1-1 By: Armbrister S.B. No. 373
1-2 (In the Senate - Filed March 10, 1995; March 14, 1995, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 18, 1995, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 13, Nays 0; April 18, 1995,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 373 By: Armbrister
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the continuation, operations, and functions of the
1-11 Public Utility Commission of Texas and the Office of Public Utility
1-12 Counsel; providing penalties.
1-13 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-14 ARTICLE 1
1-15 SECTION 1.01. Section 1.003, Public Utility Regulatory Act
1-16 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-17 Regular Session, 1995, is amended by adding Subdivisions (13A) and
1-18 (18) to read as follows:
1-19 (13A) "Ratemaking proceeding" means any proceeding
1-20 before a regulatory authority which may affect a rate as a direct
1-21 or indirect result of the proceeding.
1-22 (18) "Trade association" means a nonprofit,
1-23 cooperative, and voluntarily joined association of business or
1-24 professional persons who are employed by public utilities or
1-25 utility competitors to assist the public utility industry, a
1-26 utility competitor, or the industry's or competitor's employees in
1-27 dealing with mutual business or professional problems and in
1-28 promoting their common interest.
1-29 SECTION 1.02. Section 1.005, Public Utility Regulatory Act
1-30 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-31 Regular Session, 1995, is amended to read as follows:
1-32 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
1-33 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
1-34 to all proceedings under this Act except to the extent inconsistent
1-35 with this Act. Communications of members and employees of the
1-36 commission with a party, a party's representative, or other persons
1-37 are governed by Section 2001.061, Government Code.
1-38 (b) The commission is subject to Chapter 551, Government
1-39 Code.
1-40 SECTION 1.03. Subtitle A, Title I, Public Utility Regulatory
1-41 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
1-42 Legislature, Regular Session, 1995, is amended by adding Section
1-43 1.006 to read as follows:
1-44 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
1-45 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
1-46 utility competitor, or utility supplier is considered to be
1-47 affected in a manner other than by the setting of rates for that
1-48 class of customer if during a relevant calendar year the entity
1-49 provides fuel, utility-related goods, utility-related products, or
1-50 utility-related services to a regulated or unregulated provider of
1-51 telecommunications or electric services or to an affiliated
1-52 interest in an amount equal to the greater of $10,000 or 10 percent
1-53 of the person's business.
1-54 SECTION 1.04. Subsections (c) and (d), Section 1.021, Public
1-55 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
1-56 the 74th Legislature, Regular Session, 1995, are amended to read as
1-57 follows:
1-58 (c) The governor shall designate a member of the commission
1-59 as presiding officer of the commission to serve in that capacity at
1-60 the pleasure of the governor. <At its first meeting following the
1-61 biennial appointment and qualification of a commissioner, the
1-62 commission shall elect one of the commissioners chairman.>
1-63 (d) Appointments to the commission shall be made without
1-64 regard to the race, color, disability <creed>, sex, religion, age,
1-65 or national origin of the appointees.
1-66 SECTION 1.05. Section 1.022, Public Utility Regulatory Act
1-67 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-68 Regular Session, 1995, is amended to read as follows:
2-1 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
2-2 of Texas and the Office of Public Utility Counsel are subject to
2-3 Chapter 325, Government Code (Texas Sunset Act). Unless continued
2-4 in existence as provided by that chapter, the commission and the
2-5 office are abolished and this Act expires September 1, 2001 <1995>.
2-6 SECTION 1.06. Section 1.023, Public Utility Regulatory Act
2-7 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
2-8 Regular Session, 1995, is amended to read as follows:
2-9 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
2-10 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
2-11 a person must be a qualified voter, <not less than 30 years of
2-12 age,> a citizen of the United States, <and> a resident of the State
2-13 of Texas, and a representative of the general public.
2-14 (b) Each commissioner shall qualify for office by taking the
2-15 oath prescribed for other state officers <and shall execute a bond
2-16 for $5,000 payable to the state and conditioned on the faithful
2-17 performance of his duties>.
2-18 (c) A person is not eligible for appointment as a
2-19 commissioner if at any time during the two-year period immediately
2-20 preceding his appointment he personally served as an officer,
2-21 director, owner, employee, partner, or legal representative of any
2-22 public utility, <or any> affiliated interest, or direct competitor
2-23 of a public utility or he owned or controlled, directly or
2-24 indirectly, stocks or bonds of any class with a value of $10,000 or
2-25 more in a public utility, <or any> affiliated interest, or direct
2-26 competitor of a public utility.
2-27 (d) A person who is required to register as a lobbyist under
2-28 Chapter 305, Government Code, because of the person's activities
2-29 for compensation on behalf of a profession related to the operation
2-30 of the commission may not serve as a member of the commission or
2-31 public utility counsel or act as the general counsel to the
2-32 commission.
2-33 (e) A person is not eligible for appointment as a public
2-34 member of the commission or for employment as the general counsel
2-35 or executive director of the commission if:
2-36 (1) the person serves on the board of directors of a
2-37 company that supplies fuel, utility-related services, or
2-38 utility-related products to regulated or unregulated electric or
2-39 telecommunications utilities; or
2-40 (2) the person or the person's spouse:
2-41 (A) is employed by or participates in the
2-42 management of a business entity or other organization regulated by
2-43 the commission or receiving funds from the commission;
2-44 (B) owns or controls, directly or indirectly,
2-45 more than a 10 percent interest or a pecuniary interest with a
2-46 value exceeding $10,000 in:
2-47 (i) a business entity or other
2-48 organization regulated by the commission or receiving funds from
2-49 the commission; or
2-50 (ii) any utility competitor, utility
2-51 supplier, or other entity affected by a commission decision in a
2-52 manner other than by the setting of rates for that class of
2-53 customer;
2-54 (C) uses or receives a substantial amount of
2-55 tangible goods, services, or funds from the commission, other than
2-56 compensation or reimbursement authorized by law for commission
2-57 membership, attendance, or expenses; or
2-58 (D) notwithstanding Paragraph (B) of this
2-59 subdivision, has an interest in a mutual fund or retirement fund in
2-60 which more than 10 percent of the fund's holdings at the time of
2-61 appointment is in a single utility, utility competitor, or utility
2-62 supplier in this state and the person does not disclose this
2-63 information to the governor, senate, commission, or other entity,
2-64 as appropriate.
2-65 (f) Notwithstanding any other provision of this Act, a
2-66 person otherwise ineligible because of the application of
2-67 Subsection (e)(2)(B) of this section may be appointed to the
2-68 commission and serve as a commissioner or may be employed as the
2-69 general counsel or executive director if the person:
2-70 (1) notifies the attorney general and commission that
3-1 the person is ineligible because of the application of Subsection
3-2 (e)(2)(B) of this section; and
3-3 (2) divests the person or the person's spouse of the
3-4 ownership or control before beginning service or employment, or
3-5 within a reasonable time if the person is already serving or
3-6 employed at the time Subsection (e)(2)(B) of this section first
3-7 applies to the person.
3-8 (g) An officer, employee, or paid consultant of a trade
3-9 association in the field of public utilities may not be a member or
3-10 employee of the commission who is exempt from the state's position
3-11 classification plan or is compensated at or above the amount
3-12 prescribed by the General Appropriations Act for step 1, salary
3-13 group 17, of the position classification salary schedule.
3-14 (h) A person who is a spouse of an officer, manager, or paid
3-15 consultant of a trade association in the field of public utilities
3-16 may not be a commission member and may not be a commission employee
3-17 who is exempt from the state's position classification plan or is
3-18 compensated at or above the amount prescribed by the General
3-19 Appropriations Act for step 1, salary group 17, of the position
3-20 classification salary schedule.
3-21 SECTION 1.07. Subsections (a), (d), and (e), Section 1.024,
3-22 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
3-23 Acts of the 74th Legislature, Regular Session, 1995, are amended to
3-24 read as follows:
3-25 (a) A commissioner or employee of the commission may not do
3-26 any of the following during his period of service with the
3-27 commission:
3-28 (1) have any pecuniary interest, either as an officer,
3-29 director, partner, owner, employee, attorney, consultant, or
3-30 otherwise, in any public utility or affiliated interest, or in any
3-31 person or corporation or other business entity a significant
3-32 portion of whose business consists of furnishing goods or services
3-33 to public utilities or affiliated interests, but not including a
3-34 nonprofit group or association solely supported by gratuitous
3-35 contributions of money, property or services, other than a trade
3-36 association;
3-37 (2) own or control any securities in a public utility,
3-38 <or> affiliated interest, or direct competitor of a public utility,
3-39 either directly or indirectly; or
3-40 (3) accept any gift, gratuity, or entertainment
3-41 whatsoever from any public utility, <or> affiliated interest, or
3-42 direct competitor of a public utility, or from any person,
3-43 corporation, agent, representative, employee, or other business
3-44 entity a significant portion of whose business consists of
3-45 furnishing goods or services to public utilities, <or> affiliated
3-46 interests, or direct competitors of public utilities, or from any
3-47 agent, representative, attorney, employee, officer, owner,
3-48 director, or partner of any such business entity or of any public
3-49 utility, <or> affiliated interest, or direct competitor of a public
3-50 utility; provided, however, that the receipt and acceptance of any
3-51 gifts, gratuities, or entertainment after termination of service
3-52 with the commission whose cumulative value in any one-year period
3-53 is less than $100 does not constitute a violation of this Act.
3-54 (d) A public utility, <or> affiliated interest, or direct
3-55 competitor of a public utility, or any person, corporation, firm,
3-56 association, or business that furnishes goods or services to any
3-57 public utility, <or> affiliated interest, or direct competitor of a
3-58 public utility, or any agent, representative, attorney, employee,
3-59 officer, owner, director, or partner of any public utility, <or>
3-60 affiliated interest, or direct competitor of a public utility, or
3-61 any person, corporation, firm, association, or business furnishing
3-62 goods or services to any public utility, <or> affiliated interest,
3-63 or direct competitor of a public utility may not give or offer to
3-64 give any gift, gratuity, employment, or entertainment whatsoever to
3-65 any member or employee of the commission except as allowed by
3-66 Subdivision (3) of Subsection (a) of this section, nor may any such
3-67 public utility, <or> affiliated interest, or direct competitor of a
3-68 public utility or any such person, corporation, firm, association,
3-69 or business aid, abet, or participate with any member, employee, or
3-70 former employee of the commission in any activity or conduct that
4-1 would constitute a violation of this subsection or Subdivision (3)
4-2 of Subsection (a) of this section.
4-3 (e) It is not a violation of this section if a member of the
4-4 commission or a person employed by the commission, upon becoming
4-5 the owner of any stocks or bonds or other pecuniary interest in a
4-6 public utility, <or> affiliated interest, or direct competitor of a
4-7 public utility <under the jurisdiction of the commission> otherwise
4-8 than voluntarily, informs the commission and the attorney general
4-9 of such ownership and divests himself of the ownership or interest
4-10 within a reasonable time. In this section, a "pecuniary interest"
4-11 includes income, compensation, and payment of any kind, in addition
4-12 to ownership interests. It is not a violation of this section if
4-13 such a pecuniary interest is held indirectly by ownership of an
4-14 interest in a retirement system, institution, or fund which in the
4-15 normal course of business invests in diverse securities
4-16 independently of the control of the commissioner or employee.
4-17 SECTION 1.08. Section 1.025, Public Utility Regulatory Act
4-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
4-19 Regular Session, 1995, is amended to read as follows:
4-20 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
4-21 (a) A commissioner may not within two years, and an employee of
4-22 the commission or an employee of the State Office of Administrative
4-23 Hearings involved in hearing utility cases may not, within one year
4-24 after his employment with the commission or the State Office of
4-25 Administrative Hearings has ceased, be employed by:
4-26 (1) a public utility or affiliate which was in the
4-27 scope of the commissioner's or employee's official responsibility
4-28 while the commissioner or employee was associated with the
4-29 commission or the State Office of Administrative Hearings; or
4-30 (2) a utility competitor or other entity affected in a
4-31 manner other than by the setting of rates for that class of
4-32 customer.
