S.B. No. 373
AN ACT
1-1 relating to the continuation, operations, and functions of the
1-2 Public Utility Commission of Texas and the Office of Public Utility
1-3 Counsel; providing penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1
1-6 SECTION 1.01. Section 1.003, Public Utility Regulatory Act
1-7 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-8 Regular Session, 1995, is amended by adding Subdivisions (13A) and
1-9 (18) to read as follows:
1-10 (13A) The term "ratemaking proceeding" is limited to
1-11 those proceedings in which rates are changed, except the term shall
1-12 include proceedings initiated under Section 2.051 of this Act.
1-13 (18) "Trade association" means a nonprofit,
1-14 cooperative, and voluntarily joined association of business or
1-15 professional persons who are employed by public utilities or
1-16 utility competitors to assist the public utility industry, a
1-17 utility competitor, or the industry's or competitor's employees in
1-18 dealing with mutual business or professional problems and in
1-19 promoting their common interest.
1-20 SECTION 1.02. Section 1.005, Public Utility Regulatory Act
1-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-22 Regular Session, 1995, is amended to read as follows:
1-23 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
1-24 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
2-1 to all proceedings under this Act except to the extent inconsistent
2-2 with this Act. Communications of members and employees of the
2-3 commission with a party, a party's representative, or other persons
2-4 are governed by Section 2001.061, Government Code.
2-5 (b) The commission is subject to Chapter 551, Government
2-6 Code.
2-7 SECTION 1.03. Subtitle A, Title I, Public Utility Regulatory
2-8 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
2-9 Legislature, Regular Session, 1995, is amended by adding Section
2-10 1.006 to read as follows:
2-11 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
2-12 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
2-13 utility competitor, or utility supplier is considered to be
2-14 affected in a manner other than by the setting of rates for that
2-15 class of customer if during a relevant calendar year the entity
2-16 provides fuel, utility-related goods, utility-related products, or
2-17 utility-related services to a regulated or unregulated provider of
2-18 telecommunications or electric services or to an affiliated
2-19 interest in an amount equal to the greater of $10,000 or 10 percent
2-20 of the person's business.
2-21 SECTION 1.04. Subsections (c) and (d), Section 1.021, Public
2-22 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
2-23 the 74th Legislature, Regular Session, 1995, are amended to read as
2-24 follows:
2-25 (c) The governor shall designate a member of the commission
2-26 as presiding officer of the commission to serve in that capacity at
2-27 the pleasure of the governor. <At its first meeting following the
3-1 biennial appointment and qualification of a commissioner, the
3-2 commission shall elect one of the commissioners chairman.>
3-3 (d) Appointments to the commission shall be made without
3-4 regard to the race, color, disability <creed>, sex, religion, age,
3-5 or national origin of the appointees.
3-6 SECTION 1.05. Section 1.022, Public Utility Regulatory Act
3-7 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-8 Regular Session, 1995, is amended to read as follows:
3-9 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
3-10 of Texas and the Office of Public Utility Counsel are subject to
3-11 Chapter 325, Government Code (Texas Sunset Act). Unless continued
3-12 in existence as provided by that chapter, the commission and the
3-13 office are abolished and this Act expires September 1, 2001 <1995>.
3-14 SECTION 1.06. Section 1.023, Public Utility Regulatory Act
3-15 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-16 Regular Session, 1995, is amended to read as follows:
3-17 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
3-18 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
3-19 a person must be a qualified voter, <not less than 30 years of
3-20 age,> a citizen of the United States, <and> a resident of the State
3-21 of Texas, and a representative of the general public.
3-22 (b) Each commissioner shall qualify for office by taking the
3-23 oath prescribed for other state officers <and shall execute a bond
3-24 for $5,000 payable to the state and conditioned on the faithful
3-25 performance of his duties>.
3-26 (c) A person is not eligible for appointment as a
3-27 commissioner if at any time during the two-year period immediately
4-1 preceding his appointment he personally served as an officer,
4-2 director, owner, employee, partner, or legal representative of any
4-3 public utility, <or any> affiliated interest, or direct competitor
4-4 of a public utility or he owned or controlled, directly or
4-5 indirectly, stocks or bonds of any class with a value of $10,000 or
4-6 more in a public utility, <or any> affiliated interest, or direct
4-7 competitor of a public utility.
4-8 (d) A person who is required to register as a lobbyist under
4-9 Chapter 305, Government Code, because of the person's activities
4-10 for compensation on behalf of a profession related to the operation
4-11 of the commission may not serve as a member of the commission or
4-12 public utility counsel or act as the general counsel to the
4-13 commission.
4-14 (e) A person is not eligible for appointment as a public
4-15 member of the commission or for employment as the general counsel
4-16 or executive director of the commission if:
4-17 (1) the person serves on the board of directors of a
4-18 company that supplies fuel, utility-related services, or
4-19 utility-related products to regulated or unregulated electric or
4-20 telecommunications utilities; or
4-21 (2) the person or the person's spouse:
4-22 (A) is employed by or participates in the
4-23 management of a business entity or other organization regulated by
4-24 the commission or receiving funds from the commission;
4-25 (B) owns or controls, directly or indirectly,
4-26 more than a 10 percent interest or a pecuniary interest with a
4-27 value exceeding $10,000 in:
5-1 (i) a business entity or other
5-2 organization regulated by the commission or receiving funds from
5-3 the commission; or
5-4 (ii) any utility competitor, utility
5-5 supplier, or other entity affected by a commission decision in a
5-6 manner other than by the setting of rates for that class of
5-7 customer;
5-8 (C) uses or receives a substantial amount of
5-9 tangible goods, services, or funds from the commission, other than
5-10 compensation or reimbursement authorized by law for commission
5-11 membership, attendance, or expenses; or
5-12 (D) notwithstanding Paragraph (B) of this
5-13 subdivision, has an interest in a mutual fund or retirement fund in
5-14 which more than 10 percent of the fund's holdings at the time of
5-15 appointment is in a single utility, utility competitor, or utility
5-16 supplier in this state and the person does not disclose this
5-17 information to the governor, senate, commission, or other entity,
5-18 as appropriate.
5-19 (f) Notwithstanding any other provision of this Act, a
5-20 person otherwise ineligible because of the application of
5-21 Subsection (e)(2)(B) of this section may be appointed to the
5-22 commission and serve as a commissioner or may be employed as the
5-23 general counsel or executive director if the person:
5-24 (1) notifies the attorney general and commission that
5-25 the person is ineligible because of the application of Subsection
5-26 (e)(2)(B) of this section; and
5-27 (2) divests the person or the person's spouse of the
6-1 ownership or control before beginning service or employment, or
6-2 within a reasonable time if the person is already serving or
6-3 employed at the time Subsection (e)(2)(B) of this section first
6-4 applies to the person.
6-5 (g) An officer, employee, or paid consultant of a trade
6-6 association in the field of public utilities may not be a member or
6-7 employee of the commission who is exempt from the state's position
6-8 classification plan or is compensated at or above the amount
6-9 prescribed by the General Appropriations Act for step 1, salary
6-10 group 17, of the position classification salary schedule.
6-11 (h) A person who is a spouse of an officer, manager, or paid
6-12 consultant of a trade association in the field of public utilities
6-13 may not be a commission member and may not be a commission employee
6-14 who is exempt from the state's position classification plan or is
6-15 compensated at or above the amount prescribed by the General
6-16 Appropriations Act for step 1, salary group 17, of the position
6-17 classification salary schedule.
6-18 SECTION 1.07. Subsections (a), (d), and (e), Section 1.024,
6-19 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
6-20 Acts of the 74th Legislature, Regular Session, 1995, are amended to
6-21 read as follows:
6-22 (a) A commissioner or employee of the commission may not do
6-23 any of the following during his period of service with the
6-24 commission:
6-25 (1) have any pecuniary interest, either as an officer,
6-26 director, partner, owner, employee, attorney, consultant, or
6-27 otherwise, in any public utility or affiliated interest, or in any
7-1 person or corporation or other business entity a significant
7-2 portion of whose business consists of furnishing goods or services
7-3 to public utilities or affiliated interests, but not including a
7-4 nonprofit group or association solely supported by gratuitous
7-5 contributions of money, property or services, other than a trade
7-6 association;
7-7 (2) own or control any securities in a public utility,
7-8 <or> affiliated interest, or direct competitor of a public utility,
7-9 either directly or indirectly; or
7-10 (3) accept any gift, gratuity, or entertainment
7-11 whatsoever from any public utility, <or> affiliated interest, or
7-12 direct competitor of a public utility, or from any person,
7-13 corporation, agent, representative, employee, or other business
7-14 entity a significant portion of whose business consists of
7-15 furnishing goods or services to public utilities, <or> affiliated
7-16 interests, or direct competitors of public utilities, or from any
7-17 agent, representative, attorney, employee, officer, owner,
7-18 director, or partner of any such business entity or of any public
7-19 utility, <or> affiliated interest, or direct competitor of a public
7-20 utility; provided, however, that the receipt and acceptance of any
7-21 gifts, gratuities, or entertainment after termination of service
7-22 with the commission whose cumulative value in any one-year period
7-23 is less than $100 does not constitute a violation of this Act.
7-24 (d) A public utility, <or> affiliated interest, or direct
7-25 competitor of a public utility, or any person, corporation, firm,
7-26 association, or business that furnishes goods or services to any
7-27 public utility, <or> affiliated interest, or direct competitor of a
8-1 public utility, or any agent, representative, attorney, employee,
8-2 officer, owner, director, or partner of any public utility, <or>
8-3 affiliated interest, or direct competitor of a public utility, or
8-4 any person, corporation, firm, association, or business furnishing
8-5 goods or services to any public utility, <or> affiliated interest,
8-6 or direct competitor of a public utility may not give or offer to
8-7 give any gift, gratuity, employment, or entertainment whatsoever to
8-8 any member or employee of the commission except as allowed by
8-9 Subdivision (3) of Subsection (a) of this section, nor may any such
8-10 public utility, <or> affiliated interest, or direct competitor of a
8-11 public utility or any such person, corporation, firm, association,
8-12 or business aid, abet, or participate with any member, employee, or
8-13 former employee of the commission in any activity or conduct that
8-14 would constitute a violation of this subsection or Subdivision (3)
8-15 of Subsection (a) of this section.
8-16 (e) It is not a violation of this section if a member of the
8-17 commission or a person employed by the commission, upon becoming
8-18 the owner of any stocks or bonds or other pecuniary interest in a
8-19 public utility, <or> affiliated interest, or direct competitor of a
8-20 public utility <under the jurisdiction of the commission> otherwise
8-21 than voluntarily, informs the commission and the attorney general
8-22 of such ownership and divests himself of the ownership or interest
8-23 within a reasonable time. In this section, a "pecuniary interest"
8-24 includes income, compensation, and payment of any kind, in addition
8-25 to ownership interests. It is not a violation of this section if
8-26 such a pecuniary interest is held indirectly by ownership of an
8-27 interest in a retirement system, institution, or fund which in the
9-1 normal course of business invests in diverse securities
9-2 independently of the control of the commissioner or employee.
9-3 SECTION 1.08. Section 1.025, Public Utility Regulatory Act
9-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-5 Regular Session, 1995, is amended to read as follows:
9-6 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
9-7 (a) A commissioner may not within two years, and an employee of
9-8 the commission or an employee of the State Office of Administrative
9-9 Hearings involved in hearing utility cases may not, within one year
9-10 after his employment with the commission or the State Office of
9-11 Administrative Hearings has ceased, be employed by a public utility
9-12 which was in the scope of the commissioner's or employee's official
9-13 responsibility while the commissioner or employee was associated
9-14 with the commission or the State Office of Administrative Hearings.
9-15 (b) During the time a commissioner or employee of the
9-16 commission or an employee of the State Office of Administrative
9-17 Hearings involved in hearing utility cases is associated with the
9-18 commission or State Office of Administrative Hearings or at any
9-19 time after, the commissioner or employee may not represent a
9-20 person, corporation, or other business entity before the commission
9-21 or State Office of Administrative Hearings or a court in a matter
9-22 in which the commissioner or employee was personally involved while
9-23 associated with the commission or State Office of Administrative
9-24 Hearings or a matter that was within the commissioner's or
9-25 employee's official responsibility while the commissioner or
9-26 employee was associated with the commission or State Office of
9-27 Administrative Hearings.
10-1 (c) The executive director or the executive director's
10-2 designee <commission> shall provide to <require its> members of the
10-3 commission and to agency employees <to read this section and
10-4 Section 1.024 of this Act and> as often as necessary <shall
10-5 provide> information regarding their qualifications for office or
10-6 employment under this Act and their responsibilities under
10-7 applicable laws relating to standards of conduct for state officers
10-8 and employees.
10-9 SECTION 1.09. Section 1.026, Public Utility Regulatory Act
10-10 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-11 Regular Session, 1995, is amended to read as follows:
10-12 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
10-13 (a) It is a ground for removal from the commission if a member:
10-14 (1) does not have at the time of appointment the
10-15 qualifications required by Section 1.023 of this Act <for
10-16 appointment to the commission>; <or>
10-17 (2) does not maintain during <the> service on the
10-18 commission the qualifications required by Section 1.023 of this
10-19 Act;
10-20 (3) violates a prohibition established by Section
10-21 1.023, 1.024, or 1.025 of this Act;
10-22 (4) cannot discharge the member's duties for a
10-23 substantial part of the term for which the member is appointed
10-24 because of illness or disability; or
10-25 (5) is absent from more than half of the regularly
10-26 scheduled commission meetings that the member is eligible to attend
10-27 during a calendar year unless the absence is excused by majority
11-1 vote of <for appointment to> the commission.
11-2 (b) The validity of an action of the commission is not
11-3 affected by the fact that it is <was> taken when a ground for
11-4 removal of a commission member exists <of the commission existed>.
11-5 (c) If the executive director has knowledge that a potential
11-6 ground for removal exists, the executive director shall notify the
11-7 presiding officer of the commission of the potential ground. The
11-8 presiding officer shall then notify the governor and the attorney
11-9 general that a potential ground for removal exists. If the
11-10 potential ground for removal involves the presiding officer of the
11-11 commission, the executive director shall notify the next highest
11-12 officer of the commission, who shall notify the governor and the
11-13 attorney general that a potential ground for removal exists.
11-14 (d) Before a member of the commission may assume the
11-15 member's duties and before the member may be confirmed by the
11-16 senate, the member must complete at least one course of the
11-17 training program established under this section.
11-18 (e) A training program established under this section shall
11-19 provide information to the member regarding:
11-20 (1) the enabling legislation that created the
11-21 commission and its policymaking body to which the member is
11-22 appointed to serve;
11-23 (2) the programs operated by the commission;
11-24 (3) the role and functions of the commission;
11-25 (4) the rules of the commission with an emphasis on
11-26 the rules that relate to disciplinary and investigatory authority;
11-27 (5) the current budget for the commission;
12-1 (6) the results of the most recent formal audit of the
12-2 commission;
12-3 (7) the requirements of Chapters 551, 552, and 2001,
12-4 Government Code;
12-5 (8) the requirements of the conflict of interest laws
12-6 and other laws relating to public officials; and
12-7 (9) any applicable ethics policies adopted by the
12-8 commission or the Texas Ethics Commission.
12-9 SECTION 1.10. Subsections (a), (b), and (e), Section 1.028,
12-10 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
12-11 Acts of the 74th Legislature, Regular Session, 1995, are amended to
12-12 read as follows:
12-13 (a) The commission shall employ an executive director, a
12-14 general counsel, and such officers<, administrative law judges,
12-15 hearing examiners, investigators, lawyers, engineers, economists,
12-16 consultants, statisticians, accountants, administrative assistants,
12-17 inspectors, clerical staff,> and other employees as it deems
12-18 necessary to carry out the provisions of this Act. All employees
12-19 receive such compensation as is fixed by the legislature. The
12-20 commission shall develop and implement policies that clearly define
12-21 the respective responsibilities of the commission and the staff of
12-22 the commission.
12-23 (b) The executive director is responsible for the day-to-day
12-24 operations of the commission and shall coordinate the activities of
12-25 commission employees <commission shall employ the following:>
12-26 <(1) an executive director;>
12-27 <(2) a director of hearings who has wide experience in
13-1 utility regulation and rate determination;>
13-2 <(3) a chief engineer who is a registered engineer and
13-3 an expert in public utility engineering and rate matters;>
13-4 <(4) a chief accountant who is a certified public
13-5 accountant, experienced in public utility accounting;>
13-6 <(5) a director of research who is experienced in the
13-7 conduct of analyses of industry, economics, energy, fuel, and other
13-8 related matters that the commission may want to undertake;>
13-9 <(6) a director of consumer affairs and public
13-10 information;>
13-11 <(7) a director of utility evaluation;>
13-12 <(8) a director of energy conservation; and>
13-13 <(9) a general counsel.>
13-14 <(e) The commission shall employ administrative law judges
13-15 to preside at hearings of major importance before the commission.
13-16 An administrative law judge must be a licensed attorney with not
13-17 less than five years' general experience or three years' experience
13-18 in utility regulatory law. The administrative law judge shall
13-19 perform his duties independently from the commission>.
13-20 SECTION 1.11. Section 1.029, Public Utility Regulatory Act
13-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
13-22 Regular Session, 1995, is amended to read as follows:
13-23 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
13-24 or the executive director's <his> designee shall develop an
13-25 intra-agency career ladder program that addresses opportunities for
13-26 mobility and advancement for employees of the commission. The
13-27 program shall require intra-agency posting of all positions
14-1 concurrently with<, one part of which shall be the intra-agency
14-2 posting of all nonentry level positions for at least 10 days
14-3 before> any public posting. The executive director or the
14-4 executive director's <his> designee shall develop a system of
14-5 annual performance evaluations that are based on documented
14-6 employee performance <measurable job tasks>. All merit pay for
14-7 commission employees must be based on the system established under
14-8 this section.
