
3-53 utility; provided, however, that the receipt and acceptance of any
3-54 gifts, gratuities, or entertainment after termination of service
3-55 with the commission whose cumulative value in any one-year period
3-56 is less than $100 does not constitute a violation of this Act.
3-57 (d) A public utility, <or> affiliated interest, or direct
3-58 competitor of a public utility, or any person, corporation, firm,
3-59 association, or business that furnishes goods or services to any
3-60 public utility, <or> affiliated interest, or direct competitor of a
3-61 public utility, or any agent, representative, attorney, employee,
3-62 officer, owner, director, or partner of any public utility, <or>
3-63 affiliated interest, or direct competitor of a public utility, or
3-64 any person, corporation, firm, association, or business furnishing
3-65 goods or services to any public utility, <or> affiliated interest,
3-66 or direct competitor of a public utility may not give or offer to
3-67 give any gift, gratuity, employment, or entertainment whatsoever to
3-68 any member or employee of the commission except as allowed by
3-69 Subdivision (3) of Subsection (a) of this section, nor may any such
3-70 public utility, <or> affiliated interest, or direct competitor of a
4-1 public utility or any such person, corporation, firm, association,
4-2 or business aid, abet, or participate with any member, employee, or
4-3 former employee of the commission in any activity or conduct that
4-4 would constitute a violation of this subsection or Subdivision (3)
4-5 of Subsection (a) of this section.
4-6 (e) It is not a violation of this section if a member of the
4-7 commission or a person employed by the commission, upon becoming
4-8 the owner of any stocks or bonds or other pecuniary interest in a
4-9 public utility, <or> affiliated interest, or direct competitor of a
4-10 public utility <under the jurisdiction of the commission> otherwise
4-11 than voluntarily, informs the commission and the attorney general
4-12 of such ownership and divests himself of the ownership or interest
4-13 within a reasonable time. In this section, a "pecuniary interest"
4-14 includes income, compensation, and payment of any kind, in addition
4-15 to ownership interests. It is not a violation of this section if
4-16 such a pecuniary interest is held indirectly by ownership of an
4-17 interest in a retirement system, institution, or fund which in the
4-18 normal course of business invests in diverse securities
4-19 independently of the control of the commissioner or employee.
4-20 SECTION 8. Section 1.025, Public Utility Regulatory Act of
4-21 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
4-22 Regular Session, 1995, is amended to read as follows:
4-23 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
4-24 (a) A commissioner may not within two years, and an employee of
4-25 the commission or an employee of the State Office of Administrative
4-26 Hearings involved in hearing utility cases may not, within one year
4-27 after his employment with the commission or the State Office of
4-28 Administrative Hearings has ceased, be employed by a public utility
4-29 which was in the scope of the commissioner's or employee's official
4-30 responsibility while the commissioner or employee was associated
4-31 with the commission or the State Office of Administrative Hearings.
4-32 (b) During the time a commissioner or employee of the
4-33 commission or an employee of the State Office of Administrative
4-34 Hearings involved in hearing utility cases is associated with the
4-35 commission or State Office of Administrative Hearings or at any
4-36 time after, the commissioner or employee may not represent a
4-37 person, corporation, or other business entity before the commission
4-38 or State Office of Administrative Hearings or a court in a matter
4-39 in which the commissioner or employee was personally involved while
4-40 associated with the commission or State Office of Administrative
4-41 Hearings or a matter that was within the commissioner's or
4-42 employee's official responsibility while the commissioner or
4-43 employee was associated with the commission or State Office of
4-44 Administrative Hearings.
4-45 (c) The commission shall require its members and employees
4-46 to read this section and Section 1.024 of this Act and as often as
4-47 necessary shall provide information regarding their qualifications
4-48 for office or employment under this Act and their responsibilities
4-49 under applicable laws relating to standards of conduct for state
4-50 officers and employees.
4-51 SECTION 9. Section 1.026, Public Utility Regulatory Act of
4-52 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
4-53 Regular Session, 1995, is amended to read as follows:
4-54 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
4-55 (a) It is a ground for removal from the commission if a member:
4-56 (1) does not have at the time of appointment the
4-57 qualifications required by Section 1.023 of this Act <for
4-58 appointment to the commission>; <or>
4-59 (2) does not maintain during <the> service on the
4-60 commission the qualifications required by Section 1.023 of this
4-61 Act;
4-62 (3) violates a prohibition established by Section
4-63 1.023, 1.024, or 1.025 of this Act;
4-64 (4) cannot discharge the member's duties for a
4-65 substantial part of the term for which the member is appointed
4-66 because of illness or disability; or
4-67 (5) is absent from more than half of the regularly
4-68 scheduled commission meetings that the member is eligible to attend
4-69 during a calendar year unless the absence is excused by majority
4-70 vote of <for appointment to> the commission.
5-1 (b) The validity of an action of the commission is not
5-2 affected by the fact that it is <was> taken when a ground for
5-3 removal of a commission member exists <of the commission existed>.
5-4 (c) If the executive director has knowledge that a potential
5-5 ground for removal exists, the executive director shall notify the
5-6 presiding officer of the commission of the potential ground. The
5-7 presiding officer shall then notify the governor and the attorney
5-8 general that a potential ground for removal exists. If the
5-9 potential ground for removal involves the presiding officer of the
5-10 commission, the executive director shall notify the next highest
5-11 officer of the commission, who shall notify the governor and the
5-12 attorney general that a potential ground for removal exists.
5-13 (d) Before a member of the commission may assume the
5-14 member's duties and before the member may be confirmed by the
5-15 senate, the member must complete at least one course of the
5-16 training program established under this section.
5-17 (e) A training program established under this section shall
5-18 provide information to the member regarding:
5-19 (1) the enabling legislation that created the
5-20 commission and its policymaking body to which the member is
5-21 appointed to serve;
5-22 (2) the programs operated by the commission;
5-23 (3) the role and functions of the commission;
5-24 (4) the rules of the commission with an emphasis on
5-25 the rules that relate to disciplinary and investigatory authority;
5-26 (5) the current budget for the commission;
5-27 (6) the results of the most recent formal audit of the
5-28 commission;
5-29 (7) the requirements of Chapters 551, 552, and 2001,
5-30 Government Code;
5-31 (8) the requirements of the conflict of interest laws
5-32 and other laws relating to public officials; and
5-33 (9) any applicable ethics policies adopted by the
5-34 commission or the Texas Ethics Commission.
5-35 SECTION 10. Subsections (a), (b), and (e), Section 1.028,
5-36 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
5-37 Acts of the 74th Legislature, Regular Session, 1995, are amended to
5-38 read as follows:
5-39 (a) The commission shall employ an executive director, a
5-40 general counsel, and such officers<, administrative law judges,
5-41 hearing examiners, investigators, lawyers, engineers, economists,
5-42 consultants, statisticians, accountants, administrative assistants,
5-43 inspectors, clerical staff,> and other employees as it deems
5-44 necessary to carry out the provisions of this Act. All employees
5-45 receive such compensation as is fixed by the legislature. The
5-46 commission shall develop and implement policies that clearly define
5-47 the respective responsibilities of the commission and the staff of
5-48 the commission.