4-33 (b) During the time a commissioner or employee of the
4-34 commission or an employee of the State Office of Administrative
4-35 Hearings involved in hearing utility cases is associated with the
4-36 commission or State Office of Administrative Hearings or at any
4-37 time after, the commissioner or employee may not represent a
4-38 person, corporation, or other business entity before the commission
4-39 or State Office of Administrative Hearings or a court in a matter
4-40 in which the commissioner or employee was personally involved while
4-41 associated with the commission or State Office of Administrative
4-42 Hearings or a matter that was within the commissioner's or
4-43 employee's official responsibility while the commissioner or
4-44 employee was associated with the commission or State Office of
4-45 Administrative Hearings.
4-46 (c) The commission shall require its members and employees
4-47 to read this section and Section 1.024 of this Act and as often as
4-48 necessary shall provide information regarding their qualifications
4-49 for office or employment under this Act and their responsibilities
4-50 under applicable laws relating to standards of conduct for state
4-51 officers and employees.
4-52 SECTION 1.09. Section 1.026, Public Utility Regulatory Act
4-53 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
4-54 Regular Session, 1995, is amended to read as follows:
4-55 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
4-56 (a) It is a ground for removal from the commission if a member:
4-57 (1) does not have at the time of appointment the
4-58 qualifications required by Section 1.023 of this Act <for
4-59 appointment to the commission>; <or>
4-60 (2) does not maintain during <the> service on the
4-61 commission the qualifications required by Section 1.023 of this
4-62 Act;
4-63 (3) violates a prohibition established by Section
4-64 1.023, 1.024, or 1.025 of this Act;
4-65 (4) cannot discharge the member's duties for a
4-66 substantial part of the term for which the member is appointed
4-67 because of illness or disability; or
4-68 (5) is absent from more than half of the regularly
4-69 scheduled commission meetings that the member is eligible to attend
4-70 during a calendar year unless the absence is excused by majority
5-1 vote of <for appointment to> the commission.
5-2 (b) The validity of an action of the commission is not
5-3 affected by the fact that it is <was> taken when a ground for
5-4 removal of a commission member exists <of the commission existed>.
5-5 (c) If the executive director has knowledge that a potential
5-6 ground for removal exists, the executive director shall notify the
5-7 presiding officer of the commission of the potential ground. The
5-8 presiding officer shall then notify the governor and the attorney
5-9 general that a potential ground for removal exists. If the
5-10 potential ground for removal involves the presiding officer of the
5-11 commission, the executive director shall notify the next highest
5-12 officer of the commission, who shall notify the governor and the
5-13 attorney general that a potential ground for removal exists.
5-14 (d) Before a member of the commission may assume the
5-15 member's duties and before the member may be confirmed by the
5-16 senate, the member must complete at least one course of the
5-17 training program established under this section.
5-18 (e) A training program established under this section shall
5-19 provide information to the member regarding:
5-20 (1) the enabling legislation that created the
5-21 commission and its policymaking body to which the member is
5-22 appointed to serve;
5-23 (2) the programs operated by the commission;
5-24 (3) the role and functions of the commission;
5-25 (4) the rules of the commission with an emphasis on
5-26 the rules that relate to disciplinary and investigatory authority;
5-27 (5) the current budget for the commission;
5-28 (6) the results of the most recent formal audit of the
5-29 commission;
5-30 (7) the requirements of Chapters 551, 552, and 2001,
5-31 Government Code;
5-32 (8) the requirements of the conflict of interest laws
5-33 and other laws relating to public officials; and
5-34 (9) any applicable ethics policies adopted by the
5-35 commission or the Texas Ethics Commission.
5-36 SECTION 1.10. Subsections (a), (b), and (e), Section 1.028,
5-37 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
5-38 Acts of the 74th Legislature, Regular Session, 1995, are amended to
5-39 read as follows:
5-40 (a) The commission shall employ an executive director, a
5-41 general counsel, and such officers<, administrative law judges,
5-42 hearing examiners, investigators, lawyers, engineers, economists,
5-43 consultants, statisticians, accountants, administrative assistants,
5-44 inspectors, clerical staff,> and other employees as it deems
5-45 necessary to carry out the provisions of this Act. All employees
5-46 receive such compensation as is fixed by the legislature. The
5-47 commission shall develop and implement policies that clearly define
5-48 the respective responsibilities of the commission and the staff of
5-49 the commission.
5-50 (b) The executive director is responsible for the day-to-day
5-51 operations of the commission and shall coordinate the activities of
5-52 commission employees <commission shall employ the following:>
5-53 <(1) an executive director;>
5-54 <(2) a director of hearings who has wide experience in
5-55 utility regulation and rate determination;>
5-56 <(3) a chief engineer who is a registered engineer and
5-57 an expert in public utility engineering and rate matters;>
5-58 <(4) a chief accountant who is a certified public
5-59 accountant, experienced in public utility accounting;>
5-60 <(5) a director of research who is experienced in the
5-61 conduct of analyses of industry, economics, energy, fuel, and other
5-62 related matters that the commission may want to undertake;>
5-63 <(6) a director of consumer affairs and public
5-64 information;>
5-65 <(7) a director of utility evaluation;>
5-66 <(8) a director of energy conservation; and>
5-67 <(9) a general counsel.>
5-68 <(e) The commission shall employ administrative law judges
5-69 to preside at hearings of major importance before the commission.
5-70 An administrative law judge must be a licensed attorney with not
6-1 less than five years' general experience or three years' experience
6-2 in utility regulatory law. The administrative law judge shall
6-3 perform his duties independently from the commission>.
6-4 SECTION 1.11. Section 1.029, Public Utility Regulatory Act
6-5 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
6-6 Regular Session, 1995, is amended to read as follows:
6-7 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
6-8 or the executive director's <his> designee shall develop an
6-9 intra-agency career ladder program that addresses opportunities for
6-10 mobility and advancement for employees of the commission. The
6-11 program shall require intra-agency posting of all positions
6-12 concurrently with<, one part of which shall be the intra-agency
6-13 posting of all nonentry level positions for at least 10 days
6-14 before> any public posting. The executive director or the
6-15 executive director's <his> designee shall develop a system of
6-16 annual performance evaluations that are based on documented
6-17 employee performance <measurable job tasks>. All merit pay for
6-18 commission employees must be based on the system established under
6-19 this section.
6-20 (b) The executive director or the executive director's
6-21 <his/her> designee shall prepare and maintain a written policy
6-22 statement <plan> to assure implementation of a program of equal
6-23 employment opportunity under which <whereby> all personnel
6-24 transactions are made without regard to race, color, disability,
6-25 sex, religion, age, or national origin. The policy statement must
6-26 <plan shall> include:
6-27 (1) personnel policies that comply with Chapter 21,
6-28 Labor Code, including policies relating to recruitment, evaluation,
6-29 selection, appointment, training, and promotion of personnel;
6-30 (2) a comprehensive analysis of the commission
6-31 workforce that meets federal and state guidelines;
6-32 (3) procedures by which a determination can be made
6-33 about the extent of underuse in the commission workforce of all
6-34 persons for whom federal or state guidelines encourage a more
6-35 equitable balance; and
6-36 (4) reasonable methods to appropriately address the
6-37 underuse. <a comprehensive analysis of all the agency's workforce
6-38 by race, sex, ethnic origin, class of position, and salary or wage;>
6-39 <(2) plans for recruitment, evaluation, selection,
6-40 appointment, training, promotion, and other personnel policies;>
6-41 <(3) steps reasonably designed to overcome any
6-42 identified underutilization of minorities and women in the agency's
6-43 workforce; and>
6-44 <(4) objectives and goals, timetables for the
6-45 achievement of the objectives and goals, and assignments of
6-46 responsibility for their achievement.>
6-47 (c) The policy statement <plan> required under Subsection
6-48 (b) of this section must <shall be filed with the governor's office
6-49 within 60 days of the effective date of this Act,> cover an annual
6-50 period, <and> be updated at least annually and reviewed by the
6-51 Commission on Human Rights for compliance with Subsection (b)(1) of
6-52 this section, and<. Progress reports shall> be filed with
6-53 <submitted to> the governor's office <within 30 days of November 1
6-54 and April 1 of each year and shall include the steps the agency has
6-55 taken within the reporting period to comply with these
6-56 requirements>.
6-57 (d) The governor's office shall deliver a biennial report to
6-58 the legislature based on the information received under Subsection
6-59 (c) of this section. The report may be made separately or as a
6-60 part of other biennial reports made to the legislature.
6-61 SECTION 1.12. Section 1.031, Public Utility Regulatory Act
6-62 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
6-63 Regular Session, 1995, is amended to read as follows:
6-64 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
6-65 the commission shall be located in the City of Austin, Texas, and
6-66 shall be open daily during the usual business hours, Saturdays,
6-67 Sundays, and legal holidays excepted. The commission shall hold
6-68 meetings at its office and at such other convenient places in the
6-69 state as shall be expedient and necessary for the proper
6-70 performance of its duties.
7-1 (b) The commission shall develop and implement policies that
7-2 provide the public with a reasonable opportunity to appear before
7-3 the commission and to speak on any issue under the jurisdiction of
7-4 the commission.
7-5 SECTION 1.13. Subsection (a), Section 1.035, Public Utility
7-6 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
7-7 74th Legislature, Regular Session, 1995, is amended to read as
7-8 follows:
7-9 (a) The commission shall prepare annually a complete and
7-10 detailed written report accounting for all funds received and
7-11 disbursed by the commission during the preceding fiscal year. The
7-12 annual report must meet the reporting requirements applicable to
7-13 financial reporting in the General Appropriations Act <publish an
7-14 annual report to the governor, summarizing its proceedings, listing
7-15 its receipts and the sources of its receipts, listing its
7-16 expenditures and the nature of such expenditures, and setting forth
7-17 such other information concerning the operations of the commission
7-18 and the public utility industry as it considers of general
7-19 interest>.
7-20 SECTION 1.14. Section 1.036, Public Utility Regulatory Act
7-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
7-22 Regular Session, 1995, is amended to read as follows:
7-23 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
7-24 commission shall prepare information of public <consumer> interest
7-25 describing the <regulatory> functions of the commission and
7-26 <describing> the commission's procedures by which <consumer>
7-27 complaints are filed with and resolved by the commission. The
7-28 commission shall make the information available to the <general>
7-29 public and appropriate state agencies.
7-30 (b) The commission by rule shall establish methods by which
7-31 consumers and service recipients are notified of the name, mailing
7-32 address, and telephone number of the commission for the purpose of
7-33 directing complaints to the commission.
7-34 (c) The commission shall comply with federal and state laws
7-35 related to program and facility accessibility. The commission
7-36 shall also prepare and maintain a written plan that describes how a
7-37 person who does not speak English can be provided reasonable access
7-38 to the commission's programs and services.
7-39 SECTION 1.15. Section 1.051, Public Utility Regulatory Act
7-40 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
7-41 Regular Session, 1995, is amended to read as follows:
7-42 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
7-43 independent Office of Public Utility Counsel represents the
7-44 interests of residential and small commercial consumers.
7-45 (b) The chief executive of the office <Office of Public
7-46 Utility Counsel> is the public utility counsel, hereinafter
7-47 referred to as counsellor. The counsellor is appointed by the
7-48 governor with the advice and consent of the senate to a two-year
7-49 term that expires on February 1 of the final year of the term.
7-50 Appointment of the counsellor shall be made without regard to the
7-51 race, color, disability, sex, religion, age, or national origin of
7-52 the appointee.
7-53 (c) The counsellor shall be a resident of Texas and admitted
7-54 to the practice of law in this state who has demonstrated a strong
7-55 commitment and involvement in efforts to safeguard the rights of
7-56 the public and possesses the knowledge and experience necessary to
7-57 practice effectively in utility proceedings.