14-9 (b) The executive director or the executive director's
14-10 <his/her> designee shall prepare and maintain a written policy
14-11 statement <plan> to assure implementation of a program of equal
14-12 employment opportunity under which <whereby> all personnel
14-13 transactions are made without regard to race, color, disability,
14-14 sex, religion, age, or national origin. The policy statement must
14-15 <plan shall> include:
14-16 (1) personnel policies that comply with Chapter 21,
14-17 Labor Code, including policies relating to recruitment, evaluation,
14-18 selection, appointment, training, and promotion of personnel;
14-19 (2) a comprehensive analysis of the commission
14-20 workforce that meets federal and state guidelines;
14-21 (3) procedures by which a determination can be made
14-22 about the extent of underuse in the commission workforce of all
14-23 persons for whom federal or state guidelines encourage a more
14-24 equitable balance; and
14-25 (4) reasonable methods to appropriately address the
14-26 underuse. <a comprehensive analysis of all the agency's workforce
14-27 by race, sex, ethnic origin, class of position, and salary or wage;>
15-1 <(2) plans for recruitment, evaluation, selection,
15-2 appointment, training, promotion, and other personnel policies;>
15-3 <(3) steps reasonably designed to overcome any
15-4 identified underutilization of minorities and women in the agency's
15-5 workforce; and>
15-6 <(4) objectives and goals, timetables for the
15-7 achievement of the objectives and goals, and assignments of
15-8 responsibility for their achievement.>
15-9 (c) The policy statement <plan> required under Subsection
15-10 (b) of this section must <shall be filed with the governor's office
15-11 within 60 days of the effective date of this Act,> cover an annual
15-12 period, <and> be updated at least annually and reviewed by the
15-13 Commission on Human Rights for compliance with Subsection (b)(1) of
15-14 this section, and<. Progress reports shall> be filed with
15-15 <submitted to> the governor's office <within 30 days of November 1
15-16 and April 1 of each year and shall include the steps the agency has
15-17 taken within the reporting period to comply with these
15-18 requirements>.
15-19 (d) The governor's office shall deliver a biennial report to
15-20 the legislature based on the information received under Subsection
15-21 (c) of this section. The report may be made separately or as a
15-22 part of other biennial reports made to the legislature.
15-23 SECTION 1.12. Section 1.031, Public Utility Regulatory Act
15-24 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
15-25 Regular Session, 1995, is amended to read as follows:
15-26 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
15-27 the commission shall be located in the City of Austin, Texas, and
16-1 shall be open daily during the usual business hours, Saturdays,
16-2 Sundays, and legal holidays excepted. The commission shall hold
16-3 meetings at its office and at such other convenient places in the
16-4 state as shall be expedient and necessary for the proper
16-5 performance of its duties.
16-6 (b) The commission shall develop and implement policies that
16-7 provide the public with a reasonable opportunity to appear before
16-8 the commission and to speak on any issue under the jurisdiction of
16-9 the commission.
16-10 SECTION 1.13. Subsection (a), Section 1.035, Public Utility
16-11 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
16-12 74th Legislature, Regular Session, 1995, is amended to read as
16-13 follows:
16-14 (a) The commission shall prepare annually a complete and
16-15 detailed written report accounting for all funds received and
16-16 disbursed by the commission during the preceding fiscal year. The
16-17 annual report must meet the reporting requirements applicable to
16-18 financial reporting in the General Appropriations Act <publish an
16-19 annual report to the governor, summarizing its proceedings, listing
16-20 its receipts and the sources of its receipts, listing its
16-21 expenditures and the nature of such expenditures, and setting forth
16-22 such other information concerning the operations of the commission
16-23 and the public utility industry as it considers of general
16-24 interest>.
16-25 SECTION 1.14. Section 1.036, Public Utility Regulatory Act
16-26 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
16-27 Regular Session, 1995, is amended to read as follows:
17-1 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
17-2 commission shall prepare information of public <consumer> interest
17-3 describing the <regulatory> functions of the commission and
17-4 <describing> the commission's procedures by which <consumer>
17-5 complaints are filed with and resolved by the commission. The
17-6 commission shall make the information available to the <general>
17-7 public and appropriate state agencies.
17-8 (b) The commission by rule shall establish methods by which
17-9 consumers and service recipients are notified of the name, mailing
17-10 address, and telephone number of the commission for the purpose of
17-11 directing complaints to the commission.
17-12 (c) The commission shall comply with federal and state laws
17-13 related to program and facility accessibility. The commission
17-14 shall also prepare and maintain a written plan that describes how a
17-15 person who does not speak English can be provided reasonable access
17-16 to the commission's programs and services.
17-17 SECTION 1.15. Section 1.051, Public Utility Regulatory Act
17-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
17-19 Regular Session, 1995, is amended to read as follows:
17-20 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
17-21 independent Office of Public Utility Counsel represents the
17-22 interests of residential and small commercial consumers.
17-23 (b) The chief executive of the office <Office of Public
17-24 Utility Counsel> is the public utility counsel, hereinafter
17-25 referred to as counsellor. The counsellor is appointed by the
17-26 governor with the advice and consent of the senate to a two-year
17-27 term that expires on February 1 of the final year of the term.
18-1 Appointment of the counsellor shall be made without regard to the
18-2 race, color, disability, sex, religion, age, or national origin of
18-3 the appointee.
18-4 (c) The counsellor shall be a resident of Texas and admitted
18-5 to the practice of law in this state who has demonstrated a strong
18-6 commitment and involvement in efforts to safeguard the rights of
18-7 the public and possesses the knowledge and experience necessary to
18-8 practice effectively in utility proceedings.
18-9 (d) A person is not eligible for appointment as counsellor
18-10 if the person or the person's spouse:
18-11 (1) is employed by or participates in the management
18-12 of a business entity or other organization regulated by the
18-13 commission or receiving funds from the commission;
18-14 (2) owns or controls, directly or indirectly, more
18-15 than a 10 percent interest or a pecuniary interest with a value
18-16 exceeding $10,000 in:
18-17 (A) a business entity or other organization
18-18 regulated by the commission or receiving funds from the commission
18-19 or the office; or
18-20 (B) any utility competitor, utility supplier, or
18-21 other entity affected by a commission decision in a manner other
18-22 than by the setting of rates for that class of customer;
18-23 (3) uses or receives a substantial amount of tangible
18-24 goods, services, or funds from the commission or the office, other
18-25 than compensation or reimbursement authorized by law for counsellor
18-26 or commission membership, attendance, or expenses; or
18-27 (4) notwithstanding Subdivision (2) of this
19-1 subsection, has an interest in a mutual fund or retirement fund in
19-2 which more than 10 percent of the fund's holdings is in a single
19-3 utility, utility competitor, or utility supplier in this state and
19-4 the person does not disclose this information to the governor,
19-5 senate, or other entity, as appropriate.
19-6 (e) A person may not serve as counsellor if the person is
19-7 required to register as a lobbyist under Chapter 305, Government
19-8 Code, because of the person's activities for compensation related
19-9 to the operation of the commission or the office.
19-10 (f) An officer, employee, or paid consultant of a trade
19-11 association in the field of public utilities may not serve as
19-12 counsellor or be an employee of the office who is exempt from the
19-13 state's position classification plan or is compensated at or above
19-14 the amount prescribed by the General Appropriations Act for step 1,
19-15 salary group 17, of the position classification salary schedule. A
19-16 person who is the spouse of an officer, manager, or paid consultant
19-17 of a trade association in the field of public utilities may not
19-18 serve as counsellor and may not be an office employee who is exempt
19-19 from the state's position classification plan or is compensated at
19-20 or above the amount prescribed by the General Appropriations Act
19-21 for step 1, salary group 17, of the position classification salary
19-22 schedule.
19-23 (g) Notwithstanding any other provision of this Act, a
19-24 person otherwise ineligible because of the application of
19-25 Subsection (d)(2) of this section may be appointed as counsellor
19-26 and may serve as counsellor if the person:
19-27 (1) notifies the attorney general and commission that
20-1 the person is ineligible because of the application of Subsection
20-2 (d)(2) of this section; and
20-3 (2) divests the person or the person's spouse of the
20-4 ownership or control before appointment, or within a reasonable
20-5 time if the person is already serving at the time Subsection (d)(2)
20-6 of this section first applies to the person.
20-7 SECTION 1.16. Subtitle C, Title I, Public Utility Regulatory
20-8 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
20-9 Legislature, Regular Session, 1995, is amended by adding Section
20-10 1.0511 to read as follows:
20-11 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
20-12 removal from office if the counsellor:
20-13 (1) does not have at the time of appointment the
20-14 qualifications required by Section 1.051 of this Act;
20-15 (2) does not maintain during service as counsellor the
20-16 qualifications required by Section 1.051 of this Act;
20-17 (3) violates a prohibition established by Section
20-18 1.051 or 1.0512 of this Act; or
20-19 (4) cannot discharge the counsellor's duties for a
20-20 substantial part of the term for which the counsellor is appointed
20-21 because of illness or disability.
20-22 (b) The validity of an action of the office is not affected
20-23 by the fact that it is taken when a ground for removal of the
20-24 counsellor exists.
20-25 SECTION 1.17. Subtitle C, Title I, Public Utility Regulatory
20-26 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
20-27 Legislature, Regular Session, 1995, is amended by adding Section
21-1 1.0512 to read as follows:
21-2 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
21-3 (a) The counsellor may not within two years, and an employee of
21-4 the office may not within one year after his employment with the
21-5 office has ceased, be employed by a public utility which was in the
21-6 scope of the counsellor's or employee's official responsibility
21-7 while the counsellor or employee was associated with the office.
21-8 (b) During the time the counsellor or an employee of the
21-9 office is associated with the office or at any time after, the
21-10 counsellor or employee may not represent a person, corporation, or
21-11 other business entity before the commission or a court in a matter
21-12 in which the counsellor or employee was personally involved while
21-13 associated with the office or a matter that was within the
21-14 counsellor's or employee's official responsibility while the
21-15 counsellor or employee was associated with the office.
21-16 SECTION 1.18. Subtitle C, Title I, Public Utility Regulatory
21-17 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-18 Legislature, Regular Session, 1995, is amended by adding Section
21-19 1.0513 to read as follows:
21-20 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
21-21 shall prepare annually a complete and detailed written report
21-22 accounting for all funds received and disbursed by the office
21-23 during the preceding fiscal year. The annual report must meet the
21-24 reporting requirements applicable to financial reporting provided
21-25 in the General Appropriations Act.
21-26 (b) The office shall prepare information of public interest
21-27 describing the functions of the office. The office shall make the
22-1 information available to the public and appropriate state agencies.
22-2 (c) The office shall comply with federal and state laws
22-3 related to program and facility accessibility. The office shall
22-4 also prepare and maintain a written plan that describes how a
22-5 person who does not speak English can be provided reasonable access
22-6 to the office's programs and services.
22-7 SECTION 1.19. Section 1.052, Public Utility Regulatory Act
22-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
22-9 Regular Session, 1995, is amended to read as follows:
22-10 Sec. 1.052. INTEREST PROHIBITED. During the period of the
22-11 counsellor's employment and for a period of two years following the
22-12 termination of employment, it shall be unlawful for any person
22-13 employed as counsellor to have a direct or indirect interest in any
22-14 utility company regulated under this Act, to provide legal services
22-15 directly or indirectly to or be employed in any capacity by a
22-16 utility company regulated under this Act, its parent, or its
22-17 subsidiary companies, corporations, or cooperatives or a utility
22-18 competitor, utility supplier, or other entity affected in a manner
22-19 other than by the setting of rates for that class of customer; but
22-20 such person may otherwise engage in the private practice of law
22-21 after the termination of employment as counsellor.
22-22 SECTION 1.20. Section 1.053, Public Utility Regulatory Act
22-23 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
22-24 Regular Session, 1995, is amended to read as follows:
22-25 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
22-26 lawyers, economists, engineers, consultants, statisticians,
22-27 accountants, clerical staff, and other employees as he or she deems
23-1 necessary to carry out the provisions of this section. All
23-2 employees shall receive such compensation as is fixed by the
23-3 legislature from the assessment imposed by Section 1.351 of this
23-4 Act.
23-5 (b) The counsellor or the counsellor's designee shall
23-6 develop an intra-agency career ladder program that addresses
23-7 opportunities for mobility and advancement for employees within the
23-8 office. The program shall require intra-agency postings of all
23-9 positions concurrently with any public posting. The counsellor or
23-10 the counsellor's designee shall develop a system of annual
23-11 performance evaluations that are based on documented employee
23-12 performance. All merit pay for office employees must be based on
23-13 the system established under this subsection.
23-14 (c) The counsellor or the counsellor's designee shall
23-15 prepare and maintain a written policy statement to assure
23-16 implementation of a program of equal employment opportunity under
23-17 which all personnel transactions are made without regard to race,
23-18 color, disability, sex, religion, age, or national origin. The
23-19 policy statement must include:
23-20 (1) personnel policies that comply with Chapter 21,
23-21 Labor Code, including policies relating to recruitment, evaluation,
23-22 selection, appointment, training, and promotion of personnel;
23-23 (2) a comprehensive analysis of the office workforce
23-24 that meets federal and state guidelines;
23-25 (3) procedures by which a determination can be made
23-26 about the extent of underuse in the office workforce of all persons
23-27 for whom federal or state guidelines encourage a more equitable
24-1 balance; and
24-2 (4) reasonable methods to appropriately address the
24-3 underuse.
24-4 (d) A policy statement prepared under Subsection (c) of this
24-5 section must cover an annual period, be updated at least annually
24-6 and reviewed by the Commission on Human Rights for compliance with
24-7 Subsection (c)(1) of this section, and be filed with the governor's
24-8 office. The governor's office shall deliver a biennial report to
24-9 the legislature based on the information received under this
24-10 subsection. The report may be made separately or as a part of
24-11 other biennial reports made to the legislature.
24-12 (e) The office shall provide to its employees, as often as
24-13 necessary, information regarding their qualification for office or
24-14 employment under this Act and their responsibilities under
24-15 applicable laws relating to standards of conduct for state officers
24-16 or employees.
24-17 SECTION 1.21. Section 1.101, Public Utility Regulatory Act
24-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
24-19 Regular Session, 1995, is amended to read as follows:
24-20 Sec. 1.101. GENERAL POWER; RULES; HEARINGS<; AUDITS>.
24-21 (a) The commission has the general power to regulate and supervise
24-22 the business of every public utility within its jurisdiction and to
24-23 do all things, whether specifically designated in this Act or
24-24 implied herein, necessary and convenient to the exercise of this
24-25 power and jurisdiction.
24-26 (b) The commission shall make and enforce rules reasonably
24-27 required in the exercise of its powers and jurisdiction, including
25-1 rules governing practice and procedure before the commission and,
25-2 as applicable, practice and procedure before the utility division
25-3 of the State Office of Administrative Hearings. The commission
25-4 shall adopt rules authorizing an administrative law judge to:
25-5 (1) limit the amount of time that a party may have to
25-6 present its case;
25-7 (2) limit the number of requests for information that
25-8 a party may make in a contested case;
25-9 (3) require a party to a contested case to identify
25-10 contested issues and facts before the hearing begins and to limit
25-11 cross-examination to only those issues and facts and to any new
25-12 issues that may arise as a result of the discovery process; and
25-13 (4) group parties, other than the office, that have
25-14 the same position on an issue to facilitate cross-examination on
25-15 that issue, provided that each party in a group is entitled to
25-16 present that party's witnesses for cross-examination during the
25-17 hearing.
25-18 (c) Rules adopted under Subsection (b) of this section must
25-19 ensure that all parties receive due process.
25-20 (d) The commission may call and hold hearings, administer
25-21 oaths, receive evidence at hearings, issue subpoenas to compel the
25-22 attendance of witnesses and the production of papers and documents,
25-23 and make findings of fact and decisions with respect to
25-24 administering the provisions of this Act or the rules, orders, or
25-25 other actions of the commission.
25-26 (e) Hearings in contested cases not conducted by one or more
25-27 commissioners shall be conducted by the utility division of the
26-1 State Office of Administrative Hearings. The <(d) Notwithstanding
26-2 any other provision of this Act or other law, in proceedings other
26-3 than those involving major rate changes, the> commission may
26-4 delegate to the utility division of the State Office of
26-5 Administrative Hearings <an administrative law judge or hearings
26-6 examiner> the authority to make a final decision and to issue
26-7 findings of fact, conclusions of law, and other necessary orders in
26-8 a proceeding in which there is no contested issue of fact or law.
26-9 The commission by rule shall define the procedures by which it
26-10 delegates final decision-making authority authorized by this
26-11 section. For review purposes the final decision of the
26-12 administrative law judge <or hearings examiner> has the same effect
26-13 as a final decision of the commission unless a commissioner
26-14 requests formal review of the decision.
26-15 SECTION 1.22. Subsection (b), Section 1.102, Public Utility
26-16 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
26-17 74th Legislature, Regular Session, 1995, is amended to read as
26-18 follows:
26-19 (b) The commission may audit each utility under the
26-20 jurisdiction of the commission as frequently as needed<, but shall
26-21 audit each utility at least once every 10 years>. Six months after
26-22 any audit, the utility shall report to the commission on the status
26-23 of the implementation of the recommendations of the audit and shall
26-24 file subsequent reports at such times as the commission deems
26-25 appropriate.
26-26 SECTION 1.23. Subtitle D, Title I, Public Utility Regulatory
26-27 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
27-1 Legislature, Regular Session, 1995, is amended by adding Section
27-2 1.104 to read as follows:
27-3 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
27-4 adopt procedures governing the use of settlements to resolve
27-5 contested cases.
27-6 (b) The rules shall ensure that:
27-7 (1) each party retains the right to:
27-8 (A) have a full hearing before the commission on
27-9 issues that remain in dispute; and
27-10 (B) judicial review of issues that remain in
27-11 dispute;
27-12 (2) an issue of fact raised by a nonsettling party
27-13 cannot be waived by a settlement or stipulation of the other
27-14 parties; and
27-15 (3) the nonsettling party may use the issue of fact
27-16 raised by that party as the basis for judicial review.