5-49 (b) The executive director is responsible for the day-to-day
5-50 operations of the commission and shall coordinate the activities of
5-51 commission employees <commission shall employ the following:>
5-52 <(1) an executive director;>
5-53 <(2) a director of hearings who has wide experience in
5-54 utility regulation and rate determination;>
5-55 <(3) a chief engineer who is a registered engineer and
5-56 an expert in public utility engineering and rate matters;>
5-57 <(4) a chief accountant who is a certified public
5-58 accountant, experienced in public utility accounting;>
5-59 <(5) a director of research who is experienced in the
5-60 conduct of analyses of industry, economics, energy, fuel, and other
5-61 related matters that the commission may want to undertake;>
5-62 <(6) a director of consumer affairs and public
5-63 information;>
5-64 <(7) a director of utility evaluation;>
5-65 <(8) a director of energy conservation; and>
5-66 <(9) a general counsel>.
5-67 <(e) The commission shall employ administrative law judges
5-68 to preside at hearings of major importance before the commission.
5-69 An administrative law judge must be a licensed attorney with not
5-70 less than five years' general experience or three years' experience
6-1 in utility regulatory law. The administrative law judge shall
6-2 perform his duties independently from the commission.>
6-3 SECTION 11. Section 1.029, Public Utility Regulatory Act of
6-4 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
6-5 Regular Session, 1995, is amended to read as follows:
6-6 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
6-7 or the executive director's <his> designee shall develop an
6-8 intra-agency career ladder program that addresses opportunities for
6-9 mobility and advancement for employees of the commission. The
6-10 program shall require intra-agency posting of all positions
6-11 concurrently with<, one part of which shall be the intra-agency
6-12 posting of all nonentry level positions for at least 10 days
6-13 before> any public posting. The executive director or the
6-14 executive director's <his> designee shall develop a system of
6-15 annual performance evaluations that are based on documented
6-16 employee performance <measurable job tasks>. All merit pay for
6-17 commission employees must be based on the system established under
6-18 this section.
6-19 (b) The executive director or the executive director's
6-20 <his/her> designee shall prepare and maintain a written policy
6-21 statement <plan> to assure implementation of a program of equal
6-22 employment opportunity under which <whereby> all personnel
6-23 transactions are made without regard to race, color, disability,
6-24 sex, religion, age, or national origin. The policy statement must
6-25 <plan shall> include:
6-26 (1) personnel policies that comply with Chapter 21,
6-27 Labor Code, including policies relating to recruitment, evaluation,
6-28 selection, appointment, training, and promotion of personnel;
6-29 (2) a comprehensive analysis of the commission
6-30 workforce that meets federal and state guidelines;
6-31 (3) procedures by which a determination can be made
6-32 about the extent of underuse in the commission workforce of all
6-33 persons for whom federal or state guidelines encourage a more
6-34 equitable balance; and
6-35 (4) reasonable methods to appropriately address the
6-36 underuse. <a comprehensive analysis of all the agency's workforce
6-37 by race, sex, ethnic origin, class of position, and salary or wage;>
6-38 <(2) plans for recruitment, evaluation, selection,
6-39 appointment, training, promotion, and other personnel policies;>
6-40 <(3) steps reasonably designed to overcome any
6-41 identified underutilization of minorities and women in the agency's
6-42 workforce; and>
6-43 <(4) objectives and goals, timetables for the
6-44 achievement of the objectives and goals, and assignments of
6-45 responsibility for their achievement.>
6-46 (c) The policy statement <plan> required under Subsection
6-47 (b) of this section must <shall be filed with the governor's office
6-48 within 60 days of the effective date of this Act,> cover an annual
6-49 period, <and> be updated at least annually and reviewed by the
6-50 Commission on Human Rights for compliance with Subsection (b)(1) of
6-51 this section, and<. Progress reports shall> be filed with
6-52 <submitted to> the governor's office <within 30 days of November 1
6-53 and April 1 of each year and shall include the steps the agency has
6-54 taken within the reporting period to comply with these
6-55 requirements>.
6-56 (d) The governor's office shall deliver a biennial report to
6-57 the legislature based on the information received under Subsection
6-58 (c) of this section. The report may be made separately or as a
6-59 part of other biennial reports made to the legislature.
6-60 SECTION 12. Section 1.031, Public Utility Regulatory Act of
6-61 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
6-62 Regular Session, 1995, is amended to read as follows:
6-63 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
6-64 the commission shall be located in the City of Austin, Texas, and
6-65 shall be open daily during the usual business hours, Saturdays,
6-66 Sundays, and legal holidays excepted. The commission shall hold
6-67 meetings at its office and at such other convenient places in the
6-68 state as shall be expedient and necessary for the proper
6-69 performance of its duties.
6-70 (b) The commission shall develop and implement policies that
7-1 provide the public with a reasonable opportunity to appear before
7-2 the commission and to speak on any issue under the jurisdiction of
7-3 the commission.
7-4 SECTION 13. Subsection (a), Section 1.035, Public Utility
7-5 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
7-6 74th Legislature, Regular Session, 1995, is amended to read as
7-7 follows:
7-8 (a) The commission shall prepare annually a complete and
7-9 detailed written report accounting for all funds received and
7-10 disbursed by the commission during the preceding fiscal year. The
7-11 annual report must meet the reporting requirements applicable to
7-12 financial reporting in the General Appropriations Act <publish an
7-13 annual report to the governor, summarizing its proceedings, listing
7-14 its receipts and the sources of its receipts, listing its
7-15 expenditures and the nature of such expenditures, and setting forth
7-16 such other information concerning the operations of the commission
7-17 and the public utility industry as it considers of general
7-18 interest>.
7-19 SECTION 14. Section 1.036, Public Utility Regulatory Act of
7-20 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
7-21 Regular Session, 1995, is amended to read as follows:
7-22 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
7-23 commission shall prepare information of public <consumer> interest
7-24 describing the <regulatory> functions of the commission and
7-25 <describing> the commission's procedures by which <consumer>
7-26 complaints are filed with and resolved by the commission. The
7-27 commission shall make the information available to the <general>
7-28 public and appropriate state agencies.
7-29 (b) The commission by rule shall establish methods by which
7-30 consumers and service recipients are notified of the name, mailing
7-31 address, and telephone number of the commission for the purpose of
7-32 directing complaints to the commission.
7-33 (c) The commission shall comply with federal and state laws
7-34 related to program and facility accessibility. The commission
7-35 shall also prepare and maintain a written plan that describes how a
7-36 person who does not speak English can be provided reasonable access
7-37 to the commission's programs and services.
7-38 SECTION 15. Section 1.051, Public Utility Regulatory Act of
7-39 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
7-40 Regular Session, 1995, is amended to read as follows:
7-41 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
7-42 independent Office of Public Utility Counsel represents the
7-43 interests of residential and small commercial consumers.