7-58 (d) A person is not eligible for appointment as counsellor
7-59 if the person or the person's spouse:
7-60 (1) is employed by or participates in the management
7-61 of a business entity or other organization regulated by the
7-62 commission or receiving funds from the commission;
7-63 (2) owns or controls, directly or indirectly, more
7-64 than a 10 percent interest or a pecuniary interest with a value
7-65 exceeding $10,000 in:
7-66 (A) a business entity or other organization
7-67 regulated by the commission or receiving funds from the commission
7-68 or the office; or
7-69 (B) any utility competitor, utility supplier, or
7-70 other entity affected by a commission decision in a manner other
8-1 than by the setting of rates for that class of customer;
8-2 (3) uses or receives a substantial amount of tangible
8-3 goods, services, or funds from the commission or the office, other
8-4 than compensation or reimbursement authorized by law for counsellor
8-5 or commission membership, attendance, or expenses; or
8-6 (4) notwithstanding Subdivision (2) of this
8-7 subsection, has an interest in a mutual fund or retirement fund in
8-8 which more than 10 percent of the fund's holdings is in a single
8-9 utility, utility competitor, or utility supplier in this state and
8-10 the person does not disclose this information to the governor,
8-11 senate, or other entity, as appropriate.
8-12 (e) A person may not serve as counsellor or act as the
8-13 general counsel for the office if the person is required to
8-14 register as a lobbyist under Chapter 305, Government Code, because
8-15 of the person's activities for compensation related to the
8-16 operation of the commission or the office.
8-17 (f) An officer, employee, or paid consultant of a trade
8-18 association in the field of public utilities may not serve as
8-19 counsellor or be an employee of the office who is exempt from the
8-20 state's position classification plan or is compensated at or above
8-21 the amount prescribed by the General Appropriations Act for step 1,
8-22 salary group 17, of the position classification salary schedule. A
8-23 person who is the spouse of an officer, manager, or paid consultant
8-24 of a trade association in the field of public utilities may not
8-25 serve as counsellor and may not be an office employee who is exempt
8-26 from the state's position classification plan or is compensated at
8-27 or above the amount prescribed by the General Appropriations Act
8-28 for step 1, salary group 17, of the position classification salary
8-29 schedule.
8-30 (g) Notwithstanding any other provision of this Act, a
8-31 person otherwise ineligible because of the application of
8-32 Subsection (d)(2) of this section may be appointed as counsellor
8-33 and may serve as counsellor if the person:
8-34 (1) notifies the attorney general and commission that
8-35 the person is ineligible because of the application of Subsection
8-36 (d)(2) of this section; and
8-37 (2) divests the person or the person's spouse of the
8-38 ownership or control before appointment, or within a reasonable
8-39 time if the person is already serving at the time Subsection (d)(2)
8-40 of this section first applies to the person.
8-41 SECTION 1.16. Subtitle C, Title I, Public Utility Regulatory
8-42 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
8-43 Legislature, Regular Session, 1995, is amended by adding Section
8-44 1.0511 to read as follows:
8-45 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
8-46 removal from office if the counsellor:
8-47 (1) does not have at the time of appointment the
8-48 qualifications required by Section 1.051 of this Act;
8-49 (2) does not maintain during service as counsellor the
8-50 qualifications required by Section 1.051 of this Act;
8-51 (3) violates a prohibition established by Section
8-52 1.051 or 1.0512 of this Act; or
8-53 (4) cannot discharge the counsellor's duties for a
8-54 substantial part of the term for which the counsellor is appointed
8-55 because of illness or disability.
8-56 (b) The validity of an action of the office is not affected
8-57 by the fact that it is taken when a ground for removal of the
8-58 counsellor exists.
8-59 SECTION 1.17. Subtitle C, Title I, Public Utility Regulatory
8-60 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
8-61 Legislature, Regular Session, 1995, is amended by adding Section
8-62 1.0512 to read as follows:
8-63 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
8-64 (a) The counsellor may not within two years, and an employee of
8-65 the office may not, within one year after his employment with the
8-66 office has ceased, be employed by a public utility which was in the
8-67 scope of the counsellor's or employee's official responsibility
8-68 while the counsellor or employee was associated with the office.
8-69 (b) During the time the counsellor or an employee of the
8-70 office is associated with the office or at any time after, the
9-1 counsellor or employee may not represent a person, corporation, or
9-2 other business entity before the commission or a court in a matter
9-3 in which the counsellor or employee was personally involved while
9-4 associated with the office or a matter that was within the
9-5 counsellor's or employee's official responsibility while the
9-6 counsellor or employee was associated with the office.
9-7 SECTION 1.18. Subtitle C, Title I, Public Utility Regulatory
9-8 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
9-9 Legislature, Regular Session, 1995, is amended by adding Section
9-10 1.0513 to read as follows:
9-11 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
9-12 shall prepare annually a complete and detailed written report
9-13 accounting for all funds received and disbursed by the office
9-14 during the preceding fiscal year. The annual report must meet the
9-15 reporting requirements applicable to financial reporting provided
9-16 in the General Appropriations Act.
9-17 (b) The office shall prepare information of public interest
9-18 describing the functions of the office. The office shall make the
9-19 information available to the public and appropriate state agencies.
9-20 (c) The office shall comply with federal and state laws
9-21 related to program and facility accessibility. The office shall
9-22 also prepare and maintain a written plan that describes how a
9-23 person who does not speak English can be provided reasonable access
9-24 to the office's programs and services.
9-25 SECTION 1.19. Section 1.052, Public Utility Regulatory Act
9-26 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-27 Regular Session, 1995, is amended to read as follows:
9-28 Sec. 1.052. INTEREST PROHIBITED. During the period of the
9-29 counsellor's employment and for a period of two years following the
9-30 termination of employment, it shall be unlawful for any person
9-31 employed as counsellor to have a direct or indirect interest in any
9-32 utility company regulated under this Act, to provide legal services
9-33 directly or indirectly to or be employed in any capacity by a
9-34 utility company regulated under this Act, its parent, or its
9-35 subsidiary companies, corporations, or cooperatives or a utility
9-36 competitor, utility supplier, or other entity affected in a manner
9-37 other than by the setting of rates for that class of customer; but
9-38 such person may otherwise engage in the private practice of law
9-39 after the termination of employment as counsellor.
9-40 SECTION 1.20. Section 1.053, Public Utility Regulatory Act
9-41 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-42 Regular Session, 1995, is amended to read as follows:
9-43 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
9-44 lawyers, economists, engineers, consultants, statisticians,
9-45 accountants, clerical staff, and other employees as he or she deems
9-46 necessary to carry out the provisions of this section. All
9-47 employees shall receive such compensation as is fixed by the
9-48 legislature from the assessment imposed by Section 1.351 of this
9-49 Act.
9-50 (b) The counsellor or the counsellor's designee shall
9-51 develop an intra-agency career ladder program that addresses
9-52 opportunities for mobility and advancement for employees within the
9-53 commission. The program shall require intra-agency postings of all
9-54 positions concurrently with any public posting. The counsellor or
9-55 the counsellor's designee shall develop a system of annual
9-56 performance evaluations that are based on documented employee
9-57 performance. All merit pay for office employees must be based on
9-58 the system established under this subsection. The counsellor or
9-59 the counsellor's designee shall provide to the public utility
9-60 counsel and its employees, as often as necessary, information
9-61 regarding their qualification for office or employment under this
9-62 Act and their responsibilities under applicable laws relating to
9-63 standards of conduct for state officers or employees.
9-64 (c) The counsellor or the counsellor's designee shall
9-65 prepare and maintain a written policy statement to assure
9-66 implementation of a program of equal employment opportunity under
9-67 which all personnel transactions are made without regard to race,
9-68 color, disability, sex, religion, age, or national origin. The
9-69 policy statement must include:
9-70 (1) personnel policies that comply with Chapter 21,
10-1 Labor Code, including policies relating to recruitment, evaluation,
10-2 selection, appointment, training, and promotion of personnel;
10-3 (2) a comprehensive analysis of the office workforce
10-4 that meets federal and state guidelines;
10-5 (3) procedures by which a determination can be made
10-6 about the extent of underuse in the office workforce of all persons
10-7 for whom federal or state guidelines encourage a more equitable
10-8 balance; and
10-9 (4) reasonable methods to appropriately address the
10-10 underuse.
10-11 (d) A policy statement prepared under Subsection (c) of this
10-12 section must cover an annual period, be updated at least annually
10-13 and reviewed by the Commission on Human Rights for compliance with
10-14 Subsection (c)(1) of this section, and be filed with the governor's
10-15 office. The governor's office shall deliver a biennial report to
10-16 the legislature based on the information received under this
10-17 subsection. The report may be made separately or as a part of
10-18 other biennial reports made to the legislature.
10-19 (e) The office shall provide to its employees, as often as
10-20 necessary, information regarding their qualification for office or
10-21 employment under this Act and their responsibilities under
10-22 applicable laws relating to standards of conduct for state officers
10-23 or employees.
10-24 SECTION 1.21. Section 1.054, Public Utility Regulatory Act
10-25 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-26 Regular Session, 1995, is amended to read as follows:
10-27 Sec. 1.054. POWERS AND DUTIES. (a) The Office of Public
10-28 Utility Counsel:
10-29 (1) shall assess the impact of utility rate changes
10-30 and other regulatory actions on residential consumers in the State
10-31 of Texas and shall be an advocate in its own name of positions most
10-32 advantageous to a substantial number of such consumers as
10-33 determined by the counsellor;
10-34 (2) may appear or intervene as a matter of right as a
10-35 party or otherwise on behalf of residential consumers, as a class,
10-36 in all proceedings before the commission;
10-37 (3) may appear or intervene as a matter of right as a
10-38 party or otherwise on behalf of small commercial consumers, as a
10-39 class, in all proceedings where it is deemed by the counsellor that
10-40 small commercial consumers are in need of representation;
10-41 (4) may initiate or intervene as a matter of right or
10-42 otherwise appear in any judicial proceedings involving or arising
10-43 out of any action taken by an administrative agency in a proceeding
10-44 in which the counsellor was authorized to appear;
10-45 (5) may have access as any party, other than staff, to
10-46 all records gathered by the commission under the authority of
10-47 Subsection (a) of Section 1.203 of this Act;
10-48 (6) may obtain discovery of any nonprivileged matter
10-49 which is relevant to the subject matter involved in any proceeding
10-50 or petition before the commission;
10-51 (7) may represent individual residential and small
10-52 commercial consumers with respect to their disputed complaints
10-53 concerning utility services unresolved before the commission; and
10-54 (8) may recommend legislation to the legislature which
10-55 in its judgment would positively affect the interests of
10-56 residential and small commercial consumers.
10-57 (b) Nothing in this section shall be construed as in any way
10-58 limiting the authority of the commission to represent residential
10-59 or small commercial consumers.
10-60 (c) The appearance of the counsellor in any proceeding in no
10-61 way precludes the appearance of other parties on behalf of
10-62 residential ratepayers or small commercial consumers. The
10-63 counsellor may not be grouped with any other parties.
10-64 SECTION 1.22. Section 1.101, Public Utility Regulatory Act
10-65 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-66 Regular Session, 1995, is amended to read as follows:
10-67 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
10-68 (a) The commission has the general power to regulate and supervise
10-69 the business of every public utility within its jurisdiction and to
10-70 do all things, whether specifically designated in this Act or
11-1 implied herein, necessary and convenient to the exercise of this
11-2 power and jurisdiction.
11-3 (b) The commission shall make and enforce rules reasonably
11-4 required in the exercise of its powers and jurisdiction, including
11-5 rules governing practice and procedure before the commission and,
11-6 as applicable, practice and procedure before the utility division
11-7 of the State Office of Administrative Hearings. The commission
11-8 shall adopt rules authorizing an administrative law judge to:
11-9 (1) limit the amount of time that a party may have to
11-10 present its case;
11-11 (2) limit the number of requests for information that
11-12 a party may make in a contested case;
11-13 (3) require a party to a contested case to identify
11-14 contested issues and facts before the hearing begins and to limit
11-15 cross-examination to only those issues and facts and to any new
11-16 issues that may arise as a result of the discovery process; or
11-17 (4) group parties, other than the office, that have
11-18 the same position on an issue to facilitate cross-examination on
11-19 that issue, provided that each party in a group is entitled to
11-20 present that party's witnesses for cross-examination during the
11-21 hearing.