27-17 SECTION 1.24. Section 1.202, Public Utility Regulatory Act
27-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
27-19 Regular Session, 1995, is amended to read as follows:
27-20 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
27-21 have the power to:
27-22 (1) require that public utilities report to it such
27-23 information relating to themselves and to transactions between
27-24 themselves and affiliated interests both within and without the
27-25 State of Texas to the extent that those transactions are subject to
27-26 the jurisdiction of the commission <as it may consider useful in
27-27 the administration of this Act>;
28-1 (2) establish forms for all reports;
28-2 (3) determine the time for reports and the frequency
28-3 with which any reports are to be made;
28-4 (4) require that any reports be made under oath;
28-5 (5) require that a copy of any contract or arrangement
28-6 between any public utility and any affiliated interest be filed
28-7 with it. It may require any such contract or arrangement not in
28-8 writing to be reduced to writing and filed with it;
28-9 (6) require that a copy of any report filed with any
28-10 federal agency or any governmental agency or body of any other
28-11 state be filed with it; and
28-12 (7) require that a copy of annual reports showing all
28-13 payments of compensation (other than salary or wages subject to the
28-14 withholding of federal income tax) to residents of Texas, or with
28-15 respect to legal, administrative, or legislative matters in Texas,
28-16 or for representation before the Texas Legislature or any
28-17 governmental agency or body be filed with it.
28-18 (b) <The railroad commission shall have the power to review
28-19 and approve, for purposes of the Outer Continental Shelf Lands Act
28-20 Amendments of 1978 and any other federal authorities, applications
28-21 by gas utilities for the purchase of natural gas from producing
28-22 affiliates.>
28-23 <(c)> On the request of the governing body of any
28-24 municipality, the commission may provide sufficient staff members
28-25 to advise and consult with such municipality on any pending matter.
28-26 SECTION 1.25. Subsection (b), Section 1.251, Public Utility
28-27 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
29-1 74th Legislature, Regular Session, 1995, is amended to read as
29-2 follows:
29-3 (b) All transactions involving the sale of 50 percent or
29-4 more of the stock of a public utility shall also be reported to the
29-5 commission within a reasonable time. On the filing of a report
29-6 with the commission, the commission shall investigate the same with
29-7 or without public hearing to determine whether the action is
29-8 consistent with the public interest. In reaching its
29-9 determination, the commission shall take into consideration the
29-10 reasonable value of the property, facilities, or securities to be
29-11 acquired, disposed of, merged, transferred, or consolidated and
29-12 whether such a transaction will adversely affect the health or
29-13 safety of customers or employees, result in the transfer of jobs of
29-14 Texas citizens to workers domiciled outside the State of Texas, or
29-15 result in the decline of service, that the public utility will
29-16 receive consideration equal to the reasonable value of the assets
29-17 when it sells, leases, or transfers assets, and that the
29-18 transaction is consistent with the public interest.
29-19 SECTION 1.26. Section 1.271, Public Utility Regulatory Act
29-20 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
29-21 Regular Session, 1995, is amended to read as follows:
29-22 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
29-23 commission shall have jurisdiction over affiliated interests having
29-24 transactions with public utilities under the jurisdiction of the
29-25 commission to the extent of access to all accounts and records of
29-26 such affiliated interests relating to such transactions, including
29-27 but in no way limited to accounts and records of joint or general
30-1 expenses, any portion of which may be applicable to such
30-2 transactions. Any accounts or records obtained by the commission
30-3 related to sales of electrical energy at wholesale by an affiliated
30-4 interest to the public utility shall be confidential and not
30-5 subject to disclosure under Chapter 552, Government Code.
30-6 SECTION 1.27. Subtitle I, Title I, Public Utility Regulatory
30-7 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
30-8 Legislature, Regular Session, 1995, is amended by adding Section
30-9 1.3215 to read as follows:
30-10 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
30-11 may impose an administrative penalty against a person regulated
30-12 under this Act who violates this Act or a rule or order adopted
30-13 under this Act.
30-14 (b) The penalty for a violation may be in an amount not to
30-15 exceed $5,000. Each day a violation continues or occurs is a
30-16 separate violation for purposes of imposing a penalty.
30-17 (c) The amount of the penalty shall be based on:
30-18 (1) the seriousness of the violation, including the
30-19 nature, circumstances, extent, and gravity of any prohibited acts,
30-20 and the hazard or potential hazard created to the health, safety,
30-21 or economic welfare of the public;
30-22 (2) the economic harm to property or the environment
30-23 caused by the violation;
30-24 (3) the history of previous violations;
30-25 (4) the amount necessary to deter future violations;
30-26 (5) efforts to correct the violation; and
30-27 (6) any other matter that justice may require.
31-1 (d) If the executive director determines that a violation
31-2 has occurred, the executive director may issue to the commission a
31-3 report that states the facts on which the determination is based
31-4 and the director's recommendation on the imposition of a penalty,
31-5 including a recommendation on the amount of the penalty.
31-6 (e) Within 14 days after the date the report is issued, the
31-7 executive director shall give written notice of the report to the
31-8 person. The notice may be given by certified mail. The notice
31-9 must include a brief summary of the alleged violation and a
31-10 statement of the amount of the recommended penalty and must inform
31-11 the person that the person has a right to a hearing on the
31-12 occurrence of the violation, the amount of the penalty, or both the
31-13 occurrence of the violation and the amount of the penalty. Before
31-14 any penalty may be assessed under this section, the person against
31-15 whom the penalty may be assessed shall be given 30 days after
31-16 receiving from the executive director the notice of the report
31-17 summarizing the alleged violation pursuant to this subsection in
31-18 which to cure the violation and the person must fail to cure the
31-19 alleged violation within the 30-day period. The person against
31-20 whom the penalty may be assessed who claims to have cured the
31-21 alleged violation shall have the burden of proving to the
31-22 commission that the alleged violation was cured and was accidental
31-23 or inadvertent.
31-24 (f) Within 20 days after the date the person receives the
31-25 notice, the person in writing may accept the determination and
31-26 recommended penalty of the executive director or may make a written
31-27 request for a hearing on the occurrence of the violation, the
32-1 amount of the penalty, or both the occurrence of the violation and
32-2 the amount of the penalty.
32-3 (g) If the person accepts the determination and recommended
32-4 penalty of the executive director, the commission by order shall
32-5 approve the determination and impose the recommended penalty.
32-6 (h) If the person requests a hearing or fails to respond
32-7 timely to the notice, the executive director shall set a hearing
32-8 and give notice of the hearing to the person. The hearing shall be
32-9 held by an administrative law judge of the State Office of
32-10 Administrative Hearings. The administrative law judge shall make
32-11 findings of fact and conclusions of law and promptly issue to the
32-12 commission a proposal for a decision about the occurrence of the
32-13 violation and the amount of a proposed penalty. Based on the
32-14 findings of fact, conclusions of law, and proposal for a decision,
32-15 the commission by order may find that a violation has occurred and
32-16 impose a penalty or may find that no violation occurred.
32-17 (i) The notice of the commission's order given to the person
32-18 under Chapter 2001, Government Code, must include a statement of
32-19 the right of the person to judicial review of the order.
32-20 (j) Within 30 days after the date the commission's order is
32-21 final as provided by Section 2001.144, Government Code, the person
32-22 shall:
32-23 (1) pay the amount of the penalty;
32-24 (2) pay the amount of the penalty and file a petition
32-25 for judicial review contesting the occurrence of the violation, the
32-26 amount of the penalty, or both the occurrence of the violation and
32-27 the amount of the penalty; or
33-1 (3) without paying the amount of the penalty, file a
33-2 petition for judicial review contesting the occurrence of the
33-3 violation, the amount of the penalty, or both the occurrence of the
33-4 violation and the amount of the penalty.
33-5 (k) Within the 30-day period, a person who acts under
33-6 Subsection (j)(3) of this section may:
33-7 (1) stay enforcement of the penalty by:
33-8 (A) paying the amount of the penalty to the
33-9 court for placement in an escrow account; or
33-10 (B) giving to the court a supersedeas bond that
33-11 is approved by the court for the amount of the penalty and that is
33-12 effective until all judicial review of the commission's order is
33-13 final; or
33-14 (2) request the court to stay enforcement of the
33-15 penalty by:
33-16 (A) filing with the court a sworn affidavit of
33-17 the person stating that the person is financially unable to pay the
33-18 amount of the penalty and is financially unable to give the
33-19 supersedeas bond; and
33-20 (B) giving a copy of the affidavit to the
33-21 executive director by certified mail.
33-22 (l) The executive director, on receipt of a copy of an
33-23 affidavit under Subsection (k)(2) of this section, may file with
33-24 the court, within five days after the date the copy is received, a
33-25 contest to the affidavit. The court shall hold a hearing on the
33-26 facts alleged in the affidavit as soon as practicable and shall
33-27 stay the enforcement of the penalty on finding that the alleged
34-1 facts are true. The person who files an affidavit has the burden
34-2 of proving that the person is financially unable to pay the amount
34-3 of the penalty and to give a supersedeas bond.
34-4 (m) If the person does not pay the amount of the penalty and
34-5 the enforcement of the penalty is not stayed, the executive
34-6 director may refer the matter to the attorney general for
34-7 collection of the amount of the penalty.
34-8 (n) Judicial review of the order of the commission:
34-9 (1) is instituted by filing a petition as provided by
34-10 Subchapter G, Chapter 2001, Government Code; and
34-11 (2) is under the substantial evidence rule.
34-12 (o) If the court sustains the occurrence of the violation,
34-13 the court may uphold or reduce the amount of the penalty and order
34-14 the person to pay the full or reduced amount of the penalty. If
34-15 the court does not sustain the occurrence of the violation, the
34-16 court shall order that no penalty is owed.
34-17 (p) When the judgment of the court becomes final, the court
34-18 shall proceed under this subsection. If the person paid the amount
34-19 of the penalty and if that amount is reduced or is not upheld by
34-20 the court, the court shall order that the appropriate amount plus
34-21 accrued interest be remitted to the person. The rate of the
34-22 interest is the rate charged on loans to depository institutions by
34-23 the New York Federal Reserve Bank, and the interest shall be paid
34-24 for the period beginning on the date the penalty was paid and
34-25 ending on the date the penalty is remitted. If the person gave a
34-26 supersedeas bond and if the amount of the penalty is not upheld by
34-27 the court, the court shall order the release of the bond. If the
35-1 person gave a supersedeas bond and if the amount of the penalty is
35-2 reduced, the court shall order the release of the bond after the
35-3 person pays the amount.
35-4 (q) A penalty collected under this section shall be remitted
35-5 to the comptroller for deposit in the general revenue fund.
35-6 (r) All proceedings under this section are subject to
35-7 Chapter 2001, Government Code.
35-8 (s) The executive director may delegate to a person that the
35-9 executive director designates any power or duty given the executive
35-10 director by this section.
35-11 SECTION 1.28. Section 1.324, Public Utility Regulatory Act
35-12 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
35-13 Regular Session, 1995, is repealed.
35-14 SECTION 1.29. Subsection (b), Section 1.351, Public Utility
35-15 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
35-16 74th Legislature, Regular Session, 1995, is amended to read as
35-17 follows:
35-18 (b) The legislature may <commission shall, subject to the
35-19 approval of the legislature,> adjust this assessment to provide a
35-20 level of income sufficient to fund the commission and the office of
35-21 public utility counsel.
35-22 SECTION 1.30. Section 1.354, Public Utility Regulatory Act
35-23 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
35-24 Regular Session, 1995, is amended to read as follows:
35-25 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
35-26 FUND. (a) All fees, penalties, and interest paid under the
35-27 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
36-1 shall be collected by the comptroller of public accounts and paid
36-2 into the general revenue fund. <The commission shall notify the
36-3 comptroller of public accounts of any adjustment of the assessment
36-4 imposed in Section 1.351 when made.>
36-5 (b) All money paid to the commission or to the office under
36-6 this Act is subject to Subchapter F, Chapter 404, Government Code.
36-7 SECTION 1.31. Section 1.355, Public Utility Regulatory Act
36-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
36-9 Regular Session, 1995, is amended to read as follows:
36-10 Sec. 1.355. GRANTS OF FEDERAL FUNDS. (a) The commission
36-11 may apply to any appropriate agency or officer of the United States
36-12 to receive and spend federal funds which it may obtain from grants
36-13 or other similar forms of financial assistance. Nothing in this
36-14 section shall inhibit the commission's ability to contract with or
36-15 otherwise receive assistance from any state, local, or other
36-16 authorized source of funds.
36-17 (b) Sections 403.094 and 403.095, Government Code, do not
36-18 apply to the special account established under this section.
36-19 <APPROVAL OF BUDGET. The budget of the commission shall be subject
36-20 to legislative approval as part of the appropriations act.>
36-21 SECTION 1.32. Subtitle J, Title I, Public Utility Regulatory
36-22 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
36-23 Legislature, Regular Session, 1995, is amended by adding Section
36-24 1.357 to read as follows:
36-25 Sec. 1.357. APPROVAL OF BUDGET. The budget of the
36-26 commission shall be subject to legislative approval as part of the
36-27 General Appropriations Act.
37-1 SECTION 1.33. Subsections (a) and (b), Section 1.401, Public
37-2 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
37-3 the 74th Legislature, Regular Session, 1995, are amended to read as
37-4 follows:
37-5 (a) Any affected person may complain to the regulatory
37-6 authority in writing setting forth any act or thing done or omitted
37-7 to be done by any public utility in violation or claimed violation
37-8 of any law which the regulatory authority has jurisdiction to
37-9 administer or of any order, ordinance, rule, or regulation of the
37-10 regulatory authority. The commission shall keep <an> information
37-11 <file> about each complaint filed with the commission <relating to
37-12 a utility>. The commission shall retain the information <file> for
37-13 a reasonable period. The information shall include:
37-14 (1) the date the complaint is received;
37-15 (2) the name of the complainant;
37-16 (3) the subject matter of the complaint;
37-17 (4) a record of all persons contacted in relation to
37-18 the complaint;
37-19 (5) a summary of the results of the review or
37-20 investigation of the complaint; and
37-21 (6) for complaints for which the commission took no
37-22 action, an explanation of the reason the complaint was closed
37-23 without action.
37-24 (b) The commission shall keep a file about each <If a>
37-25 written complaint <is> filed with the commission that the
37-26 commission has authority to resolve. The commission shall provide
37-27 to the person filing the complaint and to the persons or entities
38-1 complained about the commission's policies and procedures
38-2 pertaining to complaint investigation and resolution. The
38-3 <relating to a utility, the> commission, at least <as frequently
38-4 as> quarterly and until final disposition of the complaint, shall
38-5 notify the person filing <parties to> the complaint and each person
38-6 or entity complained about of the status of the complaint unless
38-7 the notice would jeopardize an undercover investigation.
38-8 SECTION 1.34. Subsection (g), Section 3.211, Public Utility
38-9 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
38-10 74th Legislature, Regular Session, 1995, is amended to read as
38-11 follows:
38-12 (g) A rate or tariff set by the commission may not authorize
38-13 a utility to automatically adjust and pass through to its customers
38-14 changes in costs of the utility. This subsection does not limit
38-15 the right of a public utility to pass through municipal fees,
38-16 including any increase in municipal fees. A public utility that
38-17 traditionally passes through municipal fees shall promptly pass
38-18 through any reductions.
38-19 SECTION 1.35. Subchapter C, Chapter 2003, Government Code,
38-20 is amended by adding Section 2003.047 to read as follows:
38-21 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
38-22 establish a utility division to perform the contested case hearings
38-23 for the Public Utility Commission of Texas as prescribed by the
38-24 Public Utility Regulatory Act of 1995 and other applicable law.
38-25 (b) The utility division shall conduct hearings relating to
38-26 contested cases before the commission, other than a hearing
38-27 conducted by one or more commissioners. The commission by rule may
39-1 delegate the responsibility to hear any other matter before the
39-2 commission if consistent with the duties and responsibilities of
39-3 the division.
39-4 (c) Only an administrative law judge in the utility division
39-5 may conduct a hearing on behalf of the commission. An
39-6 administrative law judge in the utility division may conduct
39-7 hearings for other state agencies as time allows. The office may
39-8 transfer an administrative law judge into the division on a
39-9 temporary or permanent basis and may contract with qualified
39-10 individuals to serve as temporary administrative law judges as
39-11 necessary.
39-12 (d) To be eligible to preside at a hearing, an
39-13 administrative law judge, regardless of temporary or permanent
39-14 status, must be licensed to practice law in this state and have not
39-15 less than five years of general experience or three years of
39-16 experience in utility regulatory law.
39-17 (e) At the time the office receives jurisdiction of a
39-18 proceeding, the commission shall provide to the administrative law
39-19 judge a list of issues or areas that must be addressed. In
39-20 addition, the commission may identify and provide to the
39-21 administrative law judge at any time additional issues or areas
39-22 that must be addressed.
39-23 (f) The office and the commission shall jointly adopt rules
39-24 providing for certification to the commission of an issue that
39-25 involves an ultimate finding of compliance with or satisfaction of
39-26 a statutory standard the determination of which is committed to the
39-27 discretion or judgment of the commission by law. The rules must
40-1 address, at a minimum, the issues that are appropriate for
40-2 certification and the procedure to be used in certifying the issue.
40-3 Each agency shall publish the jointly adopted rules.
40-4 (g) Notwithstanding Section 2001.058, the commission may
40-5 change a finding of fact or conclusion of law made by the
40-6 administrative law judge or vacate or modify an order issued by the
40-7 administrative law judge only if the commission:
40-8 (1) determines that the administrative law judge:
40-9 (A) did not properly apply or interpret
40-10 applicable law, commission rules or policies, or prior
40-11 administrative decisions; or
40-12 (B) issued a finding of fact that is not
40-13 supported by a preponderance of the evidence; or
40-14 (2) determines that a commission policy or a prior
40-15 administrative decision on which the administrative law judge
40-16 relied is incorrect or should be changed.
40-17 (h) The commission shall state in writing the specific
40-18 reason and legal basis for its determination under Subsection (g).
40-19 (i) An administrative law judge, on the judge's own motion
40-20 or on motion of a party and after notice and an opportunity for a
40-21 hearing, may impose appropriate sanctions as provided by Subsection
40-22 (j) against a party or its representative for:
40-23 (1) filing a motion or pleading that is groundless and
40-24 brought:
40-25 (A) in bad faith;
40-26 (B) for the purpose of harassment; or
40-27 (C) for any other improper purpose, such as to
41-1 cause unnecessary delay or needless increase in the cost of the
41-2 proceeding;
41-3 (2) abuse of the discovery process in seeking, making,
41-4 or resisting discovery; or
41-5 (3) failure to obey an order of the administrative law
41-6 judge or the commission.