7-44 (b) The chief executive of the office <Office of Public
7-45 Utility Counsel> is the public utility counsel, hereinafter
7-46 referred to as counsellor. The counsellor is appointed by the
7-47 governor with the advice and consent of the senate to a two-year
7-48 term that expires on February 1 of the final year of the term.
7-49 Appointment of the counsellor shall be made without regard to the
7-50 race, color, disability, sex, religion, age, or national origin of
7-51 the appointee.
7-52 (c) The counsellor shall be a resident of Texas and admitted
7-53 to the practice of law in this state who has demonstrated a strong
7-54 commitment and involvement in efforts to safeguard the rights of
7-55 the public and possesses the knowledge and experience necessary to
7-56 practice effectively in utility proceedings.
7-57 (d) A person is not eligible for appointment as counsellor
7-58 if the person or the person's spouse:
7-59 (1) is employed by or participates in the management
7-60 of a business entity or other organization regulated by the
7-61 commission or receiving funds from the commission;
7-62 (2) owns or controls, directly or indirectly, more
7-63 than a 10 percent interest or a pecuniary interest with a value
7-64 exceeding $10,000 in:
7-65 (A) a business entity or other organization
7-66 regulated by the commission or receiving funds from the commission
7-67 or the office; or
7-68 (B) any utility competitor, utility supplier, or
7-69 other entity affected by a commission decision in a manner other
7-70 than by the setting of rates for that class of customer;
8-1 (3) uses or receives a substantial amount of tangible
8-2 goods, services, or funds from the commission or the office, other
8-3 than compensation or reimbursement authorized by law for counsellor
8-4 or commission membership, attendance, or expenses; or
8-5 (4) notwithstanding Subdivision (2) of this
8-6 subsection, has an interest in a mutual fund or retirement fund in
8-7 which more than 10 percent of the fund's holdings is in a single
8-8 utility, utility competitor, or utility supplier in this state and
8-9 the person does not disclose this information to the governor,
8-10 senate, or other entity, as appropriate.
8-11 (e) A person may not serve as counsellor or act as the
8-12 general counsel for the office if the person is required to
8-13 register as a lobbyist under Chapter 305, Government Code, because
8-14 of the person's activities for compensation related to the
8-15 operation of the commission or the office.
8-16 (f) An officer, employee, or paid consultant of a trade
8-17 association in the field of public utilities may not serve as
8-18 counsellor or be an employee of the office who is exempt from the
8-19 state's position classification plan or is compensated at or above
8-20 the amount prescribed by the General Appropriations Act for step 1,
8-21 salary group 17, of the position classification salary schedule. A
8-22 person who is the spouse of an officer, manager, or paid consultant
8-23 of a trade association in the field of public utilities may not
8-24 serve as counsellor and may not be an office employee who is exempt
8-25 from the state's position classification plan or is compensated at
8-26 or above the amount prescribed by the General Appropriations Act
8-27 for step 1, salary group 17, of the position classification salary
8-28 schedule.
8-29 (g) Notwithstanding any other provision of this Act, a
8-30 person otherwise ineligible because of the application of
8-31 Subsection (d)(2) of this section may be appointed as counsellor
8-32 and may serve as counsellor if the person:
8-33 (1) notifies the attorney general and commission that
8-34 the person is ineligible because of the application of Subsection
8-35 (d)(2) of this section; and
8-36 (2) divests the person or the person's spouse of the
8-37 ownership or control before appointment, or within a reasonable
8-38 time if the person is already serving at the time Subsection (d)(2)
8-39 of this section first applies to the person.
8-40 SECTION 16. Subtitle C, Title I, Public Utility Regulatory
8-41 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
8-42 Legislature, Regular Session, 1995, is amended by adding Section
8-43 1.0511 to read as follows:
8-44 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
8-45 removal from office if the counsellor:
8-46 (1) does not have at the time of appointment the
8-47 qualifications required by Section 1.051 of this Act;
8-48 (2) does not maintain during service as counsellor the
8-49 qualifications required by Section 1.051 of this Act;
8-50 (3) violates a prohibition established by Section
8-51 1.051 or 1.0512 of this Act; or
8-52 (4) cannot discharge the counsellor's duties for a
8-53 substantial part of the term for which the counsellor is appointed
8-54 because of illness or disability.
8-55 (b) The validity of an action of the office is not affected
8-56 by the fact that it is taken when a ground for removal of the
8-57 counsellor exists.
8-58 SECTION 17. Subtitle C, Title I, Public Utility Regulatory
8-59 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
8-60 Legislature, Regular Session, 1995, is amended by adding Section
8-61 1.0512 to read as follows:
8-62 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
8-63 (a) The counsellor may not within two years, and an employee of
8-64 the office may not, within one year after his employment with the
8-65 office has ceased, be employed by a public utility which was in the
8-66 scope of the counsellor's or employee's official responsibility
8-67 while the counsellor or employee was associated with the office.
8-68 (b) During the time the counsellor or an employee of the
8-69 office is associated with the office or at any time after, the
8-70 counsellor or employee may not represent a person, corporation, or
9-1 other business entity before the commission or a court in a matter
9-2 in which the counsellor or employee was personally involved while
9-3 associated with the office or a matter that was within the
9-4 counsellor's or employee's official responsibility while the
9-5 counsellor or employee was associated with the office.
9-6 SECTION 18. Subtitle C, Title I, Public Utility Regulatory
9-7 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
9-8 Legislature, Regular Session, 1995, is amended by adding Section
9-9 1.0513 to read as follows:
9-10 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
9-11 shall prepare annually a complete and detailed written report
9-12 accounting for all funds received and disbursed by the office
9-13 during the preceding fiscal year. The annual report must meet the
9-14 reporting requirements applicable to financial reporting provided
9-15 in the General Appropriations Act.
9-16 (b) The office shall prepare information of public interest
9-17 describing the functions of the office. The office shall make the
9-18 information available to the public and appropriate state agencies.
9-19 (c) The office shall comply with federal and state laws
9-20 related to program and facility accessibility. The office shall
9-21 also prepare and maintain a written plan that describes how a
9-22 person who does not speak English can be provided reasonable access
9-23 to the office's programs and services.
9-24 SECTION 19. Section 1.052, Public Utility Regulatory Act of
9-25 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-26 Regular Session, 1995, is amended to read as follows:
9-27 Sec. 1.052. INTEREST PROHIBITED. During the period of the
9-28 counsellor's employment and for a period of two years following the
9-29 termination of employment, it shall be unlawful for any person
9-30 employed as counsellor to have a direct or indirect interest in any
9-31 utility company regulated under this Act, to provide legal services
9-32 directly or indirectly to or be employed in any capacity by a
9-33 utility company regulated under this Act, its parent, or its
9-34 subsidiary companies, corporations, or cooperatives or a utility
9-35 competitor, utility supplier, or other entity affected in a manner
9-36 other than by the setting of rates for that class of customer; but
9-37 such person may otherwise engage in the private practice of law
9-38 after the termination of employment as counsellor.