11-22 (c) Rules adopted under Subsection (b) of this section must
11-23 ensure that all parties receive due process.
11-24 (d) The commission may call and hold hearings, administer
11-25 oaths, receive evidence at hearings, issue subpoenas to compel the
11-26 attendance of witnesses and the production of papers and documents,
11-27 and make findings of fact and decisions with respect to
11-28 administering the provisions of this Act or the rules, orders, or
11-29 other actions of the commission.
11-30 (e) Hearings in contested cases not conducted by one or more
11-31 commissioners shall be conducted by the utility division of the
11-32 State Office of Administrative Hearings. The <(d) Notwithstanding
11-33 any other provision of this Act or other law, in proceedings other
11-34 than those involving major rate changes, the> commission may
11-35 delegate to the utility division of the State Office of
11-36 Administrative Hearings <an administrative law judge or hearings
11-37 examiner> the authority to make a final decision and to issue
11-38 findings of fact, conclusions of law, and other necessary orders in
11-39 a proceeding in which there is no contested issue of fact or law.
11-40 The commission by rule shall define the procedures by which it
11-41 delegates final decision-making authority authorized by this
11-42 section. For review purposes the final decision of the
11-43 administrative law judge <or hearings examiner> has the same effect
11-44 as a final decision of the commission unless a commissioner
11-45 requests formal review of the decision.
11-46 SECTION 1.23. Subsection (b), Section 1.102, Public Utility
11-47 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
11-48 74th Legislature, Regular Session, 1995, is amended to read as
11-49 follows:
11-50 (b) The commission may audit each utility under the
11-51 jurisdiction of the commission as frequently as needed<, but shall
11-52 audit each utility at least once every 10 years>. Six months after
11-53 any audit, the utility shall report to the commission on the status
11-54 of the implementation of the recommendations of the audit and shall
11-55 file subsequent reports at such times as the commission deems
11-56 appropriate.
11-57 SECTION 1.24. Subtitle D, Title I, Public Utility Regulatory
11-58 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
11-59 Legislature, Regular Session, 1995, is amended by adding Section
11-60 1.104 to read as follows:
11-61 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
11-62 adopt procedures governing the use of settlements to resolve
11-63 contested cases.
11-64 (b) The rules shall ensure that:
11-65 (1) each party retains the right to:
11-66 (A) have a full hearing before the commission on
11-67 issues that remain in dispute; and
11-68 (B) judicial review of issues that remain in
11-69 dispute;
11-70 (2) an issue of fact raised by a nonsettling party
12-1 cannot be waived by a settlement or stipulation of the other
12-2 parties; and
12-3 (3) the nonsettling party may use the issue of fact
12-4 raised by that party as the basis for judicial review.
12-5 SECTION 1.25. Section 1.202, Public Utility Regulatory Act
12-6 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
12-7 Regular Session, 1995, is amended to read as follows:
12-8 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
12-9 have the power to:
12-10 (1) require that public utilities report to it such
12-11 information relating to themselves and affiliated interests both
12-12 within and without the State of Texas as it may consider useful in
12-13 the administration of this Act;
12-14 (2) establish forms for all reports;
12-15 (3) determine the time for reports and the frequency
12-16 with which any reports are to be made;
12-17 (4) require that any reports be made under oath;
12-18 (5) require that a copy of any contract or arrangement
12-19 between any public utility and any affiliated interest be filed
12-20 with it. It may require any such contract or arrangement not in
12-21 writing to be reduced to writing and filed with it;
12-22 (6) require that a copy of any report filed with any
12-23 federal agency or any governmental agency or body of any other
12-24 state be filed with it; and
12-25 (7) require that a copy of annual reports showing all
12-26 payments of compensation (other than salary or wages subject to the
12-27 withholding of federal income tax) to residents of Texas, or with
12-28 respect to legal, administrative, or legislative matters in Texas,
12-29 or for representation before the Texas Legislature or any
12-30 governmental agency or body be filed with it.
12-31 (b) <The railroad commission shall have the power to review
12-32 and approve, for purposes of the Outer Continental Shelf Lands Act
12-33 Amendments of 1978 and any other federal authorities, applications
12-34 by gas utilities for the purchase of natural gas from producing
12-35 affiliates.>
12-36 <(c)> On the request of the governing body of any
12-37 municipality, the commission may provide sufficient staff members
12-38 to advise and consult with such municipality on any pending matter.
12-39 SECTION 1.26. Subsection (b), Section 1.251, Public Utility
12-40 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
12-41 74th Legislature, Regular Session, 1995, is amended to read as
12-42 follows:
12-43 (b) All transactions involving the sale of 50 percent or
12-44 more of the stock of a public utility shall also be reported to the
12-45 commission within a reasonable time. On the filing of a report
12-46 with the commission, the commission shall investigate the same with
12-47 or without public hearing to determine whether the action is
12-48 consistent with the public interest. In reaching its
12-49 determination, the commission shall take into consideration the
12-50 reasonable value of the property, facilities, or securities to be
12-51 acquired, disposed of, merged, transferred, or consolidated and
12-52 whether such a transaction will adversely affect the health or
12-53 safety of customers or employees, result in the transfer of jobs of
12-54 Texas citizens to workers domiciled outside the State of Texas, or
12-55 result in the decline of service, that the public utility will
12-56 receive consideration equal to the reasonable value of the assets
12-57 when it sells, leases, or transfers assets, and that the
12-58 transaction is consistent with the public interest.
12-59 SECTION 1.27. Section 1.271, Public Utility Regulatory Act
12-60 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
12-61 Regular Session, 1995, is amended to read as follows:
12-62 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
12-63 commission shall have jurisdiction over affiliated interests having
12-64 transactions with public utilities under the jurisdiction of the
12-65 commission to the extent of access to all accounts and records of
12-66 such affiliated interests relating to such transactions, including
12-67 but in no way limited to accounts and records of joint or general
12-68 expenses, any portion of which may be applicable to such
12-69 transactions. Any accounts or records obtained by the commission
12-70 related to sales of electrical energy at wholesale by an affiliated
13-1 interest to the public utility shall be confidential and not
13-2 subject to disclosure under Chapter 552, Government Code.
13-3 SECTION 1.28. Subtitle I, Title I, Public Utility Regulatory
13-4 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
13-5 Legislature, Regular Session, 1995, is amended by adding Section
13-6 1.3215 to read as follows:
13-7 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
13-8 may impose an administrative penalty against a person regulated
13-9 under this Act who violates this Act or a rule or order adopted
13-10 under this Act.
13-11 (b) The penalty for a violation may be in an amount not to
13-12 exceed $5,000. Each day a violation continues or occurs is a
13-13 separate violation for purposes of imposing a penalty.
13-14 (c) The amount of the penalty shall be based on:
13-15 (1) the seriousness of the violation, including the
13-16 nature, circumstances, extent, and gravity of any prohibited acts,
13-17 and the hazard or potential hazard created to the health, safety,
13-18 or economic welfare of the public;
13-19 (2) the economic harm to property or the environment
13-20 caused by the violation;
13-21 (3) the history of previous violations;
13-22 (4) the amount necessary to deter future violations;
13-23 (5) efforts to correct the violation; and
13-24 (6) any other matter that justice may require.
13-25 (d) If the executive director determines that a violation
13-26 has occurred, the executive director may issue to the commission a
13-27 report that states the facts on which the determination is based
13-28 and the director's recommendation on the imposition of a penalty,
13-29 including a recommendation on the amount of the penalty.
13-30 (e) Within 14 days after the date the report is issued, the
13-31 executive director shall give written notice of the report to the
13-32 person. The notice may be given by certified mail. The notice
13-33 must include a brief summary of the alleged violation and a
13-34 statement of the amount of the recommended penalty and must inform
13-35 the person that the person has a right to a hearing on the
13-36 occurrence of the violation, the amount of the penalty, or both the
13-37 occurrence of the violation and the amount of the penalty.
13-38 (f) Within 20 days after the date the person receives the
13-39 notice, the person in writing may accept the determination and
13-40 recommended penalty of the executive director or may make a written
13-41 request for a hearing on the occurrence of the violation, the
13-42 amount of the penalty, or both the occurrence of the violation and
13-43 the amount of the penalty.
13-44 (g) If the person accepts the determination and recommended
13-45 penalty of the executive director, the commission by order shall
13-46 approve the determination and impose the recommended penalty.
13-47 (h) If the person requests a hearing or fails to respond
13-48 timely to the notice, the executive director shall set a hearing
13-49 and give notice of the hearing to the person. The hearing shall be
13-50 held by an administrative law judge of the State Office of
13-51 Administrative Hearings. The administrative law judge shall make
13-52 findings of fact and conclusions of law and promptly issue to the
13-53 commission a proposal for a decision about the occurrence of the
13-54 violation and the amount of a proposed penalty. Based on the
13-55 findings of fact, conclusions of law, and proposal for a decision,
13-56 the commission by order may find that a violation has occurred and
13-57 impose a penalty or may find that no violation occurred.
13-58 (i) The notice of the commission's order given to the person
13-59 under Chapter 2001, Government Code, must include a statement of
13-60 the right of the person to judicial review of the order.
13-61 (j) Within 30 days after the date the commission's order is
13-62 final as provided by Section 2001.144, Government Code, the person
13-63 shall:
13-64 (1) pay the amount of the penalty;
13-65 (2) pay the amount of the penalty and file a petition
13-66 for judicial review contesting the occurrence of the violation, the
13-67 amount of the penalty, or both the occurrence of the violation and
13-68 the amount of the penalty; or
13-69 (3) without paying the amount of the penalty, file a
13-70 petition for judicial review contesting the occurrence of the
14-1 violation, the amount of the penalty, or both the occurrence of the
14-2 violation and the amount of the penalty.
14-3 (k) Within the 30-day period, a person who acts under
14-4 Subsection (j)(3) of this section may:
14-5 (1) stay enforcement of the penalty by:
14-6 (A) paying the amount of the penalty to the
14-7 court for placement in an escrow account; or
14-8 (B) giving to the court a supersedeas bond that
14-9 is approved by the court for the amount of the penalty and that is
14-10 effective until all judicial review of the commission's order is
14-11 final; or
14-12 (2) request the court to stay enforcement of the
14-13 penalty by:
14-14 (A) filing with the court a sworn affidavit of
14-15 the person stating that the person is financially unable to pay the
14-16 amount of the penalty and is financially unable to give the
14-17 supersedeas bond; and
14-18 (B) giving a copy of the affidavit to the
14-19 executive director by certified mail.
14-20 (l) The executive director, on receipt of a copy of an
14-21 affidavit under Subsection (k)(2) of this section, may file with
14-22 the court, within five days after the date the copy is received, a
14-23 contest to the affidavit. The court shall hold a hearing on the
14-24 facts alleged in the affidavit as soon as practicable and shall
14-25 stay the enforcement of the penalty on finding that the alleged
14-26 facts are true. The person who files an affidavit has the burden
14-27 of proving that the person is financially unable to pay the amount
14-28 of the penalty and to give a supersedeas bond.
14-29 (m) If the person does not pay the amount of the penalty and
14-30 the enforcement of the penalty is not stayed, the executive
14-31 director may refer the matter to the attorney general for
14-32 collection of the amount of the penalty.
14-33 (n) Judicial review of the order of the commission:
14-34 (1) is instituted by filing a petition as provided by
14-35 Subchapter G, Chapter 2001, Government Code; and
14-36 (2) is under the substantial evidence rule.
14-37 (o) If the court sustains the occurrence of the violation,
14-38 the court may uphold or reduce the amount of the penalty and order
14-39 the person to pay the full or reduced amount of the penalty. If
14-40 the court does not sustain the occurrence of the violation, the
14-41 court shall order that no penalty is owed.