41-7 (j) A sanction imposed under Subsection (i) may include, as
41-8 appropriate and justified, issuance of an order:
41-9 (1) disallowing further discovery of any kind or of a
41-10 particular kind by the offending party;
41-11 (2) charging all or any part of the expenses of
41-12 discovery against the offending party or its representative;
41-13 (3) holding that designated facts be deemed admitted
41-14 for purposes of the proceeding;
41-15 (4) refusing to allow the offending party to support
41-16 or oppose a designated claim or defense or prohibiting the party
41-17 from introducing designated matters in evidence;
41-18 (5) disallowing in whole or in part requests for
41-19 relief by the offending party and excluding evidence in support of
41-20 such requests;
41-21 (6) punishing the offending party or its
41-22 representative for contempt to the same extent as a district court;
41-23 (7) requiring the offending party or its
41-24 representative to pay, at the time ordered by the administrative
41-25 law judge, the reasonable expenses, including attorney's fees,
41-26 incurred by other parties because of the sanctionable behavior; and
41-27 (8) striking pleadings or testimony, or both, in whole
42-1 or in part, or staying further proceedings until the order is
42-2 obeyed.
42-3 (k) Hearings conducted for the commission by the office
42-4 shall be held in hearing rooms provided by the commission. The
42-5 commission shall also provide the utility division access to its
42-6 computer systems, databases, and library resources.
42-7 (l) The office shall charge the commission a fixed annual
42-8 fee rather than an hourly rate for services rendered by the utility
42-9 division to the commission. The office and the commission shall
42-10 negotiate the amount of the fixed fee biennially, subject to the
42-11 approval of the governor, to coincide with the commission's
42-12 legislative appropriations request.
42-13 SECTION 1.36. (a) A task force is established to administer
42-14 the transfer of the hearings division from the Public Utility
42-15 Commission of Texas to the State Office of Administrative Hearings.
42-16 The task force is composed of:
42-17 (1) the governor or the governor's designee;
42-18 (2) the Legislative Budget Board or the board's
42-19 designee;
42-20 (3) the chairman of the Public Utility Commission of
42-21 Texas;
42-22 (4) the public utility counsel; and
42-23 (5) the chief administrative law judge of the State
42-24 Office of Administrative Hearings.
42-25 (b) The governor or the governor's designee is the presiding
42-26 officer of the task force.
42-27 (c) The task force shall:
43-1 (1) determine the personnel, equipment, data,
43-2 facilities, and other items that will be transferred under this Act
43-3 and the schedule for the transfers; and
43-4 (2) mediate and resolve disputes between the
43-5 respective agencies relating to a transfer.
43-6 (d) After the transfers have been completed, the task force
43-7 shall prepare a written report detailing the specifics of the
43-8 transfers and shall submit the report to the governor and the
43-9 legislature.
43-10 (e) In determining a transfer under this Act, the task force
43-11 shall ensure that the transfer does not adversely affect a
43-12 proceeding before the Public Utility Commission of Texas or the
43-13 rights of the parties to the proceeding.
43-14 (f) This section takes effect immediately.
43-15 SECTION 1.37. (a) On September 1, 1995, all personnel,
43-16 including hearings examiners and administrative law judges,
43-17 equipment, data, facilities, and other items of the hearings
43-18 division of the Public Utility Commission of Texas, other than the
43-19 personnel, equipment, data, facilities, and other items of the
43-20 central records office, are transferred to the utility division of
43-21 the State Office of Administrative Hearings. Until September 1,
43-22 1996, an employee transferred to the utility division may be
43-23 terminated or subject to salary reduction only for cause and only
43-24 in relation to poor performance or unacceptable conduct. A
43-25 hearings examiner transferred to the State Office of Administrative
43-26 Hearings becomes an administrative law judge on the date of
43-27 transfer.
44-1 (b) A hearings examiner or administrative law judge
44-2 transferred from the Public Utility Commission of Texas to the
44-3 State Office of Administrative Hearings shall continue to hear any
44-4 case assigned to the person as if the transfer had not occurred.
44-5 (c) The changes in law made by this Act that relate to the
44-6 procedures governing a hearing before the utility division of the
44-7 State Office of Administrative Hearings apply only to a case that
44-8 is filed on or after September 1, 1995. In addition, the
44-9 procedures prescribed by the provisions amended by this Act shall
44-10 continue to be used in a hearing as those provisions existed on
44-11 August 31, 1995. The former law is continued in effect for those
44-12 purposes.
44-13 (d) The Public Utility Commission of Texas is not required
44-14 by this Act or amendments made by this Act to adopt new rules
44-15 governing practice and procedure before the Public Utility
44-16 Commission of Texas or the utility division of the State Office of
44-17 Administrative Hearings. The rules in effect on the effective date
44-18 of this Act remain in effect until amended or repealed as required
44-19 by law. Any rules adopted after the effective date of this Act
44-20 governing practice and procedure before the utility division of the
44-21 State Office of Administrative Hearings must be adopted jointly by
44-22 that office and the commission.
44-23 SECTION 1.38. Section 1.3215, Public Utility Regulatory Act
44-24 of 1995, as added by this Act, applies only to a violation
44-25 committed on or after the effective date of this Act. A violation
44-26 committed before the effective date of this Act is governed by the
44-27 law in effect when the violation occurred, and that law is
45-1 continued in effect for that purpose.
45-2 SECTION 1.39. Section 1.104, Public Utility Regulatory Act
45-3 of 1995, as added by this Act, applies only to a proceeding for
45-4 which a final order has not been issued before the effective date
45-5 of this Act and does not apply to an electric utility merger
45-6 proceeding filed before January 1, 1995, in which a final order has
45-7 not been issued. Except as otherwise provided by this section, on
45-8 or after the effective date of this Act, the Public Utility
45-9 Commission of Texas may not approve a settlement unless the
45-10 settlement has been reached in accordance with rules adopted under
45-11 Section 1.104, Public Utility Regulatory Act of 1995, as added by
45-12 this Act.
45-13 SECTION 1.40. The changes in law made by this Act relating
45-14 to the requirements for membership on the Public Utility Commission
45-15 of Texas, to the requirements for service as public utility
45-16 counsel, or to employment as executive director or general counsel
45-17 of the commission apply only to a person appointed or hired, as
45-18 appropriate, on or after the effective date of this Act and do not
45-19 affect the entitlement of a member serving on the commission on
45-20 August 31, 1995, to continue to hold office for the remainder of
45-21 the term for which the person was appointed or the ability of a
45-22 person serving as public utility counsel, executive director, or
45-23 general counsel on August 31, 1995, to continue to hold that
45-24 position.
45-25 ARTICLE 2
45-26 SECTION 2.01. Subtitle A, Title II, Public Utility
45-27 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
46-1 74th Legislature, Regular Session, 1995, is amended by amending
46-2 Section 2.001 and adding Sections 2.0011 and 2.0012 to read as
46-3 follows:
46-4 Sec. 2.001. LEGISLATIVE POLICY CONCERNING REGULATION OF THE
46-5 ELECTRIC UTILITY INDUSTRY. (a) This title is enacted to protect
46-6 the public interest inherent in the rates and services of public
46-7 utilities. The legislature finds that public utilities are by
46-8 definition monopolies in many of the services they provide and in
46-9 many of the areas they serve, and that therefore the normal forces
46-10 of competition that operate to regulate prices in a free enterprise
46-11 society do not always operate, and that therefore, except as
46-12 otherwise provided for in this Act, utility rates, operations, and
46-13 services are regulated by public agencies. The purpose of this
46-14 title is to establish a comprehensive regulatory system that is
46-15 adequate to the task of regulating public utilities as defined in
46-16 this title, to assure rates, operations, and services that are just
46-17 and reasonable to consumers and to the utilities. The legislature
46-18 finds that the wholesale electric industry through federal
46-19 legislative, judicial, and administrative actions is becoming a
46-20 more competitive industry which does not lend itself to traditional
46-21 electric utility regulatory rules, policies, and principles and
46-22 that, therefore, the public interest requires that new rules,
46-23 policies, and principles be formulated and applied to protect the
46-24 public interest in a more competitive marketplace. The development
46-25 of a competitive wholesale electric market that allows for
46-26 increased participation by both utilities and certain nonutilities
46-27 is in the public interest.
47-1 (b) On application by a public utility, the regulatory
47-2 authority may approve wholesale tariffs or contracts containing
47-3 charges that are less than rates approved by the regulatory
47-4 authority but equal to or greater than the utility's marginal cost.
47-5 The charges must be in accordance with the principles of this Act
47-6 and may not be unreasonably preferential, prejudicial,
47-7 discriminatory, predatory, or anticompetitive.
47-8 (c) The methodology for calculating the marginal cost of the
47-9 electric utility shall consist of energy and capacity components.
47-10 The energy component shall include variable operation and
47-11 maintenance expense and marginal fuel or the energy component of
47-12 purchased power. The capacity component included shall be based on
47-13 the annual economic value of deferring, accelerating, or avoiding
47-14 the next increment of any needed capacity, whether such capacity is
47-15 purchased or built. The commission shall ensure that the
47-16 methodology for determining marginal cost is consistently applied
47-17 among utilities but may recognize in any case the individual load
47-18 and resource requirements of the utility.
47-19 (d) Notwithstanding any other provision of this Act, the
47-20 commission shall ensure that the utility's allocable costs of
47-21 serving customers paying discounted rates under this section or
47-22 Section 2.052 of this Act are not borne by the utility's other
47-23 customers. The mark-ups, if any, approved pursuant to Sections
47-24 2.051 and 2.1511 of this Act are an exceptional form of rate relief
47-25 which may be recovered from ratepayers only on entry of a finding
47-26 by the commission that such relief is necessary to maintain the
47-27 financial integrity of the utility.
48-1 Sec. 2.0011. DEFINITIONS. In this title:
48-2 (1) "Public<, "public> utility" or "utility" means any
48-3 person, corporation, river authority, cooperative corporation, or
48-4 any combination thereof, other than a municipal corporation, or
48-5 their lessees, trustees, and receivers, now or hereafter owning or
48-6 operating for compensation in this state equipment or facilities
48-7 for producing, generating, transmitting, distributing, selling, or
48-8 furnishing electricity in this state (hereinafter "electric
48-9 utility"); provided, however, that this definition may not be
48-10 construed to apply to or include a qualifying facility <small power
48-11 producer or qualifying cogenerator, as defined in Sections 3(17)(D)
48-12 and 3(18)(C) of the Federal Power Act, as amended (16 U.S.C.
48-13 Sections 796(17)(D) and 796(18)(C))>. The term does not include an
48-14 exempt wholesale generator, a power marketer, or a corporation as
48-15 prescribed by Section 2.0012 of this Act, or any person or
48-16 corporation not otherwise a public utility that:
48-17 (A) <(1)> furnishes the services or commodity
48-18 described in this section only to itself, its employees, or its
48-19 tenants as an incident of such employee service or tenancy, when
48-20 such service or commodity is not resold to or used by others;
48-21 (B) <(2)> owns or operates in this state
48-22 equipment or facilities for producing, generating, transmitting,
48-23 distributing, selling, or furnishing electric energy to an electric
48-24 utility, if the equipment or facilities are used primarily for the
48-25 production and generation of electric energy for consumption by the
48-26 person or corporation; or
48-27 (C) <(3)> owns or operates in this state a
49-1 recreational vehicle park that provides metered electric service in
49-2 accordance with Article 1446d-2, Revised Statutes, provided that a
49-3 recreational vehicle park owner is considered a public utility if
49-4 the owner fails to comply with Article 1446d-2, Revised Statutes,
49-5 with regard to the metered sale of electricity at the recreational
49-6 vehicle park.
49-7 (2) "Exempt wholesale generator" means a person that
49-8 is engaged directly, or indirectly through one or more affiliates,
49-9 exclusively in the business of owning, operating, or both owning
49-10 and operating all or part of one or more facilities for the
49-11 generation of electric energy and selling electric energy at
49-12 wholesale and that:
49-13 (A) does not own facilities for the transmission
49-14 of electricity, other than essential interconnecting transmission
49-15 facilities necessary to effect a sale of electric energy at
49-16 wholesale; and
49-17 (B) has applied to the Federal Energy Regulatory
49-18 Commission for a determination under Section 32, Public Utility
49-19 Holding Company Act (15 U.S.C. Section 79z-5a), or has registered
49-20 as an exempt wholesale generator as required by this Act.
49-21 (3) "Power marketer" means a person that:
49-22 (A) becomes owner of electric energy in this
49-23 state for the purpose of buying and selling the electric energy at
49-24 wholesale;
49-25 (B) does not own generation, transmission, or
49-26 distribution facilities in this state;
49-27 (C) does not have a certificated service area;
50-1 and
50-2 (D) has been granted authority by the Federal
50-3 Energy Regulatory Commission to sell electric energy at
50-4 market-based rates or has registered as a power marketer under this
50-5 Act.
50-6 (4) "Qualifying cogenerator" and "qualifying small
50-7 power producer" have the meanings assigned by Sections 3(18)(C) and
50-8 3(17)(D), Federal Power Act (16 U.S.C. Sections 796(18)(C) and
50-9 796(17)(D)).
50-10 (5) "Qualifying facility" means a qualifying
50-11 cogenerator or qualifying small power producer.
50-12 (6) "Rate" means and includes every compensation,
50-13 tariff, charge, fare, toll, rental, and classification, or any of
50-14 them demanded, observed, charged, or collected whether directly or
50-15 indirectly by any public utility for any service, product, or
50-16 commodity described in the definition of "utility" in this section
50-17 or Section 3.001 of this Act and any rules, regulations, practices,
50-18 or contracts affecting any such compensation, tariff, charge, fare,
50-19 toll, rental, or classification that must be approved by a
50-20 regulatory authority.
50-21 (7) "Transmission service" includes construction or
50-22 enlargement of facilities, transmission over distribution
50-23 facilities, control area services, scheduling resources, regulation
50-24 service, providing operating reserves, reactive power support,
50-25 voltage control, and any other associated electrical services
50-26 deemed appropriate by the commission.
50-27 Sec. 2.0012. CERTAIN RIVER AUTHORITIES.
51-1 (a) Notwithstanding any other provision of this Act to the
51-2 contrary, the commission shall not have the authority to regulate
51-3 directly or indirectly the revenue requirements, rates, fuel costs,
51-4 fuel charges, or fuel acquisitions that are related to the
51-5 generation and sale of electricity at wholesale and not to ultimate
51-6 consumers by a river authority operating one or more steam
51-7 generating plants. Subject to the provisions of this section, the
51-8 term "public utility," "retail public utility," or "utility" shall
51-9 not include a corporation authorized by Chapter 245, Acts of the
51-10 67th Legislature, Regular Session, 1981 (Article 717p, Vernon's
51-11 Texas Civil Statutes), and acting on behalf of the river authority
51-12 to the extent that the corporation sells electricity exclusively at
51-13 wholesale and not to ultimate consumers.
51-14 (b) This section shall constitute full authority for any
51-15 river authority operating one or more steam generating plants to
51-16 acquire, finance, construct, rebuild, repower, and use new and
51-17 existing power plants, equipment, transmission lines, and other
51-18 assets, for the sale of electricity exclusively at wholesale and
51-19 not at retail to any purchaser within San Saba, Llano, Burnet,
51-20 Travis, Bastrop, Blanco, Colorado, and Fayette counties and any
51-21 purchaser within the area served by the river authority on
51-22 January 1, 1975.
51-23 (c) This section shall constitute full authority for a
51-24 corporation described in Subsection (a) of this section to acquire,
51-25 finance, construct, rebuild, repower, operate, or sell facilities
51-26 directly related to the generation of electricity and sell the
51-27 output of such facilities, to the extent that such corporation
52-1 sells such electricity to any purchaser at any location in this
52-2 state exclusively at wholesale, and not to ultimate consumers,
52-3 notwithstanding any provisions to the contrary in the river
52-4 authority's enabling legislation or Chapter 245, Acts of the 67th
52-5 Legislature, Regular Session, 1981 (Article 717p, Vernon's Texas
52-6 Civil Statutes), provided that nothing in this section shall
52-7 preclude the corporation from purchasing transmission and related
52-8 services from such river authority. Except as provided in this
52-9 section, the development, financing, ownership, and operation of
52-10 such facilities by such corporation shall be subject to the
52-11 provisions of all applicable laws other than this Act, and the
52-12 property, gross receipts, and income of such corporation acting on
52-13 behalf of a river authority pursuant to this section shall be
52-14 subject to, and such corporation shall pay, taxes and assessments
52-15 of the federal government or of this state or of any municipal
52-16 corporation, county, or other political subdivision or taxing
52-17 district of this state on the same basis as an exempt wholesale
52-18 generator. No proceeds from the sale of bonds or other
52-19 obligations, the interest on which is exempt from taxation, issued
52-20 by the corporation or river authority, other than as may be
52-21 available to investor-owned utilities or exempt wholesale
52-22 generators, shall be used, or shall have been used, to finance the
52-23 construction or acquisition of or rebuilding or repowering of any
52-24 facilities for the generation of electricity by the corporation.
52-25 (d) This section shall not authorize the river authority to
52-26 acquire, install, construct, make additions to, or operate steam
52-27 generating plants whose aggregate capacity is greater than 5,000
53-1 megawatts to serve purchasers within the area served by the river
53-2 authority on January 1, 1975. In addition, any river authority
53-3 subject to this section and any corporation acting on behalf of
53-4 such river authority may provide retail service only to those
53-5 retail customers served by the river authority or corporation
53-6 acting on behalf of the river authority on September 1, 1995.
53-7 (e) Nothing in this section shall otherwise limit the powers
53-8 granted a river authority in its enabling legislation and other
53-9 applicable law.
53-10 SECTION 2.02. Subtitle A, Title II, Public Utility
53-11 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
53-12 74th Legislature, Regular Session, 1995, is amended by adding
53-13 Section 2.003 to read as follows:
53-14 Sec. 2.003. SCOPE OF COMPETITION. Before January 15 of each
53-15 odd-numbered year, the commission shall report to the legislature
53-16 on the scope of competition in electric markets and the impact of
53-17 competition and industry restructuring on customers in both
53-18 competitive and noncompetitive markets. The report shall include
53-19 an assessment of the impact of competition on the rates and
53-20 availability of electric services for residential and small
53-21 commercial customers and a summary of commission actions over the
53-22 preceding two years that reflect changes in the scope of
53-23 competition in regulated electric markets. The report shall also
53-24 include recommendations to the legislature for further legislation
53-25 that the commission finds appropriate to promote the public
53-26 interest in the context of a partially competitive electric market.