9-39 SECTION 20. Section 1.053, Public Utility Regulatory Act of
9-40 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-41 Regular Session, 1995, is amended to read as follows:
9-42 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
9-43 lawyers, economists, engineers, consultants, statisticians,
9-44 accountants, clerical staff, and other employees as he or she deems
9-45 necessary to carry out the provisions of this section. All
9-46 employees shall receive such compensation as is fixed by the
9-47 legislature from the assessment imposed by Section 1.351 of this
9-48 Act.
9-49 (b) The counsellor or the counsellor's designee shall
9-50 develop an intra-agency career ladder program that addresses
9-51 opportunities for mobility and advancement for employees within the
9-52 commission. The program shall require intra-agency postings of all
9-53 positions concurrently with any public posting. The counsellor or
9-54 the counsellor's designee shall develop a system of annual
9-55 performance evaluations that are based on documented employee
9-56 performance. All merit pay for office employees must be based on
9-57 the system established under this subsection. The counsellor or
9-58 the counsellor's designee shall provide to the public utility
9-59 counsel and its employees, as often as necessary, information
9-60 regarding their qualification for office or employment under this
9-61 Act and their responsibilities under applicable laws relating to
9-62 standards of conduct for state officers or employees.
9-63 (c) The counsellor or the counsellor's designee shall
9-64 prepare and maintain a written policy statement to assure
9-65 implementation of a program of equal employment opportunity under
9-66 which all personnel transactions are made without regard to race,
9-67 color, disability, sex, religion, age, or national origin. The
9-68 policy statement must include:
9-69 (1) personnel policies that comply with Chapter 21,
9-70 Labor Code, including policies relating to recruitment, evaluation,
10-1 selection, appointment, training, and promotion of personnel;
10-2 (2) a comprehensive analysis of the office workforce
10-3 that meets federal and state guidelines;
10-4 (3) procedures by which a determination can be made
10-5 about the extent of underuse in the office workforce of all persons
10-6 for whom federal or state guidelines encourage a more equitable
10-7 balance; and
10-8 (4) reasonable methods to appropriately address the
10-9 underuse.
10-10 (d) A policy statement prepared under Subsection (c) of this
10-11 section must cover an annual period, be updated at least annually
10-12 and reviewed by the Commission on Human Rights for compliance with
10-13 Subsection (c)(1) of this section, and be filed with the governor's
10-14 office. The governor's office shall deliver a biennial report to
10-15 the legislature based on the information received under this
10-16 subsection. The report may be made separately or as a part of
10-17 other biennial reports made to the legislature.
10-18 (e) The office shall provide to its employees, as often as
10-19 necessary, information regarding their qualification for office or
10-20 employment under this Act and their responsibilities under
10-21 applicable laws relating to standards of conduct for state officers
10-22 or employees.
10-23 SECTION 21. Section 1.101, Public Utility Regulatory Act of
10-24 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-25 Regular Session, 1995, is amended to read as follows:
10-26 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
10-27 (a) The commission has the general power to regulate and supervise
10-28 the business of every public utility within its jurisdiction and to
10-29 do all things, whether specifically designated in this Act or
10-30 implied herein, necessary and convenient to the exercise of this
10-31 power and jurisdiction.
10-32 (b) The commission shall make and enforce rules reasonably
10-33 required in the exercise of its powers and jurisdiction, including
10-34 rules governing practice and procedure before the commission and,
10-35 as applicable, practice and procedure before the utility division
10-36 of the State Office of Administrative Hearings. The commission
10-37 shall adopt rules authorizing an administrative law judge to:
10-38 (1) limit the amount of time that a party may have to
10-39 present its case;
10-40 (2) limit the number of requests for information that
10-41 a party may make in a contested case;
10-42 (3) require a party to a contested case to identify
10-43 contested issues and facts before the hearing begins and to limit
10-44 cross-examination to only those issues and facts and to any new
10-45 issues that may arise as a result of the discovery process; or
10-46 (4) group parties, other than the office, that have
10-47 the same position on an issue to facilitate cross-examination on
10-48 that issue, provided that each party in a group is entitled to
10-49 present that party's witnesses for cross-examination during the
10-50 hearing.
10-51 (c) Rules adopted under Subsection (b) of this section must
10-52 ensure that all parties receive due process.
10-53 (d) The commission may call and hold hearings, administer
10-54 oaths, receive evidence at hearings, issue subpoenas to compel the
10-55 attendance of witnesses and the production of papers and documents,
10-56 and make findings of fact and decisions with respect to
10-57 administering the provisions of this Act or the rules, orders, or
10-58 other actions of the commission.
10-59 (e) Hearings in contested cases not conducted by one or more
10-60 commissioners shall be conducted by the utility division of the
10-61 State Office of Administrative Hearings. The <(d) Notwithstanding
10-62 any other provision of this Act or other law, in proceedings other
10-63 than those involving major rate changes, the> commission may
10-64 delegate to the utility division of the State Office of
10-65 Administrative Hearings <an administrative law judge or hearings
10-66 examiner> the authority to make a final decision and to issue
10-67 findings of fact, conclusions of law, and other necessary orders in
10-68 a proceeding in which there is no contested issue of fact or law.
10-69 The commission by rule shall define the procedures by which it
10-70 delegates final decision-making authority authorized by this
11-1 section. For review purposes the final decision of the
11-2 administrative law judge <or hearings examiner> has the same effect
11-3 as a final decision of the commission unless a commissioner
11-4 requests formal review of the decision.
11-5 SECTION 22. Subsection (b), Section 1.102, Public Utility
11-6 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
11-7 74th Legislature, Regular Session, 1995, is amended to read as
11-8 follows:
11-9 (b) The commission may audit each utility under the
11-10 jurisdiction of the commission as frequently as needed<, but shall
11-11 audit each utility at least once every 10 years>. Six months after
11-12 any audit, the utility shall report to the commission on the status
11-13 of the implementation of the recommendations of the audit and shall
11-14 file subsequent reports at such times as the commission deems
11-15 appropriate.
11-16 SECTION 23. Subtitle D, Title I, Public Utility Regulatory
11-17 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
11-18 Legislature, Regular Session, 1995, is amended by adding Section
11-19 1.104 to read as follows:
11-20 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
11-21 adopt procedures governing the use of settlements to resolve
11-22 contested cases.
11-23 (b) The rules shall ensure that:
11-24 (1) each party retains the right to:
11-25 (A) have a full hearing before the commission on
11-26 issues that remain in dispute; and
11-27 (B) judicial review of issues that remain in
11-28 dispute;
11-29 (2) an issue of fact raised by a nonsettling party
11-30 cannot be waived by a settlement or stipulation of the other
11-31 parties; and
11-32 (3) the nonsettling party may use the issue of fact
11-33 raised by that party as the basis for judicial review.