14-42 (p) When the judgment of the court becomes final, the court
14-43 shall proceed under this subsection. If the person paid the amount
14-44 of the penalty and if that amount is reduced or is not upheld by
14-45 the court, the court shall order that the appropriate amount plus
14-46 accrued interest be remitted to the person. The rate of the
14-47 interest is the rate charged on loans to depository institutions by
14-48 the New York Federal Reserve Bank, and the interest shall be paid
14-49 for the period beginning on the date the penalty was paid and
14-50 ending on the date the penalty is remitted. If the person gave a
14-51 supersedeas bond and if the amount of the penalty is not upheld by
14-52 the court, the court shall order the release of the bond. If the
14-53 person gave a supersedeas bond and if the amount of the penalty is
14-54 reduced, the court shall order the release of the bond after the
14-55 person pays the amount.
14-56 (q) A penalty collected under this section shall be remitted
14-57 to the comptroller for deposit in the general revenue fund.
14-58 (r) All proceedings under this section are subject to
14-59 Chapter 2001, Government Code.
14-60 (s) The executive director may delegate to a person that the
14-61 executive director designates any power or duty given the executive
14-62 director by this section.
14-63 SECTION 1.29. Subsection (b), Section 1.351, Public Utility
14-64 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
14-65 74th Legislature, Regular Session, 1995, is amended to read as
14-66 follows:
14-67 (b) The legislature may <commission shall, subject to the
14-68 approval of the legislature,> adjust this assessment to provide a
14-69 level of income sufficient to fund the commission and the office of
14-70 public utility counsel.
15-1 SECTION 1.30. Section 1.354, Public Utility Regulatory Act
15-2 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
15-3 Regular Session, 1995, is amended to read as follows:
15-4 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
15-5 FUND. (a) All fees, penalties, and interest paid under the
15-6 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
15-7 shall be collected by the comptroller of public accounts and paid
15-8 into the general revenue fund. <The commission shall notify the
15-9 comptroller of public accounts of any adjustment of the assessment
15-10 imposed in Section 1.351 when made.>
15-11 (b) All money paid to the commission or to the office under
15-12 this Act is subject to Subchapter F, Chapter 404, Government Code.
15-13 SECTION 1.31. Section 1.355, Public Utility Regulatory Act
15-14 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
15-15 Regular Session, 1995, is amended to read as follows:
15-16 Sec. 1.355. GRANTS OF FEDERAL FUNDS. (a) The commission
15-17 may apply to any appropriate agency or officer of the United States
15-18 to receive and spend federal funds which it may obtain from grants
15-19 or other similar forms of financial assistance. Nothing in this
15-20 section shall inhibit the commission's ability to contract with or
15-21 otherwise receive assistance from any state, local, or other
15-22 authorized source of funds.
15-23 (b) Sections 403.094 and 403.095, Government Code, do not
15-24 apply to the special account established under this section.
15-25 <APPROVAL OF BUDGET. The budget of the commission shall be subject
15-26 to legislative approval as part of the appropriations act.>
15-27 SECTION 1.32. Subsections (a) and (b), Section 1.401, Public
15-28 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
15-29 the 74th Legislature, Regular Session, 1995, are amended to read as
15-30 follows:
15-31 (a) Any affected person may complain to the regulatory
15-32 authority in writing setting forth any act or thing done or omitted
15-33 to be done by any public utility in violation or claimed violation
15-34 of any law which the regulatory authority has jurisdiction to
15-35 administer or of any order, ordinance, rule, or regulation of the
15-36 regulatory authority. The commission shall keep <an> information
15-37 <file> about each complaint filed with the commission <relating to
15-38 a utility>. The commission shall retain the information <file> for
15-39 a reasonable period. The information shall include:
15-40 (1) the date the complaint is received;
15-41 (2) the name of the complainant;
15-42 (3) the subject matter of the complaint;
15-43 (4) a record of all persons contacted in relation to
15-44 the complaint;
15-45 (5) a summary of the results of the review or
15-46 investigation of the complaint; and
15-47 (6) for complaints for which the commission took no
15-48 action, an explanation of the reason the complaint was closed
15-49 without action.
15-50 (b) The commission shall keep a file about each <If a>
15-51 written complaint <is> filed with the commission. The commission
15-52 shall provide to the person filing the complaint and to the persons
15-53 or entities complained about the commission's policies and
15-54 procedures pertaining to complaint investigation and resolution.
15-55 The <relating to a utility, the> commission, at least <as
15-56 frequently as> quarterly and until final disposition of the
15-57 complaint, shall notify the person filing <parties to> the
15-58 complaint and each person or entity complained about of the status
15-59 of the complaint unless the notice would jeopardize an undercover
15-60 investigation.
15-61 SECTION 1.33. Subtitle K, Title I, Public Utility Regulatory
15-62 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
15-63 Legislature, Regular Session, 1995, is amended by adding Section
15-64 1.407 to read as follows:
15-65 Sec. 1.407. HISTORICALLY UNDERUTILIZED BUSINESSES. (a) The
15-66 commission by rule shall require each utility to make a good faith
15-67 effort to overcome the underuse of historically underutilized
15-68 businesses as shown for private industry by the disparity study
15-69 conducted under Chapter 684 (H.B. No. 2626), Acts of the 73rd
15-70 Legislature, 1993. The rules must take into account different
16-1 disparity ratios shown for different race and sex groups.
16-2 (b) The commission shall conduct further research and
16-3 analysis to adjust the results of the disparity study as necessary
16-4 to account for specific underuse of historically underutilized
16-5 businesses by the utility industry.
16-6 (c) The rules adopted under this section must require each
16-7 utility to prepare and submit to the commission a strategic plan
16-8 for use of historically underutilized businesses.
16-9 (d) In this section:
16-10 (1) "Historically underutilized business" means a
16-11 business entity at least 51 percent of which is owned by minority
16-12 group members, or in the case of a corporation, at least 51 percent
16-13 of the shares of which are owned, managed, and controlled by
16-14 minority group members.
16-15 (2) "Minority group members" include:
16-16 (A) African Americans;
16-17 (B) American Indians;
16-18 (C) Asian Americans;
16-19 (D) Mexican Americans and other Americans of
16-20 Hispanic origin; and
16-21 (E) women.
16-22 SECTION 1.34. Subchapter C, Chapter 2003, Government Code,
16-23 is amended by adding Section 2003.047 to read as follows:
16-24 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
16-25 establish a utility division to perform the contested case hearings
16-26 for the Public Utility Commission of Texas as prescribed by the
16-27 Public Utility Regulatory Act of 1995 and other applicable law.
16-28 (b) The utility division shall conduct hearings relating to
16-29 contested cases before the commission, other than a hearing
16-30 conducted by one or more commissioners. The commission by rule may
16-31 delegate the responsibility to hear any other matter before the
16-32 commission if consistent with the duties and responsibilities of
16-33 the division.
16-34 (c) Only an administrative law judge in the utility division
16-35 may conduct a hearing on behalf of the commission. An
16-36 administrative law judge in the utility division may conduct
16-37 hearings for other state agencies as time allows. The office may
16-38 transfer an administrative law judge into the division on a
16-39 temporary or permanent basis and may contract with qualified
16-40 individuals to serve as temporary administrative law judges as
16-41 necessary.
16-42 (d) To be eligible to preside at a hearing, an
16-43 administrative law judge, regardless of temporary or permanent
16-44 status, must be licensed to practice law in this state and have not
16-45 less than five years of general experience or three years of
16-46 experience in utility regulatory law.
16-47 (e) At the time the office receives jurisdiction of a
16-48 proceeding, the commission shall provide to the administrative law
16-49 judge a list of issues or areas that must be addressed. In
16-50 addition, the commission may identify and provide to the
16-51 administrative law judge at any time additional issues or areas
16-52 that must be addressed.
16-53 (f) The office and the commission shall jointly adopt rules
16-54 providing for certification to the commission of an issue that
16-55 involves an ultimate finding of compliance with or satisfaction of
16-56 a statutory standard the determination of which is committed to the
16-57 discretion or judgment of the commission by law. The rules must
16-58 address, at a minimum, the issues that are appropriate for
16-59 certification and the procedure to be used in certifying the issue.
16-60 Each agency shall publish the jointly adopted rules.
16-61 (g) Notwithstanding Section 2001.058, the commission may
16-62 change a finding of fact or conclusion of law made by the
16-63 administrative law judge or vacate or modify an order issued by the
16-64 administrative law judge only if the commission:
16-65 (1) determines that the administrative law judge:
16-66 (A) did not properly apply or interpret
16-67 applicable law, commission rules or policies, or prior
16-68 administrative decisions; or
16-69 (B) issued a finding of fact that is not
16-70 supported by a preponderance of the evidence; or
17-1 (2) determines that a commission policy or a prior
17-2 administrative decision on which the administrative law judge
17-3 relied is incorrect or should be changed.
17-4 (h) The commission shall state in writing the specific
17-5 reason and legal basis for its determination under Subsection (g).
17-6 (i) An administrative law judge, on the judge's own motion
17-7 or on motion of a party and after notice and an opportunity for a
17-8 hearing, may impose appropriate sanctions as provided by Subsection
17-9 (j) against a party or its representative for:
17-10 (1) filing a motion or pleading that is groundless and
17-11 brought:
17-12 (A) in bad faith;
17-13 (B) for the purpose of harassment; or
17-14 (C) for any other improper purpose, such as to
17-15 cause unnecessary delay or needless increase in the cost of the
17-16 proceeding;
17-17 (2) abuse of the discovery process in seeking, making,
17-18 or resisting discovery; or
17-19 (3) failure to obey an order of the administrative law
17-20 judge or the commission.
17-21 (j) A sanction imposed under Subsection (i) may include, as
17-22 appropriate and justified, issuance of an order:
17-23 (1) disallowing further discovery of any kind or of a
17-24 particular kind by the offending party;
17-25 (2) charging all or any part of the expenses of
17-26 discovery against the offending party or its representative;
17-27 (3) holding that designated facts be deemed admitted
17-28 for purposes of the proceeding;
17-29 (4) refusing to allow the offending party to support
17-30 or oppose a designated claim or defense or prohibiting the party
17-31 from introducing designated matters in evidence;
17-32 (5) disallowing in whole or in part requests for
17-33 relief by the offending party and excluding evidence in support of
17-34 such requests;
17-35 (6) punishing the offending party or its
17-36 representative for contempt to the same extent as a district court;
17-37 (7) requiring the offending party or its
17-38 representative to pay, at the time ordered by the administrative
17-39 law judge, the reasonable expenses, including attorney's fees,
17-40 incurred by other parties because of the sanctionable behavior; and
17-41 (8) striking pleadings or testimony, or both, in whole
17-42 or in part, or staying further proceedings until the order is
17-43 obeyed.
17-44 (k) Hearings conducted for the commission by the office
17-45 shall be held in hearing rooms provided by the commission. The
17-46 commission shall also provide the utility division access to its
17-47 computer systems, databases, and library resources.
17-48 (l) The office shall charge the commission a fixed annual
17-49 fee rather than an hourly rate for services rendered by the utility
17-50 division to the commission. The office and the commission shall
17-51 negotiate the amount of the fixed fee biennially, subject to the
17-52 approval of the governor, to coincide with the commission's
17-53 legislative appropriations request.
17-54 SECTION 1.35. (a) A task force is established to administer
17-55 the transfer of the hearings division from the Public Utility
17-56 Commission of Texas to the State Office of Administrative Hearings.
17-57 The task force is composed of:
17-58 (1) the governor or the governor's designee;
17-59 (2) the Legislative Budget Board or the board's
17-60 designee;
17-61 (3) the chairman of the Public Utility Commission of
17-62 Texas;
17-63 (4) the public utility counsel; and
17-64 (5) the chief administrative law judge of the State
17-65 Office of Administrative Hearings.
17-66 (b) The governor or the governor's designee is the presiding
17-67 officer of the task force.
17-68 (c) The task force shall:
17-69 (1) determine the personnel, equipment, data,
17-70 facilities, and other items that will be transferred under this Act
18-1 and the schedule for the transfers; and
18-2 (2) mediate and resolve disputes between the
18-3 respective agencies relating to a transfer.