53-27 SECTION 2.03. Section 2.051, Public Utility Regulatory Act
54-1 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
54-2 Regular Session, 1995, is amended to read as follows:
54-3 Sec. 2.051. INTEGRATED RESOURCE PLANNING. (a) The
54-4 commission by rule shall develop an integrated resource planning
54-5 process to provide reliable energy service at the lowest reasonable
54-6 system cost. In determining the lowest reasonable system cost of
54-7 an electric utility's plan, the commission shall consider in
54-8 addition to direct costs the following:
54-9 (1) the effect on the rates and bills of various types
54-10 of customers;
54-11 (2) minimization of the risks of future fuel costs and
54-12 regulations;
54-13 (3) the appropriateness and reliability of the mix of
54-14 resources; an appropriate and reliable mix of resources may include
54-15 a portfolio of cost-effective sources of power including but not
54-16 limited to resources that are fueled and non-fueled, such as
54-17 renewable resources and conservation measures and a mixture of
54-18 long-term and short-term contracts; and
54-19 (4) the costs of compliance with the environmental
54-20 protection requirements of all applicable state and federal laws,
54-21 rules, and orders.
54-22 (b) The commission by rule shall adopt and periodically
54-23 update a statewide integrated resource plan that includes the
54-24 commission's long-term resource planning goals. The commission
54-25 shall send a report on the plan to the governor when it adopts or
54-26 revises the plan and notify each public utility of the approval of
54-27 the statewide plan. The commission shall make the report available
55-1 to the public.
55-2 (c) The report on the statewide plan shall include:
55-3 (1) historical data for electric consumption statewide
55-4 and by utility;
55-5 (2) historical data for electric generation by utility
55-6 and by type of capacity, including alternative energy sources;
55-7 (3) an inventory of generation capacity statewide and
55-8 by utility;
55-9 (4) quantitative data on demand-side management
55-10 programs to the extent the commission determines necessary;
55-11 (5) each generating utility's forecast without
55-12 adjustment;
55-13 (6) the commission's long-term resource planning goals
55-14 included in the plan;
55-15 (7) a projection of the need for electric services;
55-16 (8) a description of the approved individual
55-17 integrated resource plans of public utilities; and
55-18 (9) an assessment of transmission planning being
55-19 performed by utilities within this state.
55-20 (d) In prescribing the requirements under this section,
55-21 including reporting requirements, the commission shall consider and
55-22 recognize the differences in capabilities of small and large
55-23 utilities.
55-24 (e) Generating public utilities as well as nongenerating
55-25 public utilities planning to construct generating resources shall
55-26 submit to the commission a preliminary integrated resource plan.
55-27 Preliminary integrated resource plans shall be submitted every
56-1 three years and cover a 10-year period. The commission by rule:
56-2 (1) shall:
56-3 (A) prescribe a staggered schedule for the
56-4 submission of plans by utilities;
56-5 (B) prescribe the form and manner in which a
56-6 plan must be submitted;
56-7 (C) adopt filing requirements and schedules; and
56-8 (D) prescribe the methods by which a utility may
56-9 recover supply-side and demand-side costs; and
56-10 (2) may:
56-11 (A) define the scope and nature of public
56-12 participation in the development of the plan; and
56-13 (B) establish the general guidelines to be used
56-14 by utilities in evaluating and selecting or rejecting resources,
56-15 including procedures governing the solicitation process.
56-16 (f) A preliminary plan submitted under this section must
56-17 include:
56-18 (1) the utility's forecast of future demands;
56-19 (2) an estimate of the energy savings and demand
56-20 reduction the utility can achieve during the 10-year period by use
56-21 of demand-side management resources and the range of possible costs
56-22 for those resources;
56-23 (3) if additional supply-side resources are needed to
56-24 meet future demand, an estimate of:
56-25 (A) the amount and operational characteristics
56-26 of the additional capacity needed;
56-27 (B) the types of viable supply-side resources
57-1 for meeting that need; and
57-2 (C) the range of probable costs of those
57-3 resources;
57-4 (4) if necessary, proposed requests for proposals for
57-5 demand-side or supply-side resources, or both;
57-6 (5) the specific criteria the utility will use to
57-7 evaluate and select or reject those resources, which criteria may
57-8 deviate from the general guidelines on a showing of good cause;
57-9 (6) the methods by which the utility intends to
57-10 monitor those resources after selection;
57-11 (7) the method by which the utility intends to
57-12 allocate costs;
57-13 (8) a description of how each utility will achieve
57-14 equity among customer classes and provide demand-side programs to
57-15 each customer class including tenants and low-income ratepayers;
57-16 (9) any proposed incentive factors; and
57-17 (10) any other information the commission requires.
57-18 (g) Every three years, a municipally owned utility shall
57-19 submit to the commission a report containing all of the information
57-20 required in a preliminary integrated resource plan under Subsection
57-21 (f) of this section, but shall not otherwise be subject to the
57-22 requirements of this section.
57-23 (h) If the utility's preliminary plan does not include a
57-24 proposed solicitation under Subsection (f)(4) of this section, the
57-25 plan shall be filed with the commission so that the commission may
57-26 compile the report required in Subsection (c) of this section.
57-27 Only if the utility's preliminary plan includes a proposed
58-1 solicitation under Subsection (f)(4) of this section may the
58-2 commission, on its own motion or on the motion of the utility or of
58-3 an affected person, convene a public hearing on the adequacy and
58-4 merits of the preliminary plan. At the hearing, any interested
58-5 person may intervene, present evidence, and cross-examine witnesses
58-6 regarding the contents and adequacy of the preliminary plan.
58-7 Discovery is limited to an issue relating to the development of the
58-8 preliminary plan, a fact issue included in the preliminary plan,
58-9 and other issues the commission is required to decide relating to
58-10 the preliminary plan. A commission hearing is not required for a
58-11 preliminary plan filed by a river authority or generating electric
58-12 cooperative that does not intend to build a new generating plant or
58-13 for a preliminary plan filed by a municipally owned public utility.
58-14 (i) After the hearing, the commission shall determine:
58-15 (1) whether the utility's preliminary plan is based on
58-16 substantially accurate data and an adequate method of forecasting;
58-17 (2) whether the utility's preliminary plan identifies
58-18 and takes into account any present and projected reductions in the
58-19 demand for energy that may result from cost-effective measures to
58-20 improve conservation and energy efficiency in various customer
58-21 classes of the area being served;
58-22 (3) if additional supply-side resources are needed to
58-23 meet future demand, whether the utility's preliminary plan
58-24 adequately demonstrates:
58-25 (A) the amount and operational characteristics
58-26 of the additional capacity needed;
58-27 (B) the types of viable supply-side resources
59-1 for meeting that need; and
59-2 (C) the range of probable costs of those
59-3 resources;
59-4 (4) whether the utility's preliminary plan
59-5 demonstrates the opportunities for appropriate persons to
59-6 participate in the development of the preliminary plan;
59-7 (5) whether the specific criteria the utility will use
59-8 to evaluate and select or reject resources are reasonable and
59-9 consistent with the guidelines of the integrated resource planning
59-10 process;
59-11 (6) whether the cost allocation method proposed by the
59-12 utility is reasonable;
59-13 (7) how the utility will achieve equity among customer
59-14 classes and provide demand-side programs to each customer class,
59-15 including tenants and low-income ratepayers; and
59-16 (8) whether any incentive factors are appropriate and,
59-17 if so, the levels of such incentive factors.
59-18 (j) Not later than the 180th day after the date the utility
59-19 files the preliminary plan, the commission shall issue an interim
59-20 order on the preliminary plan. The commission shall approve the
59-21 preliminary plan, modify the preliminary plan, or, if necessary,
59-22 remand the preliminary plan for additional proceedings. The
59-23 180-day period may be extended for a period not to exceed 30 days
59-24 for extenuating circumstances encountered in the development and
59-25 processing of an initial plan, if the extenuating circumstances are
59-26 fully explained and agreed on by the commissioners.
59-27 (k) On approval of the preliminary plan, the utility shall
60-1 conduct solicitations for demand-side and supply-side resources, as
60-2 prescribed in the preliminary plan. In addition to soliciting
60-3 resources from unaffiliated third parties, the utility may:
60-4 (1) prepare and submit a bid of a new utility
60-5 demand-side management program as prescribed by Subsection (m) of
60-6 this section;
60-7 (2) receive bids from one or more affiliates; and
60-8 (3) request a certificate of convenience and necessity
60-9 for a new rate-based generating plant.
60-10 (l) Each bidder, including the utility and its affiliates,
60-11 shall submit two copies of its bid to the commission. The
60-12 commission shall ensure that the utility has access to all bids at
60-13 the same time. The commission shall keep a copy of each bid
60-14 submitted by the utility or an affiliate to determine whether the
60-15 utility complied with the criteria established for conduct of the
60-16 solicitation. A bid submitted under this subsection or retained
60-17 under this subsection is confidential and is not subject to
60-18 disclosure under Chapter 552, Government Code.
60-19 (m) If a utility wants to use a proposed demand-side
60-20 management program to meet a need identified in the preliminary
60-21 plan, the utility must prepare a bid reflecting that resource. A
60-22 bid prepared by the utility under this subsection must comply with
60-23 the solicitation, evaluation, selection, and rejection criteria
60-24 specified in the preliminary plan. The utility may not give
60-25 preferential treatment or consideration to a bid prepared under
60-26 this subsection.
60-27 (n) The utility shall evaluate each bid submitted, including
61-1 an affiliate bid, in accordance with the criteria specified in the
61-2 preliminary plan and shall negotiate necessary contracts. The
61-3 utility is not required to accept a bid and may reject any or all
61-4 bids in accordance with the selection and rejection criteria
61-5 specified in the preliminary plan. If the results of the
61-6 solicitations and contract negotiations do not meet the supply-side
61-7 needs identified in the preliminary plan, the utility may apply for
61-8 a certificate of convenience and necessity for a utility-owned
61-9 resource addition notwithstanding the fact a solicitation was
61-10 conducted and the addition was not included in the approved
61-11 preliminary plan.
61-12 (o) After conducting the solicitations and negotiating the
61-13 contracts, the utility shall submit to the commission a proposed
61-14 final integrated resource plan. The proposed final plan must
61-15 include:
61-16 (1) the results of the solicitations;
61-17 (2) the contracts for resources;
61-18 (3) the terms and conditions under which the utility
61-19 will provide resources to meet a need identified in the preliminary
61-20 plan, if the utility accepts a bid submitted under Subsection (m)
61-21 of this section; and
61-22 (4) an application for a certificate of convenience
61-23 and necessity, if necessary.
61-24 (p) The commission shall, on request by any affected person
61-25 and within 90 days after the date a utility files its final
61-26 integrated resource plan under this section, convene a public
61-27 hearing on the reasonableness and cost-effectiveness of the
62-1 proposed final plan. At the hearing, any interested person may
62-2 intervene, present evidence, and cross-examine witnesses regarding
62-3 the reasonableness and cost-effectiveness of the proposed final
62-4 plan. Parties will not be allowed to litigate or conduct discovery
62-5 on issues that were litigated or could have been litigated in
62-6 connection with the filing of the utility's preliminary plan. To
62-7 the extent permitted by federal law, the commission may issue a
62-8 written order for access to the books, accounts, memoranda,
62-9 contracts, or records of any exempt wholesale generator or power
62-10 marketer selling energy at wholesale to a utility, if the
62-11 examination is required for the effective discharge of the
62-12 commission's regulatory responsibilities under this Act, except
62-13 that if the commission issues such an order, the books, accounts,
62-14 memoranda, contracts, and records obtained by the commission are
62-15 confidential and not subject to disclosure under Chapter 552,
62-16 Government Code.
62-17 (q) After the hearing, the commission shall determine
62-18 whether:
62-19 (1) the utility's proposed final plan was developed in
62-20 accordance with the preliminary plan and commission rules;
62-21 (2) the resource solicitations, evaluations,
62-22 selections, and rejections were conducted in accordance with the
62-23 criteria included in the preliminary plan;
62-24 (3) the utility's proposed final plan is
62-25 cost-effective;
62-26 (4) the final plan is equitable among customer classes
62-27 and provides demand-side programs to each customer class, including
63-1 tenants and low-income ratepayers;
63-2 (5) the commission should certify the contracts and
63-3 any utility bid submitted under Subsection (m) of this section that
63-4 resulted from the solicitations; and
63-5 (6) the commission should grant a requested
63-6 certificate of convenience and necessity for a utility-owned
63-7 resource addition.
63-8 (r)(1) In determining whether to certify a supply-side or
63-9 demand-side contract that results from the solicitations, the
63-10 commission shall consider the reliability, financial condition, and
63-11 safety of that resource contract and whether the solicitation,
63-12 evaluation, and selection of that resource contract was conducted
63-13 in accordance with the criteria included in the preliminary plan.
63-14 The commission shall not certify contracts for new purchases of
63-15 power by a utility unless the utility has determined, after giving
63-16 consideration to consistently applied regional or national
63-17 reliability standards, guidelines, or criteria, that the contract
63-18 would not unreasonably impair the continued reliability of electric
63-19 systems affected by the purchase, and the purchase can reasonably
63-20 be expected to produce benefits to customers of the purchasing
63-21 utility. Commission certification of a resource contract does not
63-22 negate the necessity of the resource to comply with all applicable
63-23 environmental and siting regulations. In addition, if the contract
63-24 is with a utility affiliate, the commission shall determine whether
63-25 the utility treated and considered the affiliate's bid in the same
63-26 manner it treated and considered other bids intended to meet the
63-27 same resource needs and shall further determine, in connection with
64-1 such purchase, whether:
64-2 (A) the transaction will benefit consumers;
64-3 (B) the transaction violates any state law,
64-4 including least-cost planning;
64-5 (C) the transaction provides the utility
64-6 affiliate any unfair competitive advantage by virtue of its
64-7 affiliation or association with the utility;
64-8 (D) the transaction is in the public interest;
64-9 and
64-10 (E) the commission has sufficient regulatory
64-11 authority, resources, and access to the books and records of the
64-12 utility and its affiliate to make these determinations.
64-13 (2) In setting a public utility's rates for a period
64-14 during which a certified contract is effective, the regulatory
64-15 authority shall consider payments made under the contract to be
64-16 reasonable and necessary operating expenses of the public utility.
64-17 The regulatory authority may provide for monthly recovery of the
64-18 approved costs of the contract as those costs are incurred,
64-19 including the allowed mark-up determined by the commission.
64-20 (s) In determining whether to grant a requested certificate
64-21 of convenience and necessity, the commission shall consider the
64-22 effect of the granting of a certificate on the recipient of the
64-23 certificate and on any public utility of the same kind already
64-24 serving the proximate area. The commission shall also consider
64-25 other factors such as community values, recreational and park
64-26 areas, historical and aesthetic values, environmental integrity,
64-27 and the probable improvement of service or lowering of cost to
65-1 consumers in that area if the certificate is granted. The
65-2 commission shall grant the certificate as part of the approval of
65-3 the final plan if it finds that:
65-4 (1) the proposed addition is necessary under the final
65-5 plan;
65-6 (2) the proposed addition is the best and most
65-7 economical choice of technology for that service area; and
65-8 (3) cost-effective conservation and other
65-9 cost-effective alternative energy sources cannot reasonably meet
65-10 the need.
65-11 (t) Not later than the 180th day after the date the utility
65-12 files the proposed final plan, the commission shall issue a final
65-13 order on the plan. The commission shall approve the proposed final
65-14 plan, modify the proposed final plan, or, if necessary, remand the
65-15 proposed final plan for additional proceedings.
65-16 (u) The commission shall adopt rules allowing a utility to
65-17 add, consistent with the utility's last approved integrated
65-18 resource planning goals, new or incremental resources outside the
65-19 solicitation process, including resources listed in Subsection (x)
65-20 of this section.
65-21 (v) In addition to its other authority and responsibility
65-22 under this section, the commission shall establish rules and
65-23 guidelines that will promote the development of renewable energy
65-24 technologies consistent with the guidelines of the integrated
65-25 resource planning process.
65-26 (w) In carrying out its duties related to the integrated
65-27 resource planning process and in setting rates for utilities which
66-1 are not required to file an integrated resource plan, the
66-2 commission may:
66-3 (1) allow timely recovery of reasonable costs of
66-4 conservation, load management, and purchased power, notwithstanding
66-5 Section 2.212(g)(1) of this Act;
66-6 (2) authorize additional incentives for conservation,
66-7 load management, purchased power, and renewable resources; and
66-8 (3) review the state's transmission system to
66-9 determine and make recommendations to public utilities on the need
66-10 to build new power lines, upgrade power lines, and make other
66-11 improvements and additions as necessary.
66-12 (x) Consistent with the utility's last approved integrated
66-13 resource planning goals, if any, the utility, including a
66-14 nongenerating utility, may add new or incremental resources outside
66-15 the solicitation process such as:
66-16 (1) contract renegotiation for existing capacity from
66-17 an electric cooperative or nonaffiliated power generating
66-18 facilities;
66-19 (2) electric cooperative or nonaffiliated demand-side
66-20 management programs or renewable resources;
66-21 (3) capacity purchases with terms of two years or less
66-22 from an electric cooperative or nonaffiliated power suppliers or
66-23 capacity purchases necessary to satisfy unanticipated emergency
66-24 conditions;
66-25 (4) the exercise of an option in a purchased power
66-26 contract with an electric cooperative or nonaffiliated supplier;
66-27 and
67-1 (5) renewable distributed resources, located at or
67-2 near the point of consumption, if they are less costly than
67-3 transmission extensions or upgrades.
67-4 (y) The addition of new or incremental resources by a
67-5 utility under Subsection (x) of this section does not require an
67-6 amendment to the utility's integrated resource plan.
67-7 (z)(1) If a qualifying facility submits a bid under this
67-8 section, regardless of whether that bid is accepted or rejected,
67-9 and only with respect to the capacity need for which the bid has
67-10 been submitted, the submission of the bid:
67-11 (A) constitutes a waiver by the qualifying
67-12 facility of any rights it may otherwise have under law to sell
67-13 capacity to the utility;
67-14 (B) represents the qualifying facility's
67-15 agreement to negotiate a rate for purchase of capacity and terms
67-16 and conditions relating to any purchase of capacity by the utility
67-17 that differ from the rate or terms and conditions that would
67-18 otherwise be required by 18 CFR Chapter I, Subchapter K, Part 292,
67-19 Subpart C; and
67-20 (C) constitutes a waiver by the qualifying
67-21 facility of its right to the rate, terms, or conditions for
67-22 purchases of capacity by the utility that might otherwise be
67-23 required by that subpart.