11-34 SECTION 24. Section 1.202, Public Utility Regulatory Act of
11-35 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
11-36 Regular Session, 1995, is amended to read as follows:
11-37 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
11-38 have the power to:
11-39 (1) require that public utilities report to it such
11-40 information relating to themselves and affiliated interests both
11-41 within and without the State of Texas as it may consider useful in
11-42 the administration of this Act;
11-43 (2) establish forms for all reports;
11-44 (3) determine the time for reports and the frequency
11-45 with which any reports are to be made;
11-46 (4) require that any reports be made under oath;
11-47 (5) require that a copy of any contract or arrangement
11-48 between any public utility and any affiliated interest be filed
11-49 with it. It may require any such contract or arrangement not in
11-50 writing to be reduced to writing and filed with it;
11-51 (6) require that a copy of any report filed with any
11-52 federal agency or any governmental agency or body of any other
11-53 state be filed with it; and
11-54 (7) require that a copy of annual reports showing all
11-55 payments of compensation (other than salary or wages subject to the
11-56 withholding of federal income tax) to residents of Texas, or with
11-57 respect to legal, administrative, or legislative matters in Texas,
11-58 or for representation before the Texas Legislature or any
11-59 governmental agency or body be filed with it.
11-60 (b) <The railroad commission shall have the power to review
11-61 and approve, for purposes of the Outer Continental Shelf Lands Act
11-62 Amendments of 1978 and any other federal authorities, applications
11-63 by gas utilities for the purchase of natural gas from producing
11-64 affiliates.>
11-65 <(c)> On the request of the governing body of any
11-66 municipality, the commission may provide sufficient staff members
11-67 to advise and consult with such municipality on any pending matter.
11-68 SECTION 25. Subsection (b), Section 1.251, Public Utility
11-69 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
11-70 74th Legislature, Regular Session, 1995, is amended to read as
12-1 follows:
12-2 (b) All transactions involving the sale of 50 percent or
12-3 more of the stock of a public utility shall also be reported to the
12-4 commission within a reasonable time. On the filing of a report
12-5 with the commission, the commission shall investigate the same with
12-6 or without public hearing to determine whether the action is
12-7 consistent with the public interest. In reaching its
12-8 determination, the commission shall take into consideration the
12-9 reasonable value of the property, facilities, or securities to be
12-10 acquired, disposed of, merged, transferred, or consolidated and
12-11 whether such a transaction will adversely affect the health or
12-12 safety of customers or employees, result in the transfer of jobs of
12-13 Texas citizens to workers domiciled outside the State of Texas, or
12-14 result in the decline of service, whether the public utility will
12-15 receive consideration equal to the reasonable value of the assets
12-16 when it sells, leases, or transfers assets, and whether the
12-17 transaction is consistent with the public interest.
12-18 SECTION 26. Subtitle I, Title I, Public Utility Regulatory
12-19 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
12-20 Legislature, Regular Session, 1995, is amended by adding Section
12-21 1.3215 to read as follows:
12-22 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
12-23 may impose an administrative penalty against a person regulated
12-24 under this Act who violates this Act or a rule or order adopted
12-25 under this Act.
12-26 (b) The penalty for a violation may be in an amount not to
12-27 exceed $5,000. Each day a violation continues or occurs is a
12-28 separate violation for purposes of imposing a penalty.
12-29 (c) The amount of the penalty shall be based on:
12-30 (1) the seriousness of the violation, including the
12-31 nature, circumstances, extent, and gravity of any prohibited acts,
12-32 and the hazard or potential hazard created to the health, safety,
12-33 or economic welfare of the public;
12-34 (2) the economic harm to property or the environment
12-35 caused by the violation;
12-36 (3) the history of previous violations;
12-37 (4) the amount necessary to deter future violations;
12-38 (5) efforts to correct the violation; and
12-39 (6) any other matter that justice may require.
12-40 (d) If the executive director determines that a violation
12-41 has occurred, the executive director may issue to the commission a
12-42 report that states the facts on which the determination is based
12-43 and the director's recommendation on the imposition of a penalty,
12-44 including a recommendation on the amount of the penalty.
12-45 (e) Within 14 days after the date the report is issued, the
12-46 executive director shall give written notice of the report to the
12-47 person. The notice may be given by certified mail. The notice
12-48 must include a brief summary of the alleged violation and a
12-49 statement of the amount of the recommended penalty and must inform
12-50 the person that the person has a right to a hearing on the
12-51 occurrence of the violation, the amount of the penalty, or both the
12-52 occurrence of the violation and the amount of the penalty. In
12-53 addition, the notice must inform the person that a penalty will not
12-54 be imposed if the violation was accidental or inadvertent and the
12-55 person has previously corrected the violation or corrects the
12-56 violation not later than the 30th day after the date the person
12-57 receives the notice under this subsection. The commission may not
12-58 impose a penalty under this section if the person has previously
12-59 corrected the violation or corrects the violation before the end of
12-60 the 30-day period. The person against whom the penalty may be
12-61 assessed has the burden of proving to the commission that the
12-62 person has corrected the violation and that the violation was
12-63 accidental or inadvertent.
12-64 (f) Within 20 days after the date the person receives the
12-65 notice, the person in writing may accept the determination and
12-66 recommended penalty of the executive director, may make a written
12-67 request for a hearing on the occurrence of the violation, the
12-68 amount of the penalty, or both the occurrence of the violation and
12-69 the amount of the penalty, or may notify the commission in writing
12-70 that the person has corrected or intends to correct the violation
13-1 as provided by Subsection (e) of this section and request a
13-2 hearing.
13-3 (g) If the person accepts the determination and recommended
13-4 penalty of the executive director, the commission by order shall
13-5 approve the determination and impose the recommended penalty.
13-6 (h) If the person requests a hearing or fails to respond
13-7 timely to the notice, the executive director shall set a hearing
13-8 and give notice of the hearing to the person. The hearing shall be
13-9 held by an administrative law judge of the State Office of
13-10 Administrative Hearings. The administrative law judge shall make
13-11 findings of fact and conclusions of law and promptly issue to the
13-12 commission a proposal for a decision about the occurrence of the
13-13 violation and the amount of a proposed penalty. Based on the
13-14 findings of fact, conclusions of law, and proposal for a decision,
13-15 the commission by order may find that a violation has occurred and,
13-16 if not corrected in accordance with Subsection (e) of this section,
13-17 impose a penalty or may find that no violation occurred.
13-18 (i) The notice of the commission's order given to the person
13-19 under Chapter 2001, Government Code, must include a statement of
13-20 the right of the person to judicial review of the order.
13-21 (j) Within 30 days after the date the commission's order is
13-22 final as provided by Section 2001.144, Government Code, the person
13-23 shall:
13-24 (1) pay the amount of the penalty;
13-25 (2) pay the amount of the penalty and file a petition
13-26 for judicial review contesting the occurrence of the violation, the
13-27 amount of the penalty, or both the occurrence of the violation and
13-28 the amount of the penalty; or
13-29 (3) without paying the amount of the penalty, file a
13-30 petition for judicial review contesting the occurrence of the
13-31 violation, the amount of the penalty, or both the occurrence of the
13-32 violation and the amount of the penalty.