18-4 (d) After the transfers have been completed, the task force
18-5 shall prepare a written report detailing the specifics of the
18-6 transfers and shall submit the report to the governor and the
18-7 legislature.
18-8 (e) In determining a transfer under this Act, the task force
18-9 shall ensure that the transfer does not adversely affect a
18-10 proceeding before the Public Utility Commission of Texas or the
18-11 rights of the parties to the proceeding.
18-12 (f) This section takes effect immediately.
18-13 SECTION 1.36. (a) On September 1, 1995, all personnel,
18-14 including hearings examiners and administrative law judges,
18-15 equipment, data, facilities, and other items of the hearings
18-16 division of the Public Utility Commission of Texas, other than the
18-17 personnel, equipment, data, facilities, and other items of the
18-18 central records office, are transferred to the utility division of
18-19 the State Office of Administrative Hearings. Until September 1,
18-20 1996, an employee transferred to the utility division may be
18-21 terminated or subject to salary reduction only for cause and only
18-22 in relation to poor performance or unacceptable conduct. A
18-23 hearings examiner transferred to the State Office of Administrative
18-24 Hearings becomes an administrative law judge on the date of
18-25 transfer.
18-26 (b) A hearings examiner or administrative law judge
18-27 transferred from the Public Utility Commission of Texas to the
18-28 State Office of Administrative Hearings shall continue to hear any
18-29 case assigned to the person as if the transfer had not occurred.
18-30 (c) The changes in law made by this Act that relate to the
18-31 procedures governing a hearing before the utility division of the
18-32 State Office of Administrative Hearings apply only to a case that
18-33 is filed on or after September 1, 1995. In addition, the
18-34 procedures prescribed by the provisions amended by this Act shall
18-35 continue to be used in a hearing as those provisions existed on
18-36 August 31, 1995. The former law is continued in effect for those
18-37 purposes.
18-38 (d) The Public Utility Commission of Texas is not required
18-39 by this Act or amendments made by this Act to adopt new rules
18-40 governing practice and procedure before the Public Utility
18-41 Commission of Texas or the utility division of the State Office of
18-42 Administrative Hearings. The rules in effect on the effective date
18-43 of this Act remain in effect until amended or repealed as required
18-44 by law. Any rules adopted after the effective date of this Act
18-45 governing practice and procedure before the utility division of the
18-46 State Office of Administrative Hearings must be adopted jointly by
18-47 that office and the commission.
18-48 SECTION 1.37. Section 1.3215, Public Utility Regulatory Act
18-49 of 1995, as added by this Act, applies only to a violation
18-50 committed on or after the effective date of this Act. A violation
18-51 committed before the effective date of this Act is governed by the
18-52 law in effect when the violation occurred, and that law is
18-53 continued in effect for that purpose.
18-54 SECTION 1.38. Section 1.104, Public Utility Regulatory Act
18-55 of 1995, as added by this Act, applies only to a proceeding for
18-56 which a final order has not been issued before the effective date
18-57 of this Act and does not apply to an electric utility merger
18-58 proceeding filed before January 1, 1995, in which a final order has
18-59 not been issued. Except as otherwise provided by this section, on
18-60 or after the effective date of this Act, the Public Utility
18-61 Commission of Texas may not approve a settlement unless the
18-62 settlement has been reached in accordance with rules adopted under
18-63 Section 1.104, Public Utility Regulatory Act of 1995, as added by
18-64 this Act.
18-65 SECTION 1.39. The changes in law made by this Act relating
18-66 to the requirements for membership on the Public Utility Commission
18-67 of Texas, to the requirements for service as public utility
18-68 counsel, or to employment as executive director or general counsel
18-69 of the commission apply only to a person appointed or hired, as
18-70 appropriate, on or after the effective date of this Act and do not
19-1 affect the entitlement of a member serving on the commission on
19-2 August 31, 1995, to continue to hold office for the remainder of
19-3 the term for which the person was appointed or the ability of a
19-4 person serving as public utility counsel, executive director, or
19-5 general counsel on August 31, 1995, to continue to hold that
19-6 position.
19-7 ARTICLE 2
19-8 SECTION 2.01. Subtitle A, Title II, Public Utility
19-9 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
19-10 74th Legislature, Regular Session, 1995, is amended by amending
19-11 Section 2.001 and adding Sections 2.0011 and 2.0012 to read as
19-12 follows:
19-13 Sec. 2.001. LEGISLATIVE POLICY AND PURPOSE. This title is
19-14 enacted to protect the public interest inherent in the rates and
19-15 services of public utilities. The legislature finds that public
19-16 utilities are by definition monopolies in many of the services they
19-17 provide and in many of the areas they serve, and that therefore the
19-18 normal forces of competition that operate to regulate prices in a
19-19 free enterprise society do not always operate, and that therefore
19-20 utility rates, operations, and services are regulated by public
19-21 agencies where competition does not operate, with the objective
19-22 that this regulation shall operate as a substitute for competition.
19-23 The purpose of this title is to establish a comprehensive
19-24 regulatory system that is adequate to the task of regulating public
19-25 utilities as defined in this title, to assure rates, operations,
19-26 and services that are just and reasonable to consumers and to the
19-27 utilities. Retail electric service maintains the attributes that
19-28 make regulation of monopolies appropriate. To promote the
19-29 development of a competitive wholesale electric market the public
19-30 interest warrants open transmission access for wholesale
19-31 transactions and allowing participation in the generation market by
19-32 certain nonutilities.
19-33 Sec. 2.0011. DEFINITIONS. In this title:
19-34 (1) "Public<, "public> utility" or "utility" means any
19-35 person, corporation, river authority, cooperative corporation, or
19-36 any combination thereof, other than a municipal corporation, or
19-37 their lessees, trustees, and receivers, now or hereafter owning or
19-38 operating for compensation in this state equipment or facilities
19-39 for producing, generating, transmitting, distributing, selling, or
19-40 furnishing electricity in this state (hereinafter "electric
19-41 utility"); provided, however, that this definition may not be
19-42 construed to apply to or include a qualifying facility <small power
19-43 producer or qualifying cogenerator, as defined in Sections 3(17)(D)
19-44 and 3(18)(C) of the Federal Power Act, as amended (16 U.S.C.
19-45 Sections 796(17)(D) and 796(18)(C))>. The term does not include an
19-46 exempt wholesale generator, a power marketer, or a corporation as
19-47 prescribed by Section 2.0012 of this Act, or any person or
19-48 corporation not otherwise a public utility that:
19-49 (A) <(1)> furnishes the services or commodity
19-50 described in this section only to itself, its employees, or its
19-51 tenants as an incident of such employee service or tenancy, when
19-52 such service or commodity is not resold to or used by others;
19-53 (B) <(2)> owns or operates in this state
19-54 equipment or facilities for producing, generating, transmitting,
19-55 distributing, selling, or furnishing electric energy to an electric
19-56 utility, if the equipment or facilities are used primarily for the
19-57 production and generation of electric energy for consumption by the
19-58 person or corporation; or
19-59 (C) <(3)> owns or operates in this state a
19-60 recreational vehicle park that provides metered electric service in
19-61 accordance with Article 1446d-2, Revised Statutes, provided that a
19-62 recreational vehicle park owner is considered a public utility if
19-63 the owner fails to comply with Article 1446d-2, Revised Statutes,
19-64 with regard to the metered sale of electricity at the recreational
19-65 vehicle park.
19-66 (2) "Exempt wholesale generator" means a person that
19-67 is engaged directly, or indirectly through one or more affiliates,
19-68 exclusively in the business of owning, operating, or both owning
19-69 and operating all or part of one or more facilities for the
19-70 generation of electric energy and selling electric energy at
20-1 wholesale and that:
20-2 (A) does not own facilities for the transmission
20-3 of electricity, other than essential interconnecting transmission
20-4 facilities necessary to effect a sale of electric energy at
20-5 wholesale; and
20-6 (B) has applied to the Federal Energy Regulatory
20-7 Commission for a determination under Section 32, Public Utility
20-8 Holding Company Act (15 U.S.C. Section 79z-5a), or has registered
20-9 as an exempt wholesale generator as required by this Act.
20-10 (3) "Power marketer" means a person that:
20-11 (A) becomes owner of electric energy in this
20-12 state for the purpose of buying and selling the electric energy at
20-13 wholesale;
20-14 (B) does not own generation, transmission, or
20-15 distribution facilities in this state;
20-16 (C) does not have a certificated service area;
20-17 and
20-18 (D) has been granted authority by the Federal
20-19 Energy Regulatory Commission to sell electric energy at
20-20 market-based rates or has registered as a power marketer under this
20-21 Act.
20-22 (4) "Qualifying cogenerator" and "qualifying small
20-23 power producer" have the meanings assigned by Sections 3(18)(C) and
20-24 3(17)(D), Federal Power Act (16 U.S.C. Sections 796(18)(C) and
20-25 796(17)(D)).
20-26 (5) "Qualifying facility" means a qualifying
20-27 cogenerator or qualifying small power producer.
20-28 (6) "Transmission service" includes construction or
20-29 enlargement of facilities, transmission over distribution
20-30 facilities, control area services, scheduling resources, regulation
20-31 service, providing operating reserves, reactive power support,
20-32 voltage control, and any other associated electrical services
20-33 deemed appropriate by the commission.
20-34 Sec. 2.0012. CERTAIN RIVER AUTHORITIES.
20-35 (a) Notwithstanding any other provision of this Act to the
20-36 contrary, the commission shall not have the authority to regulate
20-37 directly or indirectly the revenue requirements, rates, fuel costs,
20-38 fuel charges, or fuel acquisitions that are related to the
20-39 generation and sale of electricity at wholesale and not to ultimate
20-40 consumers by a river authority operating one or more steam
20-41 generating plants. Subject to the provisions of this section, the
20-42 term "public utility," "retail public utility," or "utility" shall
20-43 not include a corporation authorized by Chapter 245, Acts of the
20-44 67th Legislature, Regular Session, 1981 (Article 717p, Vernon's
20-45 Texas Civil Statutes), and acting on behalf of the river authority
20-46 to the extent that the corporation sells electricity exclusively at
20-47 wholesale and not to ultimate consumers.
20-48 (b) This section shall constitute full authority for any
20-49 river authority operating one or more steam generating plants to
20-50 acquire, finance, construct, rebuild, repower, and use new and
20-51 existing power plants, equipment, transmission lines, and other
20-52 assets, for the sale of electricity exclusively at wholesale and
20-53 not at retail to any purchaser within San Saba, Llano, Burnet,
20-54 Travis, Bastrop, Blanco, Colorado, and Fayette counties and any
20-55 purchaser within the area served by the river authority on
20-56 January 1, 1975.
20-57 (c) This section shall constitute full authority for a
20-58 corporation described in Subsection (a) of this section to acquire,
20-59 finance, construct, rebuild, repower, operate, or sell facilities
20-60 directly related to the generation of electricity and sell the
20-61 output of such facilities, to the extent that such corporation
20-62 sells such electricity to any purchaser at any location in this
20-63 state exclusively at wholesale, and not to ultimate consumers,
20-64 notwithstanding any provisions to the contrary in the river
20-65 authority's enabling legislation or Chapter 245, Acts of the 67th
20-66 Legislature, Regular Session, 1981 (Article 717p, Vernon's Texas
20-67 Civil Statutes), provided that nothing in this section shall
20-68 preclude the corporation from purchasing transmission and related
20-69 services from such river authority. Except as provided in this
20-70 section, the development, financing, ownership, and operation of
21-1 such facilities by such corporation shall be subject to the
21-2 provisions of all applicable laws other than this Act, and the
21-3 property, gross receipts, and income of such corporation acting on
21-4 behalf of a river authority pursuant to this section shall be
21-5 subject to, and such corporation shall pay, taxes and assessments
21-6 of the federal government or of this state or of any municipal
21-7 corporation, county, or other political subdivision or taxing
21-8 district of this state on the same basis as an exempt wholesale
21-9 generator. No proceeds from the sale of bonds or other
21-10 obligations, the interest on which is exempt from taxation, issued
21-11 by the corporation or river authority, other than as may be
21-12 available to investor-owned utilities or exempt wholesale
21-13 generators, shall be used, or shall have been used, to finance the
21-14 construction or acquisition of or rebuilding or repowering of any
21-15 facilities for the generation of electricity by the corporation.