67-24 (2) For the purpose of determining a utility's avoided
67-25 capacity costs under 18 CFR Chapter I, Subchapter K, Part 292,
67-26 Subpart C, on submitting a preliminary integrated resource plan to
67-27 the commission under this section, the utility's avoided capacity
68-1 costs shall be deemed to be $0 and shall remain $0, with respect to
68-2 any capacity needs shown in such preliminary integrated resource
68-3 plan or final integrated resource plan that are to be satisfied by
68-4 resources approved in the utility's final integrated resource plan.
68-5 (3) Nothing in this subsection shall affect the
68-6 validity of any contract entered into between a qualifying facility
68-7 and an electric utility for any purchase.
68-8 (aa) In this section, "utility" includes a river authority
68-9 subject to Section 2.0012 of this Act with respect to the area
68-10 served by the river authority on January 1, 1975.
68-11 (bb) Nongenerating utilities not planning to construct
68-12 generating resources are not required to submit an integrated
68-13 resource plan to the commission. If such a utility seeks to
68-14 purchase more than 25 percent of its peak demand or more than 70
68-15 megawatts from a wholesale power supplier other than its existing
68-16 power supplier, the utility shall conduct a solicitation for
68-17 resources. However, no solicitation is required for purchases from
68-18 an existing power supplier, and new or incremental resources may be
68-19 added outside the solicitation process as provided in Subsection
68-20 (x) of this section. If requested by such a utility, the
68-21 commission may review the reasonableness of any contract for
68-22 resources resulting from the solicitation. On a finding by the
68-23 commission that such a contract is reasonable, the commission shall
68-24 certify the contract. The commission shall make its determination
68-25 within 90 days after the date the proposed contract is submitted.
68-26 Nothing in this subsection is intended to alter or amend existing
68-27 wholesale power supply contracts.
69-1 (cc) To the extent that the commission authorizes utilities
69-2 to recover costs of demand-side management programs, conservation,
69-3 load management, or purchased power through various cost recovery
69-4 factors, the commission shall make a final reconciliation of the
69-5 costs recovered through those cost recovery factors. The
69-6 commission shall adopt rules regarding when the reconciliations
69-7 will occur for each of the cost recovery factors, what type of
69-8 information utilities need to file in support of the
69-9 reconciliation, and other matters necessary to perform the
69-10 reconciliation. The reconciliation shall (1) review the
69-11 reasonableness of the utility's administration of the contracts and
69-12 programs whose costs are being reconciled and (2) reconcile the
69-13 revenue collected under each cost recovery factor and the costs
69-14 that the utility incurred on purchased power, demand-side
69-15 management, conservation, or load management during the
69-16 reconciliation period.
69-17 (dd) To provide for the orderly transition to an integrated
69-18 resource planning process and to avoid delays in the construction
69-19 of resources necessary to provide electric service, an integrated
69-20 resource plan shall not be required prior to the issuance of a
69-21 certificate of convenience and necessity for the construction of
69-22 generating facilities if:
69-23 (1) the commission has approved the utility's notice
69-24 of intent prior to the effective date of this section;
69-25 (2) the utility has conducted a solicitation for
69-26 resources to meet the need identified in the utility's notice of
69-27 intent in accordance with commission rules then in effect; and
70-1 (3) the utility has submitted to the commission the
70-2 results of the solicitation and an application for certification of
70-3 facilities to meet the need identified in the utility's notice of
70-4 intent. A certificate of convenience and necessity shall be
70-5 granted by the commission if the facilities are needed to meet
70-6 future demand, the facilities are the best and most economical
70-7 choice of technology for the service area, and cost-effective
70-8 conservation and cost-effective alternative energy sources cannot
70-9 reasonably meet the need.
70-10 (ee) To the extent that the public utility is required by
70-11 the commission to reimburse a municipality for expenses the
70-12 municipality incurred for its participation in a proceeding under
70-13 this section, the commission shall, as part of its determination
70-14 approving the public utility's integrated resource plan, authorize
70-15 a surcharge to be included in the public utility's rates to recover
70-16 the municipality's expenses for participating in the integrated
70-17 resource plan proceeding before the public utility's next
70-18 preliminary integrated resource plan is filed. The reasonable
70-19 expenses of the public utility for planning, preparation, and
70-20 participation in such a proceeding may only be recovered after
70-21 commission review conducted in accordance with the provisions of
70-22 either Section 2.211 or 2.212 of this Act. <ELECTRICAL FORECAST.
70-23 (a) The commission shall develop a long-term statewide electrical
70-24 energy forecast which shall be sent to the governor biennially.
70-25 The forecast will include an assessment of how alternative energy
70-26 sources, conservation, and load management will meet the state's
70-27 electricity needs.>
71-1 <(b) Every generating electric utility in the state shall
71-2 prepare and transmit to the commission every two years a report
71-3 specifying at least a 10-year forecast for assessments of load and
71-4 resources for its service area. The report shall include a list of
71-5 facilities which will be required to supply electric power during
71-6 the forecast periods. The report shall be in a form prescribed by
71-7 the commission. The report shall include:>
71-8 <(1) a tabulation of estimated peak load, resources,
71-9 and reserve margins for each year during the forecast or assessment
71-10 period;>
71-11 <(2) a list of existing electric generating plants in
71-12 service with a description of planned and potential generating
71-13 capacity at existing sites;>
71-14 <(3) a list of facilities which will be needed to
71-15 serve additional electrical requirements identified in the
71-16 forecasts or assessments, the general location of such facilities,
71-17 and the anticipated types of fuel to be utilized in the proposed
71-18 facilities, including an estimation of shutdown costs and disposal
71-19 of spent fuel for nuclear power plants;>
71-20 <(4) a description of additional system capacity which
71-21 might be achieved through, among other things, improvements in:>
71-22 <(A) generating or transmission efficiency;>
71-23 <(B) importation of power;>
71-24 <(C) interstate or interregional pooling;>
71-25 <(D) other improvements in efficiencies of
71-26 operation; and>
71-27 <(E) conservation measures;>
72-1 <(5) an estimation of the mix and type of fuel
72-2 resources for the forecast or assessment period;>
72-3 <(6) an annual load duration curve and a forecast of
72-4 anticipated peak loads for the forecast or assessment period for
72-5 the residential, commercial, industrial, and such other major
72-6 demand sectors in the service area of the electric utility as the
72-7 commission shall determine; and>
72-8 <(7) a description of projected population growth,
72-9 urban development, industrial expansion, and other growth factors
72-10 influencing increased demand for electric energy and the basis for
72-11 such projections.>
72-12 <(c) The commission shall establish and every electric
72-13 utility shall utilize a reporting methodology for preparation of
72-14 the forecasts of future load and resources.>
72-15 <(d) The commission shall review and evaluate the electric
72-16 utilities' forecast of load and resources and any public comment on
72-17 population growth estimates prepared by the Bureau of Business
72-18 Research, The University of Texas at Austin.>
72-19 <(e) Within 12 months after the receipt of the reports
72-20 required by this section, the commission shall hold a public
72-21 hearing and subsequently issue a final report to the governor and
72-22 notify every electric utility of the commission's electric forecast
72-23 for that utility. The commission shall consider its electric
72-24 forecast in all certification proceedings covering new generation
72-25 plants.>
72-26 SECTION 2.04. Section 2.052, Public Utility Regulatory Act
72-27 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
73-1 Regular Session, 1995, is amended to read as follows:
73-2 Sec. 2.052. ENCOURAGEMENT OF ECONOMICAL PRODUCTION.
73-3 (a) The commission shall make and enforce rules to encourage the
73-4 economical production of electric energy by qualifying cogenerators
73-5 and qualifying small power producers.
73-6 (b) On application by a public utility, the regulatory
73-7 authority may approve retail tariffs or contracts containing
73-8 charges that are less than rates approved by the regulatory
73-9 authority but equal to or greater than the utility's marginal cost.
73-10 The charges must be in accordance with the principles of this Act
73-11 and may not be unreasonably preferential, prejudicial,
73-12 discriminatory, predatory, or anticompetitive.
73-13 (c) The methodology for calculating the marginal cost of the
73-14 electric utility shall consist of energy and capacity components.
73-15 The energy component shall include variable operation and
73-16 maintenance expense and marginal fuel or the energy component of
73-17 purchased power. The capacity component included shall be based on
73-18 the annual economic value of deferring, accelerating, or avoiding
73-19 the next increment of any needed capacity, whether such capacity is
73-20 purchased or built. The commission shall ensure that the
73-21 methodology for determining marginal cost is consistently applied
73-22 among utilities but may recognize in any case the individual load
73-23 and resource requirements of the utility.
73-24 SECTION 2.05. Subtitle B, Title II, Public Utility
73-25 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
73-26 74th Legislature, Regular Session, 1995, is amended by adding
73-27 Section 2.053 to read as follows:
74-1 Sec. 2.053. EXEMPT WHOLESALE GENERATORS AND POWER MARKETERS.
74-2 (a) An exempt wholesale generator or power marketer may sell
74-3 electric energy only at wholesale.
74-4 (b) The commission has the following jurisdiction over
74-5 exempt wholesale generators and power marketers that sell electric
74-6 energy in this state:
74-7 (1) to require registration as provided by Subsection
74-8 (c) of this section; and
74-9 (2) to require the filing of reports the commission
74-10 prescribes by rule.
74-11 (c) Each exempt wholesale generator and power marketer
74-12 shall, within 30 days after the date it becomes subject to this
74-13 section, register with the commission or provide proof that it has
74-14 registered with the Federal Energy Regulatory Commission or been
74-15 authorized by the Federal Energy Regulatory Commission to sell
74-16 electric energy at market-based rates. Registration may be
74-17 accomplished by filing with the commission a description of the
74-18 location of any facility used to provide service, the type of
74-19 service provided, a copy of any information filed with the Federal
74-20 Energy Regulatory Commission in connection with registration with
74-21 that commission, and other information the commission prescribes by
74-22 rule.
74-23 SECTION 2.06. Subtitle B, Title II, Public Utility
74-24 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
74-25 74th Legislature, Regular Session, 1995, is amended by adding
74-26 Section 2.054 to read as follows:
74-27 Sec. 2.054. EXEMPT WHOLESALE GENERATOR AND POWER MARKETER
75-1 AFFILIATES. (a) An affiliate of a public utility may be an exempt
75-2 wholesale generator or power marketer and may sell electric energy
75-3 to its affiliated public utility in accordance with Section 2.051
75-4 of this Act and other provisions of law governing wholesale sales
75-5 of electric energy.
75-6 (b) If a rate or charge for or in connection with the
75-7 construction of a facility, or for electric energy produced by the
75-8 construction of a facility, or for electric energy produced by a
75-9 facility other than any portion of a rate or charge which
75-10 represents recovery of the cost of a wholesale rate or charge was
75-11 in effect as of the date of enactment of this section, the facility
75-12 shall not be sold or transferred to an affiliate, or otherwise
75-13 considered an eligible facility as defined by federal law, provided
75-14 that the commission may, after notice and hearing, allow such
75-15 facility to be sold or transferred to an affiliate, or become an
75-16 eligible facility only if such sale or transfer will benefit
75-17 ratepayers of the utility making the sale or transfer, is in the
75-18 public interest, and otherwise complies with state law.
75-19 (c) Any transfer of assets from a utility to an affiliated
75-20 exempt wholesale generator or power marketer shall be valued at the
75-21 greater of net book cost or fair market value. Any transfer of
75-22 assets from an exempt wholesale generator or power marketer to an
75-23 affiliated public utility shall be valued at the lesser of net book
75-24 cost or fair market value. At the time the transfer is approved,
75-25 the commission shall order the utility to adjust its rates so that
75-26 its tariffs reflect benefits from the proceeds of the sale and
75-27 exclude any costs associated with the transferred facility.
76-1 SECTION 2.07. Subtitle B, Title II, Public Utility
76-2 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
76-3 74th Legislature, Regular Session, 1995, is amended by adding
76-4 Section 2.056 to read as follows:
76-5 Sec. 2.056. TRANSMISSION SERVICE. (a) The commission may
76-6 require a utility, including a municipally owned utility, to
76-7 provide transmission service at wholesale to another utility, a
76-8 qualifying facility, an exempt wholesale generator, or a power
76-9 marketer and may determine whether the terms and conditions for the
76-10 transmission service are reasonable. The commission may require
76-11 transmission service at wholesale, including construction or
76-12 enlargement of facilities, in a proceeding not related to approval
76-13 of an integrated resource plan. The commission may not issue a
76-14 decision or rule relating to transmission service that is contrary
76-15 to an applicable decision, rule, or policy statement of a federal
76-16 regulatory agency having jurisdiction.
76-17 (b) The commission, with the advice and consent of the
76-18 governor, shall appoint a five-person interstate connection
76-19 committee to investigate the most economical, reliable, and
76-20 efficient means to synchronously interconnect the alternating
76-21 current electric facilities of the electric facilities of electric
76-22 utilities within the Electric Reliability Council of Texas
76-23 reliability area to the alternating current electric facilities of
76-24 the electric facilities of electric utilities within the Southwest
76-25 Power Pool reliability area. The committee shall report an
76-26 estimate of the cost and benefit to effect the interconnection, an
76-27 estimate of the time to construct the interconnecting facilities,
77-1 and the service territory of the utilities in which those
77-2 facilities will be located. The committee shall submit its report
77-3 to the legislature by September 1, 1997, at which time the
77-4 committee shall be dissolved.
77-5 SECTION 2.08. Subtitle B, Title II, Public Utility
77-6 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
77-7 74th Legislature, Regular Session, 1995, is amended by adding
77-8 Section 2.057 to read as follows:
77-9 Sec. 2.057. WHOLESALE COMPETITION. (a) A public utility
77-10 that owns or operates transmission facilities shall provide
77-11 wholesale transmission service at rates, terms of access, and
77-12 conditions that are comparable to the rates, terms of access, and
77-13 conditions of the utility's use of its system. The commission
77-14 shall ensure that utilities provide nondiscriminatory access to
77-15 transmission service for qualifying facilities, exempt wholesale
77-16 generators, power marketers, and public utilities. The commission
77-17 shall adopt rules within 180 days of the effective date of this
77-18 section relating to wholesale transmission service, rates, and
77-19 access. The rules shall be consistent with the standards in this
77-20 section, shall not be contrary to federal law, including any
77-21 applicable policy statement, decision, or rule of a federal
77-22 regulatory agency, having jurisdiction and shall require
77-23 transmission services that are not less than the transmission
77-24 services the Federal Energy Regulatory Commission may require in
77-25 similar circumstances. The rules shall also provide that all
77-26 ancillary services associated with a utility's discounted wholesale
77-27 sales shall be provided by the utility at the same prices and under
78-1 the same terms and conditions as such services are provided to
78-2 third persons, and all ancillary services provided by the utility
78-3 and associated with its discounted wholesale sales shall also be
78-4 provided to third persons upon request. All public utilities that
78-5 own or operate transmission facilities shall file tariffs
78-6 implementing such rules within 60 days after the commission has
78-7 adopted transmission pricing and access rules pursuant to this
78-8 section unless the terms and conditions for access and pricing are
78-9 included in the tariff of another utility. Such tariffs shall be
78-10 filed with the appropriate state or federal regulatory agency
78-11 having jurisdiction over the transmission service of the entity
78-12 filing the tariff.
78-13 (b) The commission shall adopt rules relating to the
78-14 registration and reporting requirements of qualifying facilities,
78-15 exempt wholesale generators, and power marketers.
78-16 (c) To the extent a utility provides transmission of
78-17 electric energy at the request of a third party, the commission
78-18 shall ensure that the costs of the transmission are not borne by
78-19 the utility's other customers by requiring the utility to recover
78-20 from the entity for which the transmission is provided all
78-21 reasonable costs incurred by the utility in providing transmission
78-22 services necessary for the transaction.
78-23 (d) For the purposes of administering these rules, the
78-24 commission may require that parties to a dispute over the prices,
78-25 terms, and conditions of wholesale transmission service engage in a
78-26 nonbinding alternative dispute resolution process before seeking a
78-27 resolution of a dispute from the commission.
79-1 (e) The commission shall submit a report to the 75th
79-2 Legislature on methods or procedures for quantifying the magnitude
79-3 of stranded investment, procedures for allocating costs, and the
79-4 acceptable methods of recovering stranded costs.
79-5 (f) Affiliates of public utilities, exempt wholesale
79-6 generators, qualifying facilities, and all other providers of
79-7 generation may compete for the business of selling power. In
79-8 accordance with the applicable provisions of this Act, a public
79-9 utility may purchase power from an affiliate. A public utility may
79-10 not grant undue preference to any person in connection with the
79-11 utility's purchase or sale of electric energy at wholesale or other
79-12 utility services.
79-13 (g) For the purposes of this section, the term "public
79-14 utility" shall include municipally owned utilities.
79-15 SECTION 2.09. Section 2.105, Public Utility Regulatory Act
79-16 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
79-17 Regular Session, 1995, is amended by adding Subsection (c) to read
79-18 as follows:
79-19 (c) Not later than the 31st day before the date a utility
79-20 files a statement of intent under Section 2.212(a) of this Act, the
79-21 utility shall provide to each municipality having original
79-22 jurisdiction notice of intent to file the statement. Not later
79-23 than the 30th day after the date a municipality receives notice of
79-24 intent to file a statement, the municipality may request that the
79-25 utility file with the municipality a statement of intent in
79-26 accordance with Section 2.212(a) of this Act. If requested, the
79-27 utility shall file the statement of intent with the municipality at
80-1 the same time the statement is filed with the commission.