13-33 (k) Within the 30-day period, a person who acts under
13-34 Subsection (j)(3) of this section may:
13-35 (1) stay enforcement of the penalty by:
13-36 (A) paying the amount of the penalty to the
13-37 court for placement in an escrow account; or
13-38 (B) giving to the court a supersedeas bond that
13-39 is approved by the court for the amount of the penalty and that is
13-40 effective until all judicial review of the commission's order is
13-41 final; or
13-42 (2) request the court to stay enforcement of the
13-43 penalty by:
13-44 (A) filing with the court a sworn affidavit of
13-45 the person stating that the person is financially unable to pay the
13-46 amount of the penalty and is financially unable to give the
13-47 supersedeas bond; and
13-48 (B) giving a copy of the affidavit to the
13-49 executive director by certified mail.
13-50 (l) The executive director, on receipt of a copy of an
13-51 affidavit under Subsection (k)(2) of this section, may file with
13-52 the court, within five days after the date the copy is received, a
13-53 contest to the affidavit. The court shall hold a hearing on the
13-54 facts alleged in the affidavit as soon as practicable and shall
13-55 stay the enforcement of the penalty on finding that the alleged
13-56 facts are true. The person who files an affidavit has the burden
13-57 of proving that the person is financially unable to pay the amount
13-58 of the penalty and to give a supersedeas bond.
13-59 (m) If the person does not pay the amount of the penalty and
13-60 the enforcement of the penalty is not stayed, the executive
13-61 director may refer the matter to the attorney general for
13-62 collection of the amount of the penalty.
13-63 (n) Judicial review of the order of the commission:
13-64 (1) is instituted by filing a petition as provided by
13-65 Subchapter G, Chapter 2001, Government Code; and
13-66 (2) is under the substantial evidence rule.
13-67 (o) If the court sustains the occurrence of the violation,
13-68 the court may uphold or reduce the amount of the penalty and order
13-69 the person to pay the full or reduced amount of the penalty. If
13-70 the court does not sustain the occurrence of the violation, the
14-1 court shall order that no penalty is owed.
14-2 (p) When the judgment of the court becomes final, the court
14-3 shall proceed under this subsection. If the person paid the amount
14-4 of the penalty and if that amount is reduced or is not upheld by
14-5 the court, the court shall order that the appropriate amount plus
14-6 accrued interest be remitted to the person. The rate of the
14-7 interest is the rate charged on loans to depository institutions by
14-8 the New York Federal Reserve Bank, and the interest shall be paid
14-9 for the period beginning on the date the penalty was paid and
14-10 ending on the date the penalty is remitted. If the person gave a
14-11 supersedeas bond and if the amount of the penalty is not upheld by
14-12 the court, the court shall order the release of the bond. If the
14-13 person gave a supersedeas bond and if the amount of the penalty is
14-14 reduced, the court shall order the release of the bond after the
14-15 person pays the amount.
14-16 (q) A penalty collected under this section shall be remitted
14-17 to the comptroller for deposit in the general revenue fund.
14-18 (r) All proceedings under this section are subject to
14-19 Chapter 2001, Government Code.
14-20 (s) The executive director may delegate to a person that the
14-21 executive director designates any power or duty given the executive
14-22 director by this section.
14-23 SECTION 27. Subsection (b), Section 1.351, Public Utility
14-24 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
14-25 74th Legislature, Regular Session, 1995, is amended to read as
14-26 follows:
14-27 (b) The legislature may <commission shall, subject to the
14-28 approval of the legislature,> adjust this assessment to provide a
14-29 level of income sufficient to fund the commission and the office of
14-30 public utility counsel.
14-31 SECTION 28. Section 1.354, Public Utility Regulatory Act of
14-32 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
14-33 Regular Session, 1995, is amended to read as follows:
14-34 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
14-35 FUND. (a) All fees, penalties, and interest paid under the
14-36 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
14-37 shall be collected by the comptroller of public accounts and paid
14-38 into the general revenue fund. <The commission shall notify the
14-39 comptroller of public accounts of any adjustment of the assessment
14-40 imposed in Section 1.351 when made.>
14-41 (b) All money paid to the commission or to the office under
14-42 this Act is subject to Subchapter F, Chapter 404, Government Code.
14-43 SECTION 29. Subtitle J, Title I, Public Utility Regulatory
14-44 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
14-45 Legislature, Regular Session, 1995, is amended by adding Section
14-46 1.357 to read as follows:
14-47 Sec. 1.357. GRANTS OF FEDERAL FUNDS. (a) The commission
14-48 may apply to any appropriate agency or officer of the United States
14-49 to receive and spend federal funds which it may obtain from grants
14-50 or other similar forms of financial assistance. Nothing in this
14-51 section shall inhibit the commission's ability to contract with or
14-52 otherwise receive assistance from any state, local, or other
14-53 authorized source of funds.
14-54 (b) Sections 403.094 and 403.095, Government Code, do not
14-55 apply to the special account established under this section.
14-56 SECTION 30. Subsections (a) and (b), Section 1.401, Public
14-57 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
14-58 the 74th Legislature, Regular Session, 1995, are amended to read as
14-59 follows:
14-60 (a) Any affected person may complain to the regulatory
14-61 authority in writing setting forth any act or thing done or omitted
14-62 to be done by any public utility in violation or claimed violation
14-63 of any law which the regulatory authority has jurisdiction to
14-64 administer or of any order, ordinance, rule, or regulation of the
14-65 regulatory authority. The commission shall keep <an> information
14-66 <file> about each complaint filed with the commission <relating to
14-67 a utility>. The commission shall retain the information <file> for
14-68 a reasonable period. The information shall include:
14-69 (1) the date the complaint is received;
14-70 (2) the name of the complainant;
15-1 (3) the subject matter of the complaint;
15-2 (4) a record of all persons contacted in relation to
15-3 the complaint;
15-4 (5) a summary of the results of the review or
15-5 investigation of the complaint; and
15-6 (6) for complaints for which the commission took no
15-7 action, an explanation of the reason the complaint was closed
15-8 without action.
15-9 (b) The commission shall keep a file about each <If a>
15-10 written complaint <is> filed with the commission. The commission
15-11 shall provide to the person filing the complaint and to the persons
15-12 or entities complained about the commission's policies and
15-13 procedures pertaining to complaint investigation and resolution.
15-14 The <relating to a utility, the> commission, at least <as
15-15 frequently as> quarterly and until final disposition of the
15-16 complaint, shall notify the person filing <parties to> the
15-17 complaint and each person or entity complained about of the status
15-18 of the complaint unless the notice would jeopardize an undercover
15-19 investigation.
15-20 SECTION 31. Subtitle K, Title I, Public Utility Regulatory
15-21 Act of 1995, as enacted by S.B. 319, Acts of the 74th Legislature,
15-22 Regular Session, 1995, is amended by adding Section 1.407 to read
15-23 as follows:
15-24 Sec. 1.407. HISTORICALLY UNDERUTILIZED BUSINESSES. (a) The
15-25 commission by rule shall require each utility to make a good faith
15-26 effort to overcome the underuse of historically underutilized
15-27 businesses as shown for private industry by the disparity study
15-28 conducted under H.B. 2626, Acts of the 73rd Legislature, 1993.