21-16 (d) This section shall not authorize the river authority to
21-17 acquire, install, construct, make additions to, or operate steam
21-18 generating plants whose aggregate capacity is greater than 5,000
21-19 megawatts to serve purchasers within the area served by the river
21-20 authority on January 1, 1975. In addition, any river authority
21-21 subject to this section and any corporation acting on behalf of
21-22 such river authority may provide retail service only to those
21-23 retail customers served by the river authority or corporation
21-24 acting on behalf of the river authority on September 1, 1995.
21-25 (e) Nothing in this section shall otherwise limit the powers
21-26 granted a river authority in its enabling legislation and other
21-27 applicable law.
21-28 SECTION 2.02. Subtitle A, Title II, Public Utility
21-29 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
21-30 74th Legislature, Regular Session, 1995, is amended by adding
21-31 Section 2.003 to read as follows:
21-32 Sec. 2.003. SCOPE OF COMPETITION. Before January 15 of each
21-33 odd-numbered year, the commission shall report to the legislature
21-34 on the scope of competition in electric markets and the impact of
21-35 competition and industry restructuring on customers in both
21-36 competitive and noncompetitive markets. The report shall include
21-37 an assessment of the impact of competition on the rates and
21-38 availability of electric services for residential and small
21-39 commercial customers and a summary of commission actions over the
21-40 preceding two years that reflect changes in the scope of
21-41 competition in regulated electric markets. The report shall also
21-42 include recommendations to the legislature for further legislation
21-43 that the commission finds appropriate to promote the public
21-44 interest in the context of a partially competitive electric market.
21-45 SECTION 2.03. Section 2.051, Public Utility Regulatory Act
21-46 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
21-47 Regular Session, 1995, is amended to read as follows:
21-48 Sec. 2.051. INTEGRATED RESOURCE PLANNING. (a) The
21-49 commission by rule shall develop an integrated resource planning
21-50 process to provide reliable energy service at the lowest reasonable
21-51 cost. In determining the lowest reasonable cost of an electric
21-52 utility's plan, the commission shall consider in addition to direct
21-53 costs the following:
21-54 (1) the effect on the rates and bills of various types
21-55 of customers;
21-56 (2) minimization of the risks of future fuel costs and
21-57 regulations;
21-58 (3) the appropriateness and reliability of the mix of
21-59 resources; and
21-60 (4) the costs of compliance with the environmental
21-61 protection requirements of all applicable state and federal laws,
21-62 rules, and orders.
21-63 (b) The commission by rule shall adopt and periodically
21-64 update a statewide integrated resource plan that includes the
21-65 commission's long-term resource planning goals. The commission
21-66 shall send a report on the plan to the governor when it adopts or
21-67 revises the plan and notify each public utility of the approval of
21-68 the statewide plan. The commission shall make the report available
21-69 to the public.
21-70 (c) The report on the statewide plan shall include:
22-1 (1) historical data for electric consumption statewide
22-2 and by utility;
22-3 (2) historical data for electric generation by utility
22-4 and by type of capacity, including alternative energy sources;
22-5 (3) an inventory of generation capacity statewide and
22-6 by utility;
22-7 (4) quantitative data on demand-side management
22-8 programs to the extent the commission determines necessary;
22-9 (5) each generating utility's forecast without
22-10 adjustment;
22-11 (6) the commission's long-term resource planning goals
22-12 included in the plan;
22-13 (7) a projection of the need for electric services;
22-14 (8) a description of the approved individual
22-15 integrated resource plans of public utilities; and
22-16 (9) an assessment of transmission planning being
22-17 performed by utilities within this state.
22-18 (d) In prescribing the requirements under this section,
22-19 including reporting requirements, the commission shall consider and
22-20 recognize the differences in capabilities of small and large
22-21 utilities.
22-22 (e) Generating public utilities as well as non-generating
22-23 public utilities planning to construct generating resources shall
22-24 submit to the commission a preliminary integrated resource plan.
22-25 Preliminary integrated resource plans shall be submitted every
22-26 three years and cover a 10-year period. The commission by rule:
22-27 (1) shall:
22-28 (A) prescribe a staggered schedule for the
22-29 submission of plans by utilities;
22-30 (B) prescribe the form and manner in which a
22-31 plan must be submitted;
22-32 (C) adopt filing requirements and schedules; and
22-33 (D) prescribe the methods by which a utility may
22-34 recover supply-side and demand-side costs; and
22-35 (2) may:
22-36 (A) define the scope and nature of public
22-37 participation in the development of the plan; and
22-38 (B) establish the general guidelines to be used
22-39 by utilities in evaluating and selecting or rejecting resources,
22-40 including procedures governing the solicitation process.
22-41 (f) A preliminary plan submitted under this section must
22-42 include:
22-43 (1) the utility's forecast of future demands;
22-44 (2) an estimate of the energy savings and demand
22-45 reduction the utility can achieve during the 10-year period by use
22-46 of demand-side management resources and the range of possible costs
22-47 for those resources;
22-48 (3) if additional supply-side resources are needed to
22-49 meet future demand, an estimate of:
22-50 (A) the amount and operational characteristics
22-51 of the additional capacity needed;
22-52 (B) the types of viable supply-side resources
22-53 for meeting that need; and
22-54 (C) the range of probable costs of those
22-55 resources;
22-56 (4) if necessary, proposed requests for proposals for
22-57 demand-side or supply-side resources, or both;
22-58 (5) the specific criteria the utility will use to
22-59 evaluate and select or reject those resources, which criteria may
22-60 deviate from the general guidelines on a showing of good cause;
22-61 (6) the methods by which the utility intends to
22-62 monitor those resources after selection;
22-63 (7) the method by which the utility intends to
22-64 allocate costs;
22-65 (8) any proposed incentive factors; and
22-66 (9) any other information the commission requires.
22-67 (g) Every three years, a municipally owned utility shall
22-68 submit to the commission a report containing all of the information
22-69 required in a preliminary integrated resource plan under Subsection
22-70 (f) of this section, but shall not otherwise be subject to the
23-1 requirements of this section.
23-2 (h) After a utility files its preliminary plan, the
23-3 commission on its own motion or on the motion of the utility or of
23-4 an affected person shall convene a public hearing on the adequacy
23-5 and merits of the preliminary plan. At the hearing, any interested
23-6 person may intervene, present evidence, and cross-examine witnesses
23-7 regarding the contents and adequacy of the preliminary plan.
23-8 Discovery is limited to an issue relating to the development of the
23-9 preliminary plan, a fact issue included in the preliminary plan,
23-10 and other issues the commission is required to decide relating to
23-11 the preliminary plan. A commission hearing is not required for a
23-12 preliminary plan filed by a river authority or generating electric
23-13 cooperative that does not intend to build a new generating plant or
23-14 for a preliminary plan filed by a municipally owned public utility.
23-15 (i) After the hearing, the commission shall determine
23-16 whether:
23-17 (1) the utility's preliminary plan is based on
23-18 substantially accurate data and an adequate method of forecasting;
23-19 (2) the utility's preliminary plan identifies and
23-20 takes into account any present and projected reductions in the
23-21 demand for energy that may result from cost-effective measures to
23-22 improve conservation and energy efficiency in various customer
23-23 classes of the area being served;
23-24 (3) if additional supply-side resources are needed to
23-25 meet future demand, the utility's preliminary plan adequately
23-26 demonstrates:
23-27 (A) the amount and operational characteristics
23-28 of the additional capacity needed;
23-29 (B) the types of viable supply-side resources
23-30 for meeting that need; and
23-31 (C) the range of probable costs of those
23-32 resources;
23-33 (4) the utility's preliminary plan demonstrates the
23-34 opportunities for appropriate persons to participate in the
23-35 development of the preliminary plan;
23-36 (5) the specific criteria the utility will use to
23-37 evaluate and select or reject resources are reasonable and
23-38 consistent with the guidelines of the integrated resource planning
23-39 process;
23-40 (6) the cost allocation method proposed by the utility
23-41 is reasonable; and
23-42 (7) any incentive factors are appropriate and, if so,
23-43 the levels of such incentive factors.
23-44 (j) Not later than the 180th day after the date the utility
23-45 files the preliminary plan, the commission shall issue an interim
23-46 order on the preliminary plan. The commission shall approve the
23-47 preliminary plan, modify the preliminary plan, or, if necessary,
23-48 remand the preliminary plan for additional proceedings. The
23-49 180-day period may be extended for a period not to exceed 30 days
23-50 for extenuating circumstances encountered in the development and
23-51 processing of an initial plan, if the extenuating circumstances are
23-52 fully explained and agreed on by the commissioners.
23-53 (k) On approval of the preliminary plan, the utility shall
23-54 conduct solicitations for demand-side and supply-side resources, as
23-55 prescribed in the preliminary plan. In addition to soliciting
23-56 resources from unaffiliated third parties, the utility may:
23-57 (1) prepare and submit a bid of a new utility
23-58 demand-side management program as prescribed by Subsection (m) of
23-59 this section;
23-60 (2) receive bids from one or more affiliates; and
23-61 (3) request a certificate of convenience and necessity
23-62 for a new rate-based generating plant.
23-63 (l) Each bidder, including the utility and its affiliates,
23-64 shall submit two copies of its bid to the commission. The
23-65 commission shall ensure that the utility has access to all bids at
23-66 the same time. The commission shall keep a copy of each bid
23-67 submitted by the utility or an affiliate to determine whether the
23-68 utility complied with the criteria established for conduct of the
23-69 solicitation. A bid submitted under this subsection or retained
23-70 under this subsection is confidential and is not subject to
24-1 disclosure under Chapter 552, Government Code.
24-2 (m) If a utility wants to use a proposed demand-side
24-3 management program to meet a need identified in the preliminary
24-4 plan, the utility must prepare a bid reflecting that resource. A
24-5 bid prepared by the utility under this subsection must comply with
24-6 the solicitation, evaluation, selection, and rejection criteria
24-7 specified in the preliminary plan. The utility may not give
24-8 preferential treatment or consideration to a bid prepared under
24-9 this subsection.
24-10 (n) The utility shall evaluate each bid submitted, including
24-11 an affiliate bid, in accordance with the criteria specified in the
24-12 preliminary plan and shall negotiate necessary contracts. The
24-13 utility is not required to accept a bid and may reject any or all
24-14 bids in accordance with the selection and rejection criteria
24-15 specified in the preliminary plan. If the results of the
24-16 solicitations and contract negotiations do not meet the supply-side
24-17 needs identified in the preliminary plan, the utility may apply for
24-18 a certificate of convenience and necessity for a utility-owned
24-19 resource addition notwithstanding the fact a solicitation was
24-20 conducted and the addition was not included in the approved
24-21 preliminary plan.
24-22 (o) After conducting the solicitations and negotiating the
24-23 contracts, the utility shall submit to the commission a proposed
24-24 final integrated resource plan. The proposed final plan must
24-25 include:
24-26 (1) the results of the solicitations;
24-27 (2) the contracts for resources;
24-28 (3) the terms and conditions under which the utility
24-29 will provide resources to meet a need identified in the preliminary
24-30 plan, if the utility accepts a bid submitted under Subsection (m)
24-31 of this section; and
24-32 (4) an application for a certificate of convenience
24-33 and necessity, if necessary.