80-2 SECTION 2.10. Subsection (g), Section 2.108, Public Utility
80-3 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
80-4 Legislature, Regular Session, 1995, is amended to read as follows:
80-5 (g) The commission shall hear such appeal de novo based on
80-6 the test year presented to the municipality and by its final order
80-7 shall fix such rates as the municipality should have fixed in the
80-8 ordinance from which the appeal was taken. In the event that the
80-9 commission fails to enter its final order: (1) for proceedings
80-10 involving the rates of a municipally owned utility, within 185 days
80-11 from the date on which the appeal is perfected or on which the
80-12 utility files a rate application as prescribed by Subsection (c) of
80-13 this section; or (2) for proceedings in which similar relief has
80-14 also been concurrently sought from the commission under its
80-15 original jurisdiction, within 120 days from the date such appeal is
80-16 perfected or the date upon which final action must be taken in the
80-17 similar proceedings so filed with the commission whichever shall
80-18 last occur; or (3) in all other proceedings, within 185 days from
80-19 the date such appeal is perfected, the schedule of rates proposed
80-20 by the utility shall be deemed to have been approved by the
80-21 commission and effective upon the expiration of said applicable
80-22 period. Any rates, whether temporary or permanent, set by the
80-23 commission shall be prospective and observed from and after the
80-24 applicable order of the commission, except interim rate orders
80-25 necessary to effect uniform system-wide rates or to provide the
80-26 utility the opportunity to avoid confiscation during the period
80-27 beginning on the date of filing of a petition for review with the
81-1 commission and ending on the date of a final order setting rates.
81-2 The commission shall order interim rates on a prima facie showing
81-3 by the utility that it has experienced confiscation during that
81-4 period. For purposes of this subsection, confiscation includes
81-5 negative cash flow experienced by the utility at any time during
81-6 the pendency of a rate case proceeding. The utility concerned
81-7 shall refund or credit against future bills all sums collected
81-8 during the period of interim rates in excess of the rate finally
81-9 ordered plus interest at the current rate as finally determined by
81-10 the commission.
81-11 SECTION 2.11. Subtitle D, Title II, Public Utility
81-12 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
81-13 74th Legislature, Regular Session, 1995, is amended by adding
81-14 Section 2.1511 to read as follows:
81-15 Sec. 2.1511. MARK-UP. Any cost recovery factor established
81-16 for recovery of purchased power costs may include the costs
81-17 incurred by the utility for the purchase of capacity and energy,
81-18 together with a mark-up added to the costs or other mechanism, as
81-19 determined by the commission, to reasonably compensate the utility
81-20 for financial risks, if any, to the utility associated with
81-21 purchased power obligations and the value added by the utility in
81-22 making the purchased power available to its customers. The
81-23 mark-ups and cost recovery factors, if allowed, may be those that
81-24 are necessary to encourage the utility to include economical
81-25 purchased power as part of its energy and capacity resource supply
81-26 plan.
81-27 SECTION 2.12. Section 2.152, Public Utility Regulatory Act
82-1 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
82-2 Regular Session, 1995, is amended by adding Subsection (e) to read
82-3 as follows:
82-4 (e) Reasonable costs of participating in a proceeding under
82-5 this Act may be allowed, not to exceed the amount approved by the
82-6 regulatory authority.
82-7 SECTION 2.13. Subsection (b), Section 2.154, Public Utility
82-8 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
82-9 74th Legislature, Regular Session, 1995, is amended to read as
82-10 follows:
82-11 (b) Every public utility shall file with, and as a part of
82-12 such schedules, all rules and regulations relating to or affecting
82-13 the rates, public utility service, product, or commodity furnished
82-14 by such utility. The commission shall treat customer names and
82-15 addresses, prices, individual customer contracts, and expected load
82-16 and usage data as highly sensitive trade secrets, and such
82-17 information shall not be subject to disclosure under the open
82-18 records law, Chapter 552, Government Code.
82-19 SECTION 2.14. Subtitle E, Title II, Public Utility
82-20 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
82-21 74th Legislature, Regular Session, 1995, is amended by adding
82-22 Section 2.2011 to read as follows:
82-23 Sec. 2.2011. ELECTRIC COOPERATIVE EXEMPTION. (a) An
82-24 electric cooperative corporation that provides retail electric
82-25 utility service at distribution voltage is exempt from rate
82-26 regulation if a majority of the members voting in an election on
82-27 the deregulation of the electric cooperative vote to approve the
83-1 exemption and the electric cooperative sends notice of the action
83-2 to each applicable regulatory authority. An electric cooperative
83-3 that wants to hold an election under this section shall send a
83-4 ballot by mail to each electric cooperative member. The electric
83-5 cooperative may include the ballot in a monthly billing. The
83-6 ballot shall provide for voting for or against rate deregulation of
83-7 the electric cooperative. If the proposition is approved, the
83-8 electric cooperative shall send each ballot to the commission not
83-9 later than the 10th day after the date the electric cooperative
83-10 counts the ballots. Based on the ballots received, the commission
83-11 shall administratively certify that the electric cooperative is or
83-12 is not deregulated for rate-making purposes. An electric
83-13 cooperative may not hold another election on the issue of being
83-14 exempt from rate regulation before the first anniversary of the
83-15 most recent election on the issue. Subsections (b) through (n) of
83-16 this section apply to an electric cooperative that has elected to
83-17 be exempt from rate regulation.
83-18 (b) No regulatory authority shall fix and regulate the rates
83-19 of an electric cooperative that has made an election under this
83-20 section to be exempt from rate regulation except as provided for
83-21 the commission in Subsections (g) and (i) of this section.
83-22 Notwithstanding Section 2.101(a) of this Act, the commission has
83-23 exclusive original jurisdiction in all of the electric
83-24 cooperative's service area in a proceeding initiated under
83-25 Subsection (g) or (i) of this section.
83-26 (c) An electric cooperative may change its rates by:
83-27 (1) adopting a resolution approving the proposed
84-1 change;
84-2 (2) mailing notice of the proposed change to:
84-3 (A) the commission;
84-4 (B) each affected municipality;
84-5 (C) each affected customer, which notice may be
84-6 included in a monthly billing; and
84-7 (D) each electric utility providing retail
84-8 service in the electric cooperative's service area or in the
84-9 adjoining service area; and
84-10 (3) making available at each of the electric
84-11 cooperative's business offices for review by all interested persons
84-12 a cost-of-service study that:
84-13 (A) is not more than five years old at the time
84-14 the electric cooperative adopts rates under this subsection; and
84-15 (B) bears the certification of a professional
84-16 engineer or certified public accountant.
84-17 (d)(1) The notice required by Subsection (c) of this section
84-18 must contain the following information:
84-19 (A) the increase or decrease in total operating
84-20 revenues over actual test year revenues or over test year revenues
84-21 adjusted to annualize the recovery of changes in the cost of
84-22 purchased electricity, stated both as a dollar amount and as a
84-23 percentage;
84-24 (B) the classes of utility customers affected
84-25 and the creation and application of any new rate classes;
84-26 (C) the increase or decrease for each class
84-27 stated as a percentage of actual test year revenues for the class
85-1 or of test year revenues for the class adjusted to annualize the
85-2 recovery of changes in the cost of purchased electricity;
85-3 (D) a statement that the commission may review
85-4 the rate change if the commission receives a petition within 60
85-5 days in accordance with Subsection (g) of this section;
85-6 (E) the address and telephone number of the
85-7 commission;
85-8 (F) a statement that a customer opposed to the
85-9 rate change should notify the electric cooperative in writing of
85-10 the person's opposition and should provide a return address; and
85-11 (G) a statement that members may review a copy
85-12 of any written opposition the electric cooperative receives.
85-13 (2) The electric cooperative may not be required to
85-14 include additional information in the notice.
85-15 (e) The electric cooperative shall make available for review
85-16 by a member of the cooperative at each of the electric
85-17 cooperative's business offices a copy of any written opposition to
85-18 the rate change the electric cooperative receives.
85-19 (f) The electric cooperative shall file tariffs with the
85-20 commission. If the electric cooperative complies with Subsection
85-21 (c) of this section, the commission shall approve the tariffs not
85-22 later than the 10th day after the 60-day period prescribed by
85-23 Subsection (g) of this section expires, unless a review is required
85-24 under Subsection (g) or (i) of this section. If the tariffs are
85-25 approved or if a review is not required and the commission fails to
85-26 act during the period prescribed by this subsection, the change in
85-27 rates takes effect on the 70th day after the date the electric
86-1 cooperative first complies with all requirements of Subsection (c)
86-2 of this section or on a later date determined by the electric
86-3 cooperative. Except as provided by Subsections (g) and (i) of this
86-4 section, the rates of the electric cooperative are not subject to
86-5 review.
86-6 (g) The commission shall review a change in rates under this
86-7 section if, not later than the 60th day after the date the electric
86-8 cooperative first complies with all requirements of Subsection (c)
86-9 of this section, the commission receives a petition requesting
86-10 review signed by:
86-11 (1) at least 10 percent of the members of the electric
86-12 cooperative;
86-13 (2) members of the electric cooperative who purchased
86-14 more than 50 percent of the electric cooperative's annual energy
86-15 sales to a customer class in the test year, provided that the
86-16 petition includes a certification of the purchases; or
86-17 (3) an executive officer of an affected electric
86-18 utility, provided that the petition prescribes the particular class
86-19 or classes for which a review is requested.
86-20 (h) When a person files a petition under Subsection (g) of
86-21 this section, the person shall notify the electric cooperative in
86-22 writing of the action.
86-23 (i) The commission may on its own motion review the rates of
86-24 an electric cooperative if the commission first finds that there is
86-25 good cause to believe that the electric cooperative is earning more
86-26 than a reasonable return on overall system revenues or on revenue
86-27 from a rate class.
87-1 (j) The commission shall conduct a review under Subsection
87-2 (g)(1) or (2) of this section or under Subsection (i) of this
87-3 section in accordance with Section 2.212 of this Act and the other
87-4 applicable rate-setting principles of this subtitle, except that:
87-5 (1) the period for review does not begin until the
87-6 electric cooperative files a rate-filing package as required by
87-7 commission rules;
87-8 (2) the proposed change may not be suspended during
87-9 the pendency of the review; however, the electric cooperative shall
87-10 refund or credit against future bills all sums collected in excess
87-11 of the rate finally set by the commission, if the commission so
87-12 orders; and
87-13 (3) the electric cooperative shall observe the rates
87-14 set by the commission until the rates are changed as provided by
87-15 this section or by other sections of this Act.
87-16 (k) For a review conducted under Subsection (g)(3) of this
87-17 section, the electric cooperative shall file with the commission a
87-18 copy of the cost-of-service study required under Subsection (c)(3)
87-19 of this section not later than the 10th day after the date the
87-20 electric cooperative receives from the affected electric utility
87-21 notice that a petition has been filed. The commission shall
87-22 determine for each class for which review has been requested the
87-23 annual cost of providing service to the class, as stated in the
87-24 electric cooperative's cost-of-service study, and the revenues for
87-25 the class that would be produced by multiplying the rate set by the
87-26 electric cooperative by the annual billing units for the class, as
87-27 stated in the cost-of-service study. If the electric cooperative
88-1 proposes a rate class solely for a new customer, the electric
88-2 cooperative shall estimate the reasonable annual cost of providing
88-3 service to the class, and the electric cooperative shall base class
88-4 revenues on reasonable estimates of billing units.
88-5 (l) The rate for each class for which review has been
88-6 requested under Subsection (g)(3) of this section is suspended
88-7 during the pendency of the review. The commission shall dismiss
88-8 the petition and approve the rates if the revenues for the class
88-9 are equal to or greater than the cost of providing service to the
88-10 class. The commission shall disapprove the rate if the revenues
88-11 for the class are less than the cost of providing service to the
88-12 class; however, this action does not affect reconsideration of the
88-13 rate as a part of any subsequent rate-making proceeding. The rate
88-14 adopted by the electric cooperative is deemed approved and may be
88-15 placed into effect if the commission fails to make its final
88-16 determination administratively not later than the 45th day after
88-17 the date the electric cooperative files its cost-of-service study.
88-18 (m) Except as provided by Subsection (a) of this section,
88-19 the members of an electric cooperative may at any time revoke the
88-20 electric cooperative's election to be exempt from rate regulation
88-21 or elect to again be exempt from rate regulation by majority vote
88-22 of the members voting.
88-23 (n) This section does not affect the application of other
88-24 provisions of this Act not directly related to rates or to the
88-25 authority of the commission to require an electric cooperative to
88-26 file reports required under this Act or rules adopted by the
88-27 commission. A service fee or a service rule or regulation set by
89-1 the electric cooperative under this section must comply with
89-2 commission rules applicable to all electric utilities. The
89-3 commission may determine whether an electric cooperative has
89-4 unlawfully charged, collected, or received a rate for electric
89-5 utility service.
89-6 (o) A single customer may seek a review of the rates of an
89-7 electric cooperative pursuant to Section 2.211 of this Act if the
89-8 customer consumes more than 250,000,000 kwh and purchases more than
89-9 10 percent of the total energy sales or more than 7.5 percent of
89-10 the revenues of the electric cooperative in any period of 12
89-11 consecutive months within the 36 months preceding the date on which
89-12 that customer initiates a proceeding under Section 2.211 of this
89-13 Act. A right conferred by this subsection is in addition to rights
89-14 that the customer has under Subsection (g) of this section and not
89-15 in limitation or in lieu of those rights.
89-16 SECTION 2.15. Subsection (b), Section 2.203, Public Utility
89-17 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
89-18 74th Legislature, Regular Session, 1995, is amended to read as
89-19 follows:
89-20 (b) In fixing a reasonable return on invested capital, the
89-21 regulatory authority shall consider, in addition to other
89-22 applicable factors, efforts to comply with the utility's most
89-23 recently approved individual integrated resource <statewide energy>
89-24 plan, the efforts and achievements of such utility in the
89-25 conservation of resources, the quality of the utility's services,
89-26 the efficiency of the utility's operations, and the quality of the
89-27 utility's management.
90-1 SECTION 2.16. Subsection (b), Section 2.208, Public Utility
90-2 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
90-3 74th Legislature, Regular Session, 1995, is amended to read as
90-4 follows:
90-5 (b) Transactions with Affiliated Interests. Payment to
90-6 affiliated interests for costs of any services or any property,
90-7 right, or thing or for interest expense may not be allowed either
90-8 as capital cost or as expense except to the extent that the
90-9 regulatory authority shall find such payment to be reasonable and
90-10 necessary for each item or class or items as determined by the
90-11 commission. Any such finding shall include specific findings of
90-12 the reasonableness and necessity of each item or class of items
90-13 allowed and a finding that the price to the utility is no higher
90-14 than prices charged by the supplying affiliate to its other
90-15 affiliates or divisions for the same item or class of items or to
90-16 unaffiliated persons or corporations. In making such findings
90-17 regarding affiliate transactions, including affiliate transactions
90-18 subject to Section 2.051 of this Act, the regulatory authority
90-19 shall make a determination regarding the extent to which the
90-20 conditions and circumstances of such transactions are reasonably
90-21 comparable relative to quantity, terms and conditions, date of
90-22 contract, and place of delivery and allow for appropriate
90-23 differences based on that determination. Nothing herein requires
90-24 such findings to be made prior to the inclusion of such payments in
90-25 the utility's charges to consumers so long as there is a mechanism
90-26 for making such charges subject to refund pending the making of
90-27 such findings. <The price paid by gas utilities to affiliated
91-1 interests for natural gas from Outer Continental Shelf lands shall
91-2 be subject to a rebuttable presumption that such price is
91-3 reasonable if the price paid does not exceed the price permitted by
91-4 federal regulation if such gas is regulated by any federal agency
91-5 or if not regulated by a federal agency does not exceed the price
91-6 paid by nonaffiliated parties for natural gas from Outer
91-7 Continental Shelf lands. The burden of establishing that such a
91-8 price paid is not reasonable shall be on any party challenging the
91-9 reasonableness of such price.>
91-10 SECTION 2.17. Section 2.211, Public Utility Regulatory Act
91-11 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
91-12 Regular Session, 1995, is amended by adding Subsections (c), (d),
91-13 and (e) to read as follows:
91-14 (c) Not later than the 120th day after the date the
91-15 regulatory authority notifies the utility that the regulatory
91-16 authority has decided to proceed with an inquiry under this section
91-17 relating to the rates of the utility, the utility shall file a
91-18 rate-filing package with the regulatory authority. The regulatory
91-19 authority may grant an extension of the 120-day period or waive the
91-20 rate-filing package requirement on agreement of the parties. The
91-21 regulatory authority shall make a final determination concerning
91-22 the matter not later than the 185th day after the date the utility
91-23 files the rate-filing package. However, the 185-day period is
91-24 extended two days for each one day of actual hearing on the merits
91-25 of the case that exceeds 15 days.
91-26 (d) At any time after an initial complaint is filed under
91-27 this section, the regulatory authority may issue an interim order
92-1 fixing temporary rates for the utility that will continue until a
92-2 final determination on the matter is made. On issuance of a final
92-3 order, the regulatory authority may require the utility to refund
92-4 to customers or to credit against future bills all sums collected
92-5 during the period in which those temporary rates were in effect
92-6 that are in excess of the rate finally ordered, plus interest at
92-7 the current rate as finally determined by the commission or, if the
92-8 amounts collected during the period in which the temporary rates
92-9 were in effect are less than the amounts that would have been
92-10 collected under the rate finally ordered, the regulatory authority
92-11 shall authorize the utility to surcharge bills to recover the
92-12 difference between those amounts, plus interest on the amount of
92-13 the difference at the current rate as finally determined by the
92-14 commission.
92-15 (e) If the 185-day period has been extended as provided by
92-16 Subsection (c) of this section and the regulatory authority has not
92-17 issued a final order or fixed temporary rates on or before the
92-18 185th day, the rates charged by the utility on that 185th day
92-19 automatically become temporary rates. On issuance of a final
92-20 order, the regulatory authority shall require the utility to refund
92-21 to customers or to credit against future bills all sums collected
92-22 during the period in which those temporary rates were in effect
92-23 that are in excess of the rate finally ordered, plus interest at
92-24 the current rate as finally determined by the commission or, if the
92-25 amounts collected during the period in which the temporary rates
92-26 were in effect are less than the amounts that would have been
92-27 collected under the rate finally ordered, the regulatory authority
93-1 shall authorize the utility to surcharge bills to recover the
93-2 difference between those amounts, plus interest on the amount of
93-3 the difference at the current rate as finally determined by the
93-4 commission.