15-29 (b) The commission may conduct further research and analysis
15-30 to adjust the results of the disparity study as necessary to
15-31 account for specific underuse of historically underutilized
15-32 businesses by the utility industry.
15-33 (c) The rules adopted under this section must require each
15-34 utility to prepare and submit to the commission a strategic plan
15-35 for use of historically underutilized businesses.
15-36 SECTION 32. Subchapter C, Chapter 2003, Government Code, is
15-37 amended by adding Section 2003.047 to read as follows:
15-38 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
15-39 establish a utility division to perform the contested case hearings
15-40 for the Public Utility Commission of Texas as prescribed by the
15-41 Public Utility Regulatory Act of 1995 and other applicable law.
15-42 (b) The utility division shall conduct hearings relating to
15-43 contested cases before the commission, other than a hearing
15-44 conducted by one or more commissioners. The commission by rule may
15-45 delegate the responsibility to hear any other matter before the
15-46 commission if consistent with the duties and responsibilities of
15-47 the division.
15-48 (c) Only an administrative law judge in the utility division
15-49 may conduct a hearing on behalf of the commission. An
15-50 administrative law judge in the utility division may conduct
15-51 hearings for other state agencies as time allows. The office may
15-52 transfer an administrative law judge into the division on a
15-53 temporary or permanent basis and may contract with qualified
15-54 individuals to serve as temporary administrative law judges as
15-55 necessary.
15-56 (d) To be eligible to preside at a hearing, an
15-57 administrative law judge, regardless of temporary or permanent
15-58 status, must be licensed to practice law in this state and have not
15-59 less than five years of general experience or three years of
15-60 experience in utility regulatory law.
15-61 (e) At the time the office receives jurisdiction of a
15-62 proceeding, the commission shall provide to the administrative law
15-63 judge a list of issues or areas that must be addressed. In
15-64 addition, the commission may identify and provide to the
15-65 administrative law judge at any time additional issues or areas
15-66 that must be addressed.
15-67 (f) The office and the commission shall jointly adopt rules
15-68 providing for certification to the commission of an issue that
15-69 involves an ultimate finding of compliance with or satisfaction of
15-70 a statutory standard the determination of which is committed to the
16-1 discretion or judgment of the commission by law. The rules must
16-2 address, at a minimum, the issues that are appropriate for
16-3 certification and the procedure to be used in certifying the issue.
16-4 Each agency shall publish the jointly adopted rules.
16-5 (g) Notwithstanding Section 2001.058, the commission may
16-6 change a finding of fact or conclusion of law made by the
16-7 administrative law judge or vacate or modify an order issued by the
16-8 administrative law judge only if the commission:
16-9 (1) determines that the administrative law judge:
16-10 (A) did not properly apply or interpret
16-11 applicable law, commission rules or policies, or prior
16-12 administrative decisions; or
16-13 (B) issued a finding of fact that is not
16-14 supported by a preponderance of the evidence; or
16-15 (2) determines that a commission policy or a prior
16-16 administrative decision on which the administrative law judge
16-17 relied is incorrect or should be changed.
16-18 (h) The commission shall state in writing the specific
16-19 reason and legal basis for its determination under Subsection (g).
16-20 (i) An administrative law judge, on the judge's own motion
16-21 or on motion of a party and after notice and an opportunity for a
16-22 hearing, may impose appropriate sanctions as provided by Subsection
16-23 (j) against a party or its representative for:
16-24 (1) filing a motion or pleading that is groundless and
16-25 brought:
16-26 (A) in bad faith;
16-27 (B) for the purpose of harassment; or
16-28 (C) for any other improper purpose, such as to
16-29 cause unnecessary delay or needless increase in the cost of the
16-30 proceeding;
16-31 (2) abuse of the discovery process in seeking, making,
16-32 or resisting discovery; or
16-33 (3) failure to obey an order of the administrative law
16-34 judge or the commission.
16-35 (j) A sanction imposed under Subsection (i) may include, as
16-36 appropriate and justified, issuance of an order:
16-37 (1) disallowing further discovery of any kind or of a
16-38 particular kind by the offending party;
16-39 (2) charging all or any part of the expenses of
16-40 discovery against the offending party or its representative;
16-41 (3) holding that designated facts be deemed admitted
16-42 for purposes of the proceeding;
16-43 (4) refusing to allow the offending party to support
16-44 or oppose a designated claim or defense or prohibiting the party
16-45 from introducing designated matters in evidence;
16-46 (5) disallowing in whole or in part requests for
16-47 relief by the offending party and excluding evidence in support of
16-48 such requests;
16-49 (6) punishing the offending party or its
16-50 representative for contempt to the same extent as a district court;
16-51 (7) requiring the offending party or its
16-52 representative to pay, at the time ordered by the administrative
16-53 law judge, the reasonable expenses, including attorney's fees,
16-54 incurred by other parties because of the sanctionable behavior; and
16-55 (8) striking pleadings or testimony, or both, in whole
16-56 or in part, or staying further proceedings until the order is
16-57 obeyed.
16-58 (k) Hearings conducted for the commission by the office
16-59 shall be held in hearing rooms provided by the commission. The
16-60 commission shall also provide the utility division access to its
16-61 computer systems, databases, and library resources.
16-62 (l) The office shall charge the commission a fixed annual
16-63 fee rather than an hourly rate for services rendered by the utility
16-64 division to the commission. The office and the commission shall
16-65 negotiate the amount of the fixed fee biennially, subject to the
16-66 approval of the governor, to coincide with the commission's
16-67 legislative appropriations request.
16-68 SECTION 33. Chapter 166, Acts of the 63rd Legislature,
16-69 Regular Session, 1973 (Article 1435a, Vernon's Texas Civil
16-70 Statutes), is amended by adding Section 4c to read as follows:
17-1 Sec. 4c. (a) Subject to the approval of the Public Utility
17-2 Commission of Texas, an electric cooperative corporation may form a
17-3 joint powers agency with one or more public entities and
17-4 participate in an existing joint powers agency in which at least
17-5 one public entity is a member and participant, as if the electric
17-6 cooperative corporation were a public entity.
17-7 (b) The Public Utility Commission of Texas shall approve
17-8 participation by an electric cooperative corporation under this
17-9 section if the commission determines that the participation meets
17-10 the requirements of law.
17-11 (c) A joint powers agency in which an electric cooperative
17-12 corporation participates under this section is a governmental body
17-13 subject to Chapter 551, Government Code.
17-14 (d) This section may not be construed to authorize or
17-15 entitle an electric cooperative corporation to issue bonds or other
17-16 securities that are exempt from taxation under federal law.
17-17 SECTION 34. Section 4A, Electric Cooperative Corporation Act
17-18 (Article 1528b, Vernon's Texas Civil Statutes), is amended to read
17-19 as follows:
17-20 Sec. 4A. Additional Powers. Notwithstanding any other
17-21 provision of this Act, a corporation has authority to generate,
17-22 manufacture, purchase, acquire, and accumulate electric energy and
17-23 to transmit, distribute, sell, furnish, and dispose of such
17-24 electric energy to the following entities if the same are engaged
17-25 in the generation, <and> transmission, or distribution of
17-26 electricity <for resale>:
17-27 (1) firms, associations, corporations, except those
17-28 who meet the criteria for a small power production facility and/or
17-29 a cogeneration facility under Section 201 of the Public Utility
17-30 Regulatory Policies Act of 1978 (PURPA);
17-31 (2) federal agency;
17-32 (3) state or political subdivision of a state <with
17-33 an installed generation capacity in excess of 500 MW>; or
17-34 (4) a municipal power agency or political subdivision
17-35 of a state which is a co-owner with such corporation of a jointly
17-36 owned electric generation facility.
17-37 <A corporation may also sell, furnish, and dispose of the
17-38 electric energy to a political subdivision of the state which is
17-39 engaged in the generation, transmission, or distribution of
17-40 electricity for resale and to which the corporation was selling and
17-41 furnishing electric energy on December 31, 1982.>
17-42 The members-only requirement of Section 4(4) of this Act
17-43 shall continue to apply to all sales by a corporation to other
17-44 persons and entities.
17-45 SECTION 35. Section 171.079, Tax Code, is amended to read as
17-46 follows:
17-47 Sec. 171.079. EXEMPTION--ELECTRIC COOPERATIVE CORPORATION.
17-48 An electric cooperative corporation incorporated under the Electric
17-49 Cooperative Corporation Act (Article 1528b, Vernon's Texas Civil
17-50 Statutes) that is not a participant in a joint powers agency is
17-51 exempted from the franchise tax.
17-52 SECTION 36. (a) A task force is established to administer
17-53 the transfer of the hearings division from the Public Utility
17-54 Commission of Texas to the State Office of Administrative Hearings.
17-55 The task force is composed of:
17-56 (1) the governor or the governor's designee;
17-57 (2) the Legislative Budget Board or the board's
17-58 designee;
17-59 (3) the chairman of the Public Utility Commission of
17-60 Texas;
17-61 (4) the public utility counsel; and
17-62 (5) the chief administrative law judge of the State
17-63 Office of Administrative Hearings.
17-64 (b) The governor or the governor's designee is the presiding
17-65 officer of the task force.
17-66 (c) The task force shall:
17-67 (1) determine the personnel, equipment, data,
17-68 facilities, and other items that will be transferred under this Act
17-69 and the schedule for the transfers; and
17-70 (2) mediate and resolve disputes between the
18-1 respective agencies relating to a transfer.
18-2 (d) After the transfers have been completed, the task force
18-3 shall prepare a written report detailing the specifics of the
18-4 transfers and shall submit the report to the governor and the
18-5 legislature.
18-6 (e) In determining a transfer under this Act, the task force
18-7 shall ensure that the transfer does not adversely affect a
18-8 proceeding before the Public Utility Commission of Texas or the
18-9 rights of the parties to the proceeding.
18-10 (f) This section takes effect immediately.
18-11 SECTION 37. (a) On September 1, 1995, all personnel,
18-12 including hearings examiners and administrative law judges,
18-13 equipment, data, facilities, and other items of the hearings
18-14 division of the Public Utility Commission of Texas, other than the
18-15 personnel, equipment, data, facilities, and other items of the
18-16 central records office, are transferred to the utility division of
18-17 the State Office of Administrative Hearings. Until September 1,
18-18 1996, an employee transferred to the utility division may be
18-19 terminated or subject to salary reduction only for cause and only
18-20 in relation to poor performance or unacceptable conduct. A
18-21 hearings examiner transferred to the State Office of Administrative
18-22 Hearings becomes an administrative law judge on the date of
18-23 transfer.
18-24 (b) A hearings examiner or administrative law judge
18-25 transferred from the Public Utility Commission of Texas to the
18-26 State Office of Administrative Hearings shall continue to hear any
18-27 case assigned to the person as if the transfer had not occurred.
18-28 (c) The changes in law made by this Act that relate to the
18-29 procedures governing a hearing before the utility division of the
18-30 State Office of Administrative Hearings apply only to a case that
18-31 is filed on or after September 1, 1995. In addition, the
18-32 procedures prescribed by the provisions amended by this Act shall
18-33 continue to be used in a hearing as those provisions existed on
18-34 August 31, 1995. The former law is continued in effect for those
18-35 purposes.
18-36 (d) The Public Utility Commission of Texas is not required
18-37 by this Act or amendments made by this Act to adopt new rules
18-38 governing practice and procedure before the Public Utility
18-39 Commission of Texas or the utility division of the State Office of
18-40 Administrative Hearings. The rules in effect on the effective date
18-41 of this Act remain in effect until amended or repealed as required
18-42 by law. Any rules adopted after the effective date of this Act
18-43 governing practice and procedure before the utility division of the
18-44 State Office of Administrative Hearings must be adopted jointly by
18-45 that office and the commission.
18-46 SECTION 38. Section 1.3215, Public Utility Regulatory Act of
18-47 1995, as added by this Act, applies only to a violation committed
18-48 on or after the effective date of this Act. A violation committed
18-49 before the effective date of this Act is governed by the law in
18-50 effect when the violation occurred, and that law is continued in
18-51 effect for that purpose.
18-52 SECTION 39. Section 1.104, Public Utility Regulatory Act of
18-53 1995, as added by this Act, applies only to a proceeding for which
18-54 a final order has not been issued before the effective date of this
18-55 Act and does not apply to an electric utility merger proceeding
18-56 filed before January 1, 1995, in which a final order has not been
18-57 issued. Except as otherwise provided by this section, on or after
18-58 the effective date of this Act, the Public Utility Commission of
18-59 Texas may not approve a settlement unless the settlement has been
18-60 reached in accordance with rules adopted under Section 1.104,
18-61 Public Utility Regulatory Act of 1995, as added by this Act.
18-62 SECTION 40. The changes in law made by this Act relating to
18-63 the requirements for membership on the Public Utility Commission of
18-64 Texas, to the requirements for service as public utility counsel,
18-65 or to employment as executive director or general counsel of the
18-66 commission apply only to a person appointed or hired, as
18-67 appropriate, on or after the effective date of this Act and do not
18-68 affect the entitlement of a member serving on the commission on
18-69 August 31, 1995, to continue to hold office for the remainder of
18-70 the term for which the person was appointed or the ability of a
19-1 person serving as public utility counsel, executive director, or
19-2 general counsel on August 31, 1995, to continue to hold that
19-3 position.
19-4 SECTION 41. Except as otherwise provided by this Act, this
19-5 Act takes effect September 1, 1995.
19-6 SECTION 42. The importance of this legislation and the
19-7 crowded condition of the calendars in both houses create an
19-8 emergency and an imperative public necessity that the
19-9 constitutional rule requiring bills to be read on three several
19-10 days in each house be suspended, and this rule is hereby suspended,
19-11 and that this Act take effect and be in force according to its
19-12 terms, and it is so enacted.
19-13 * * * * *