93-5 SECTION 2.18. Subsections (a), (e), and (g), Section 2.212,
93-6 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
93-7 Acts of the 74th Legislature, Regular Session, 1995, are amended to
93-8 read as follows:
93-9 (a) Except as provided by Section 2.105(c) of this Act, a
93-10 <A> utility may not make changes in its rates except by filing a
93-11 statement of intent with the regulatory authority having original
93-12 jurisdiction at least 35 days prior to the effective date of the
93-13 proposed change. The statement of intent shall include proposed
93-14 revisions of tariffs and schedules and a statement specifying in
93-15 detail each proposed change, the effect the proposed change is
93-16 expected to have on the revenues of the company, the classes and
93-17 numbers of utility consumers affected, and such other information
93-18 as may be required by the regulatory authority's rules and
93-19 regulations. A copy of the statement of intent shall be mailed or
93-20 delivered to the appropriate officer of each affected municipality,
93-21 and notice shall be given by publication in conspicuous form and
93-22 place of a notice to the public of such proposed change once in
93-23 each week for four successive weeks prior to the effective date of
93-24 the proposed change in a newspaper having general circulation in
93-25 each county containing territory affected by the proposed change
93-26 and by mail to such other affected persons as may be required by
93-27 the regulatory authority's rules and regulations. The regulatory
94-1 authority may waive the publication of notice requirement
94-2 prescribed by this subsection in a proceeding that involves a rate
94-3 reduction for all affected ratepayers only. The applicant shall
94-4 give notice of the proposed rate change by mail to all affected
94-5 utility customers. The regulatory authority by rule shall also
94-6 define other proceedings for which the publication of notice
94-7 requirement prescribed by this subsection may be waived on a
94-8 showing of good cause, provided that a waiver may not be granted in
94-9 any proceeding involving a rate increase to any class or category
94-10 of ratepayer.
94-11 (e) If the 150-day period has been extended, as provided for
94-12 in Subsection (d) of this section, and the commission fails to make
94-13 its final determination of rates within 150 days from the date that
94-14 the proposed change otherwise would have gone into effect, the
94-15 utility concerned may put a changed rate, not to exceed the
94-16 proposed rate, into effect throughout all areas in which the
94-17 utility sought to change its rates, including the areas over which
94-18 the commission is exercising its appellate and its original
94-19 jurisdiction, on the filing with the commission <regulatory
94-20 authority> of a bond payable to the commission <regulatory
94-21 authority> in an amount and with sureties approved by the
94-22 commission <regulatory authority> conditioned upon refund and in a
94-23 form approved by the commission <regulatory authority>. The
94-24 utility concerned shall refund or credit against future bills all
94-25 sums collected during the period of suspension in excess of the
94-26 rate finally ordered plus interest at the current rate as finally
94-27 determined by the commission <regulatory authority>.
95-1 (g)(1) Except as permitted by Section 2.051 of this Act, a
95-2 <A> rate or tariff set by the commission may not authorize a
95-3 utility to automatically adjust and pass through to its customers
95-4 changes in fuel or other costs of the utility.
95-5 (2)(A) Subdivision (1) of this subsection does not
95-6 prohibit the commission from reviewing and providing for
95-7 adjustments of a utility's fuel factor. The commission by rule
95-8 shall implement procedures that provide for the timely adjustment
95-9 of a utility's fuel factor, with or without a hearing. The
95-10 procedures shall provide that the findings required by Section
95-11 2.208(b) of this Act regarding fuel transactions with affiliated
95-12 interests are made in a fuel reconciliation proceeding or in a rate
95-13 case filed under Subsection (a) of this section or under Section
95-14 2.211 of this Act. The procedures shall provide an affected party
95-15 notice and the opportunity to request a hearing before the
95-16 commission. However, the commission may adjust a utility's fuel
95-17 factor without a hearing if the commission determines that a
95-18 hearing is not necessary. If the commission holds a hearing, the
95-19 <Any revision of a utility's billings to its customers to allow for
95-20 the recovery of additional fuel costs may be made only upon a
95-21 public hearing and order of the commission.>
95-22 <(B) The> commission may consider any evidence
95-23 that is appropriate and in the public interest at such hearing.
95-24 The commission shall render a timely decision approving,
95-25 disapproving, or modifying the adjustment to the utility's fuel
95-26 factor.
95-27 (B) The commission by rule shall provide for the
96-1 reconciliation of a utility's fuel costs on a timely basis.
96-2 (C) A proceeding under this subsection may not
96-3 be considered a rate case under this section.
96-4 (3) <The commission may, after a hearing, grant
96-5 interim relief for fuel cost increases that are the result of
96-6 unusual and emergency circumstances or conditions.>
96-7 <(4)>(A) This subsection applies only to increases or
96-8 decreases in the cost of purchased electricity which have been:
96-9 (i) accepted by a federal regulatory
96-10 authority; or
96-11 (ii) approved after a hearing by the
96-12 commission.
96-13 (B) The commission may utilize any appropriate
96-14 method to provide for the adjustment of the cost of purchased
96-15 electricity upon such terms and conditions as the commission may
96-16 determine. Such purchased electricity costs may be recovered
96-17 concurrently with the effective date of the changed costs to the
96-18 purchasing utility or as soon thereafter as is reasonably
96-19 practical.
96-20 (C) The commission may also provide for a
96-21 mechanism to allow any public utility that has a noncontiguous
96-22 geographical service area, and that purchases power for resale for
96-23 that noncontiguous service area from public utilities that are not
96-24 members of the Electric Reliability Council of Texas, to recover
96-25 purchased power cost for that area in a manner that reflects the
96-26 purchased power cost for that specific geographical noncontiguous
96-27 area. The commission may not, however, require such a mechanism
97-1 for any electric cooperative corporation unless requested by the
97-2 electric cooperative corporation.
97-3 SECTION 2.19. Section 2.214, Public Utility Regulatory Act
97-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
97-5 Regular Session, 1995, is amended to read as follows:
97-6 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
97-7 OR SERVICES. A public utility may not, as to rates or services,
97-8 make or grant any unreasonable preference or advantage to any
97-9 corporation or person within any classification or subject any
97-10 corporation or person within any classification to any unreasonable
97-11 prejudice or disadvantage. A public utility may not establish and
97-12 maintain any unreasonable differences as to rates of service either
97-13 as between localities or as between classes of service. Charges to
97-14 individual customers for retail or wholesale electric service that
97-15 are less than the rate approved by the regulatory authority shall
97-16 not constitute an impermissible difference, preference, or
97-17 advantage.
97-18 SECTION 2.20. Subtitle E, Title II, Public Utility
97-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
97-20 74th Legislature, Regular Session, 1995, is amended by adding
97-21 Section 2.2141 to read as follows:
97-22 Sec. 2.2141. DISCOUNTED RATES FOR CERTAIN STATE INSTITUTIONS
97-23 OF HIGHER EDUCATION. Notwithstanding any other provision of this
97-24 Act, each public utility and municipally owned utility shall
97-25 discount charges for electric service provided to any facility of
97-26 any four-year state university, upper-level institution, Texas
97-27 State Technical College, or college. The discount shall be a 20
98-1 percent reduction of the utility's base rates that otherwise would
98-2 be rendered under the applicable tariffed rate. However, if a 20
98-3 percent discount results in a reduction greater than one percent of
98-4 the public or municipally owned utility's total annual revenues or
98-5 if the municipally owned utility, as of September 1, 1995,
98-6 discounts base commercial rates for electric service provided to
98-7 all four-year state universities or colleges in its service area by
98-8 20 percent or more, the utility shall be exempt from the provisions
98-9 of this section. Each public utility shall file tariffs with the
98-10 commission reflecting the discount within 30 days of the effective
98-11 date of this section. Such initial tariff filing shall not be
98-12 considered a rate change for purposes of Section 2.212 of this Act.
98-13 This section does not apply to rates charged to a state institution
98-14 of higher education by a municipally owned utility which provides a
98-15 discounted rate to the state for electric services below rates in
98-16 effect on January 1, 1995, and which discounted rates provide a
98-17 greater financial discount to the state than is provided to the
98-18 state institution of higher education through the discount provided
98-19 by this section. An investor-owned public utility may not recover
98-20 the assigned and allocated costs of serving a state university or
98-21 college which receives a discount under this section from
98-22 residential customers or any other customer class.
98-23 SECTION 2.21. Section 2.215, Public Utility Regulatory Act
98-24 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
98-25 Regular Session, 1995, is amended by amending Subsection (a) and by
98-26 adding Subsection (c) to read as follows:
98-27 (a) A public utility may not, directly or indirectly, by any
99-1 device whatsoever or in any manner, charge, demand, collect, or
99-2 receive from any person a greater or less compensation for any
99-3 service rendered or to be rendered by the utility than that
99-4 prescribed in the schedule of rates of the public utility
99-5 applicable thereto when filed in the manner provided in this Act,
99-6 nor may any person knowingly receive or accept any service from a
99-7 public utility for a compensation greater or less than that
99-8 prescribed in the schedules provided that it is lawful for a
99-9 utility to charge individual customers for retail or wholesale
99-10 electric service in accordance with Section 2.052 of this Act.
99-11 (c) Notwithstanding any other provision of this Act, if the
99-12 commission has approved as of September 1, 1995, the establishment
99-13 of a separate rate class for electric service for a university and
99-14 has grouped public schools in a separate rate class, the commission
99-15 shall include community colleges in the rate class with public
99-16 school customers.
99-17 SECTION 2.22. Section 2.251, Public Utility Regulatory Act
99-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
99-19 Regular Session, 1995, is amended to read as follows:
99-20 Sec. 2.251. DEFINITION. For the purposes of this subtitle
99-21 only, "retail public utility" means any person, corporation,
99-22 municipality, political subdivision or agency, or cooperative
99-23 corporation, now or hereafter operating, maintaining, or
99-24 controlling in Texas facilities for providing retail public utility
99-25 service, except that a qualifying cogenerator selling electric
99-26 energy at retail to the sole purchaser of the cogenerator's thermal
99-27 output pursuant to Section 2.052 of this Act shall not for that
100-1 reason be considered a retail public utility.
100-2 SECTION 2.23. Subsections (d), (e), and (f), Section 2.255,
100-3 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
100-4 Acts of the 74th Legislature, Regular Session, 1995, are amended to
100-5 read as follows:
100-6 (d) This section does not apply to a certificate of
100-7 convenience and necessity for an electric generating plant that is
100-8 requested under Section 2.051 of this Act. The commission may
100-9 grant a certificate of convenience and necessity for an electric
100-10 generating plant only in accordance with Section 2.051 of this Act.
100-11 (e) <(1) In addition to the requirements of this section, an
100-12 electric utility applying for a certificate of convenience and
100-13 necessity for a new generating plant must first file a notice of
100-14 intent to file an application for certification.>
100-15 <(2) The notice of intent shall set out alternative
100-16 methods considered to help meet the electrical needs, related
100-17 electrical facilities, and the advantages and disadvantages of the
100-18 alternatives. In addition, the notice shall indicate compatibility
100-19 with the most recent long-term forecast provided in this Act.>
100-20 <(3) The commission shall conduct a hearing on the
100-21 notice of intent to determine the appropriateness of the proposed
100-22 generating plant as compared to the alternatives and shall issue a
100-23 report on its findings. In conjunction with the issuance of the
100-24 report, the commission shall render a decision approving or
100-25 disapproving the notice. Such decision shall be rendered within
100-26 180 days from the date of filing the notice of intent.>
100-27 <(e)(1) On approval of the notice of intent, a utility may
101-1 apply for certification for a generating plant, site, and site
101-2 facilities not later than 12 months before construction is to
101-3 commence.>
101-4 <(2) The application for certification shall contain
101-5 such information as the commission may require to justify the
101-6 proposed generating plant, site, and site facilities and to allow a
101-7 determination showing compatibility with the most recent forecast.>
101-8 <(3) Certificates of convenience and necessity shall
101-9 be granted on a nondiscriminatory basis if the commission finds
101-10 that the proposed new plant is required under the service area
101-11 forecast, that it is the best and most economical choice of
101-12 technology for that service area as compatible with the
101-13 commission's forecast, and that conservation and alternative energy
101-14 sources cannot meet the need.>
101-15 <(f)> If the application for a certificate of convenience
101-16 and necessity involves new transmission facilities, the commission
101-17 shall approve or deny the application within one year after the
101-18 date the application is filed. If the commission does not approve
101-19 or deny the application before this deadline, any party may seek a
101-20 writ of mandamus in a district court of Travis County to compel the
101-21 commission to make a decision on the application.
101-22 SECTION 2.24. Section 2302.043, Government Code, is amended
101-23 to read as follows:
101-24 Sec. 2302.043. Order or Ruling. (a) A commission order or
101-25 ruling entered under this chapter is considered to have been
101-26 entered or adopted under the Public Utility Regulatory Act of 1995
101-27 <(Article 1446c, Vernon's Texas Civil Statutes)>.
102-1 (b) A commission order or ruling entered under this chapter
102-2 is enforced under Subtitle I, Title I, <Sections 71 through 77 of
102-3 the> Public Utility Regulatory Act of 1995 <(Article 1446c,
102-4 Vernon's Texas Civil Statutes)>.
102-5 SECTION 2.25. Chapter 166, Acts of the 63rd Legislature,
102-6 Regular Session, 1973 (Article 1435a, Vernon's Texas Civil
102-7 Statutes), is amended by adding Section 4c to read as follows:
102-8 Sec. 4c. (a) After the effective date of this section, an
102-9 electric cooperative corporation may form a joint powers agency
102-10 with one or more public entities as if the electric cooperative
102-11 corporation were a public entity. This section becomes effective
102-12 September 1, 1995.
102-13 (b) Notwithstanding any state statute to the contrary, a
102-14 joint powers agency formed under this section after the effective
102-15 date of this section is subject to all provisions of the Public
102-16 Utility Regulatory Act of 1995, as enacted by S.B. 319, Acts of the
102-17 74th Legislature, Regular Session, 1995, and is under the
102-18 jurisdiction of the Public Utility Commission of Texas as provided
102-19 by that Act.
102-20 (c) A joint powers agency in which an electric cooperative
102-21 corporation participates under this section is a governmental body
102-22 subject to Chapter 551, Government Code.
102-23 (d) This section may not be construed to authorize or
102-24 entitle an electric cooperative corporation to issue bonds or other
102-25 securities that are exempt from taxation under federal law.
102-26 SECTION 2.26. Section 4A, Electric Cooperative Corporation
102-27 Act (Article 1528b, Vernon's Texas Civil Statutes), is amended to
103-1 read as follows:
103-2 Sec. 4A. Additional Powers. Notwithstanding any other
103-3 provision of this Act, a corporation has authority to generate,
103-4 manufacture, purchase, acquire, and accumulate electric energy and
103-5 to transmit, distribute, sell, furnish, and dispose of such
103-6 electric energy to the following entities if the same are engaged
103-7 in the generation, <and> transmission, or distribution of
103-8 electricity <for resale>:
103-9 (1) firms, associations, corporations<, except those
103-10 who meet the criteria for a small power production facility and/or
103-11 a cogeneration facility under Section 201 of the Public Utility
103-12 Regulatory Policies Act of 1978 (PURPA)>;
103-13 (2) federal agency;
103-14 (3) state or political subdivision of a state <with an
103-15 installed generation capacity in excess of 500 MW>; or
103-16 (4) a municipal power agency or political subdivision
103-17 of a state which is a co-owner with such corporation of a jointly
103-18 owned electric generation facility.
103-19 <A corporation may also sell, furnish, and dispose of the
103-20 electric energy to a political subdivision of the state which is
103-21 engaged in the generation, transmission, or distribution of
103-22 electricity for resale and to which the corporation was selling and
103-23 furnishing electric energy on December 31, 1982.>
103-24 The members-only requirement of Section 4(4) of this Act
103-25 shall continue to apply to all sales by a corporation to other
103-26 persons and entities.
103-27 SECTION 2.27. Section 171.079, Tax Code, is amended to read
104-1 as follows:
104-2 Sec. 171.079. EXEMPTION--ELECTRIC COOPERATIVE CORPORATION.
104-3 An electric cooperative corporation incorporated under the Electric
104-4 Cooperative Corporation Act (Article 1528b, Vernon's Texas Civil
104-5 Statutes) that is not a participant in a joint powers agency is
104-6 exempted from the franchise tax.
104-7 SECTION 2.28. (a) The Public Utility Commission of Texas by
104-8 rule shall adopt a statewide integrated resource planning process
104-9 as required by Section 2.051, Public Utility Regulatory Act of
104-10 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
104-11 Regular Session, 1995, and as amended by this Act, not later than
104-12 September 1, 1996.
104-13 (b) The changes in law made by this Act to Section 2.255,
104-14 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
104-15 Acts of the 74th Legislature, Regular Session, 1995, take effect
104-16 September 1, 1996, and apply only to an application for a
104-17 certificate of convenience and necessity filed on or after that
104-18 date, except that, in the case of a utility for which the
104-19 commission has not yet approved an individual integrated resource
104-20 plan as of September 1, 1996, an application for a certificate of
104-21 convenience and necessity is governed by the law in effect
104-22 immediately preceding the effective date of this Act until the
104-23 commission approves an integrated resource plan for the utility.
104-24 SECTION 2.29. The Public Utility Commission of Texas shall
104-25 adopt the initial rules required by Section 2.057, Public Utility
104-26 Regulatory Act of 1995, as added by this Act, not later than the
104-27 180th day after the effective date of this Act.
105-1 SECTION 2.30. An exempt wholesale generator or power
105-2 marketer required to register under Subsection (c), Section 2.053,
105-3 Public Utility Regulatory Act of 1995, as added by this Act, shall
105-4 register not later than the 90th day after the effective date of
105-5 this Act.
105-6 SECTION 2.31. Notwithstanding any other provision of the
105-7 Act, where a general rate case was initiated in 1994, the law in
105-8 effect when the complaint or petition was filed shall be continued
105-9 in effect for such a proceeding until the proceeding is concluded
105-10 by a final appealable decision.
105-11 SECTION 2.32. Except as otherwise provided by this Act, this
105-12 Act takes effect September 1, 1995.
105-13 SECTION 2.33. The importance of this legislation and the
105-14 crowded condition of the calendars in both houses create an
105-15 emergency and an imperative public necessity that the
105-16 constitutional rule requiring bills to be read on three several
105-17 days in each house be suspended, and this rule is hereby suspended,
105-18 and that this Act take effect and be in force according to its
105-19 terms, and it is so enacted.