24-34 (p) The commission shall, on request by any affected person
24-35 and within 90 days after the date a utility files its final
24-36 integrated resource plan under this section, convene a public
24-37 hearing on the reasonableness and cost-effectiveness of the
24-38 proposed final plan. At the hearing, any interested person may
24-39 intervene, present evidence, and cross-examine witnesses regarding
24-40 the reasonableness and cost-effectiveness of the proposed final
24-41 plan. Parties will not be allowed to litigate or conduct discovery
24-42 on issues that were litigated or could have been litigated in
24-43 connection with the filing of the utility's preliminary plan. To
24-44 the extent permitted by federal law, the commission may issue a
24-45 written order for access to the books, accounts, memoranda,
24-46 contracts, or records of any exempt wholesale generator or power
24-47 marketer selling energy at wholesale to a utility, if the
24-48 examination is required for the effective discharge of the
24-49 commission's regulatory responsibilities under this Act, except
24-50 that if the commission issues such an order, the books, accounts,
24-51 memoranda, contracts, and records obtained by the commission are
24-52 confidential and not subject to disclosure under Chapter 552,
24-53 Government Code.
24-54 (q) After the hearing, the commission shall determine
24-55 whether:
24-56 (1) the utility's proposed final plan was developed in
24-57 accordance with the preliminary plan and commission rules;
24-58 (2) the resource solicitations, evaluations,
24-59 selections, and rejections were conducted in accordance with the
24-60 criteria included in the preliminary plan;
24-61 (3) the utility's proposed final plan is
24-62 cost-effective;
24-63 (4) the commission should certify the contracts and
24-64 any utility bid submitted under Subsection (m) of this section that
24-65 resulted from the solicitations; and
24-66 (5) the commission should grant a requested
24-67 certificate of convenience and necessity for a utility-owned
24-68 resource addition.
24-69 (r)(1) In determining whether to certify a supply-side or
24-70 demand-side contract that results from the solicitations, the
25-1 commission shall consider the reliability, financial condition, and
25-2 safety of that resource contract and whether the solicitation,
25-3 evaluation, and selection of that resource contract was conducted
25-4 in accordance with the criteria included in the preliminary plan.
25-5 The commission shall not certify contracts for new purchases of
25-6 power by a utility unless the utility has determined, after giving
25-7 consideration to consistently applied regional or national
25-8 reliability standards, guidelines, or criteria, that the contract
25-9 would not unreasonably impair the continued reliability of electric
25-10 systems affected by the purchase, and the purchase can reasonably
25-11 be expected to produce benefits to customers of the purchasing
25-12 utility. Commission certification of a resource contract does not
25-13 negate the necessity of the resource to comply with all applicable
25-14 environmental and siting regulations. In addition, if the contract
25-15 is with a utility affiliate, the commission shall determine whether
25-16 the utility treated and considered the affiliate's bid in the same
25-17 manner it treated and considered other bids intended to meet the
25-18 same resource needs and shall further determine, in connection with
25-19 such purchase, whether:
25-20 (A) the transaction will benefit consumers;
25-21 (B) the transaction violates any state law,
25-22 including least cost planning;
25-23 (C) the transaction provides the utility
25-24 affiliate any unfair competitive advantage by virtue of its
25-25 affiliation or association with the utility;
25-26 (D) the transaction is in the public interest;
25-27 and
25-28 (E) the commission has sufficient regulatory
25-29 authority, resources, and access to the books and records of the
25-30 utility and its affiliate to make these determinations.
25-31 (2) In setting a public utility's rates for a period
25-32 during which a certified contract is effective, the regulatory
25-33 authority shall consider payments made under the contract to be
25-34 reasonable and necessary operating expenses of the public utility.
25-35 The regulatory authority may provide for monthly recovery of the
25-36 approved costs of the contract as those costs are incurred,
25-37 including the allowed mark-up determined by the commission.
25-38 (s) In determining whether to grant a requested certificate
25-39 of convenience and necessity, the commission shall consider the
25-40 effect of the granting of a certificate on the recipient of the
25-41 certificate and on any public utility of the same kind already
25-42 serving the proximate area. The commission shall also consider
25-43 other factors such as community values, recreational and park
25-44 areas, historical and aesthetic values, environmental integrity,
25-45 and the probable improvement of service or lowering of cost to
25-46 consumers in that area if the certificate is granted. The
25-47 commission shall grant the certificate as part of the approval of
25-48 the final plan if it finds that:
25-49 (1) the proposed addition is necessary under the final
25-50 plan;
25-51 (2) the proposed addition is the best and most
25-52 economical choice of technology for that service area; and
25-53 (3) cost-effective conservation and other
25-54 cost-effective alternative energy sources cannot reasonably meet
25-55 the need.
25-56 (t) Not later than the 180th day after the date the utility
25-57 files the proposed final plan, the commission shall issue a final
25-58 order on the plan. The commission shall approve the proposed final
25-59 plan, modify the proposed final plan, or, if necessary, remand the
25-60 proposed final plan for additional proceedings.
25-61 (u) The commission shall adopt rules allowing a utility to
25-62 add, consistent with the utility's last approved integrated
25-63 resource planning goals, new or incremental resources outside the
25-64 solicitation process, including resources listed in Subsection (x)
25-65 of this section.
25-66 (v) In addition to its other authority and responsibility
25-67 under this section, the commission shall establish rules and
25-68 guidelines that will promote the development of renewable energy
25-69 technologies consistent with the guidelines of the integrated
25-70 resource planning process.
26-1 (w) In carrying out its duties related to the integrated
26-2 resource planning process, the commission may:
26-3 (1) allow timely recovery of reasonable costs of
26-4 conservation, load management, and purchased power, notwithstanding
26-5 Section 2.212(g)(1) of this Act;
26-6 (2) authorize additional incentives for conservation,
26-7 load management, purchased power, and renewable resources;
26-8 (3) require a utility to provide transmission service,
26-9 exclusively for the purposes of transmitting wholesale power, to
26-10 another utility or any other entity authorized to generate and sell
26-11 electricity or to a power marketer; and
26-12 (4) review the state's transmission system to
26-13 determine and make recommendations to public utilities on the need
26-14 to build new power lines, upgrade power lines, and make other
26-15 improvements and additions as necessary, and who should pay the
26-16 direct and indirect cost of these improvements if made, review the
26-17 actions of the public utilities in light of those recommendations,
26-18 and take those actions into account in fixing a reasonable return
26-19 on invested capital under Section 2.203(b) of this Act.
26-20 (x) Consistent with the utility's last approved integrated
26-21 resource planning goals, if any, the utility, including a
26-22 nongenerating utility, may add new or incremental resources outside
26-23 the solicitation process such as:
26-24 (1) contract renegotiation for existing capacity from
26-25 an electric cooperative or nonaffiliated power generating
26-26 facilities;
26-27 (2) electric cooperative or nonaffiliated demand-side
26-28 management programs or renewable resources;
26-29 (3) capacity purchases with terms of two years or less
26-30 from an electric cooperative or nonaffiliated power suppliers or
26-31 capacity purchases necessary to satisfy unanticipated emergency
26-32 conditions;
26-33 (4) the exercise of an option in a purchased power
26-34 contract with an electric cooperative or nonaffiliated supplier;
26-35 and
26-36 (5) renewable distributed resources, located at or
26-37 near the point of consumption, if they are less costly than
26-38 transmission extensions or upgrades.
26-39 (y) The addition of new or incremental resources by a
26-40 utility under Subsection (x) of this section does not require an
26-41 amendment to the utility's integrated resource plan.
26-42 (z)(1) If a qualifying facility submits a bid under this
26-43 section, regardless of whether that bid is accepted or rejected,
26-44 and only with respect to the capacity need for which the bid has
26-45 been submitted, the submission of the bid:
26-46 (A) constitutes a waiver by the qualifying
26-47 facility of any rights it may otherwise have under law to sell
26-48 capacity to the utility;
26-49 (B) represents the qualifying facility's
26-50 agreement to negotiate a rate for purchase of capacity and terms
26-51 and conditions relating to any purchase of capacity by the utility
26-52 that differ from the rate or terms and conditions that would
26-53 otherwise be required by 18 CFR Chapter I, Subchapter K, Part 292,
26-54 Subpart C; and
26-55 (C) constitutes a waiver by the qualifying
26-56 facility of its right to the rate, terms, or conditions for
26-57 purchases of capacity by the utility that might otherwise be
26-58 required by that subpart.
26-59 (2) For the purpose of determining a utility's avoided
26-60 capacity costs under 18 CFR Chapter I, Subchapter K, Part 292,
26-61 Subpart C, on submitting a preliminary integrated resource plan to
26-62 the commission under Section 2.051 of this Act, the utility's
26-63 avoided capacity costs shall be deemed to be $0 and shall remain
26-64 $0, with respect to any capacity needs shown in such preliminary
26-65 integrated resource plan or final integrated resource plan that are
26-66 to be satisfied by resources approved in the utility's final
26-67 integrated resource plan.
26-68 (3) Nothing in this subsection shall affect the
26-69 validity of any contract entered into between a qualifying facility
26-70 and an electric utility for any purchase.
27-1 (aa) In this section, "utility" includes a river authority
27-2 subject to Section 2.0012 of this Act with respect to the area
27-3 served by the river authority on January 1, 1975.
27-4 (bb) Nongenerating utilities not planning to construct
27-5 generating resources are not required to submit an integrated
27-6 resource plan to the commission. If such a utility seeks to
27-7 purchase more than 25 percent of its peak demand or more than 70
27-8 megawatts from a wholesale power supplier other than its existing
27-9 power supplier, the utility shall conduct a solicitation for
27-10 resources. However, no solicitation is required for purchases from
27-11 an existing power supplier, and new or incremental resources may be
27-12 added outside the solicitation process as provided in Subsection
27-13 (x) of this section. If requested by such a utility, the
27-14 commission may review the reasonableness of any contract for
27-15 resources resulting from the solicitation. On a finding by the
27-16 commission that such a contract is reasonable, the commission shall
27-17 certify the contract. The commission shall make its determination
27-18 within 90 days after the date the proposed contract is submitted.
27-19 Nothing in this subsection is intended to alter or amend existing
27-20 wholesale power supply contracts.
27-21 (cc) To the extent that the commission authorizes utilities
27-22 to recover costs of demand-side management programs, conservation,
27-23 load management, or purchased power through various cost recovery
27-24 factors, the commission shall make a final reconciliation of the
27-25 costs recovered through those cost recovery factors. The
27-26 commission shall adopt rules regarding when the reconciliations
27-27 will occur for each of the cost recovery factors, what type of
27-28 information utilities need to file in support of the
27-29 reconciliation, and other matters necessary to perform the
27-30 reconciliation. The reconciliation shall (1) review the
27-31 reasonableness of the utility's administration of the contracts and
27-32 programs whose costs are being reconciled and (2) reconcile the
27-33 revenue collected under each cost recovery factor and the costs
27-34 that the utility incurred on purchased power, demand-side
27-35 management, conservation, or load management during the
27-36 reconciliation period. <ELECTRICAL FORECAST. (a) The commission
27-37 shall develop a long-term statewide electrical energy forecast
27-38 which shall be sent to the governor biennially. The forecast will
27-39 include an assessment of how alternative energy sources,
27-40 conservation, and load management will meet the state's electricity
27-41 needs.>
27-42 <(b) Every generating electric utility in the state shall
27-43 prepare and transmit to the commission every two years a report
27-44 specifying at least a 10-year forecast for assessments of load and
27-45 resources for its service area. The report shall include a list of
27-46 facilities which will be required to supply electric power during
27-47 the forecast periods. The report shall be in a form prescribed by
27-48 the commission. The report shall include:>
27-49 <(1) a tabulation of estimated peak load, resources,
27-50 and reserve margins for each year during the forecast or assessment
27-51 period;>
27-52 <(2) a list of existing electric generating plants in
27-53 service with a description of planned and potential generating
27-54 capacity at existing sites;>
27-55 <(3) a list of facilities which will be needed to
27-56 serve additional electrical requirements identified in the
27-57 forecasts or assessments, the general location of such facilities,
27-58 and the anticipated types of fuel to be utilized in the proposed
27-59 facilities, including an estimation of shutdown costs and disposal
27-60 of spent fuel for nuclear power plants;>
27-61 <(4) a description of additional system capacity which
27-62 might be achieved through, among other things, improvements in:>
27-63 <(A) generating or transmission efficiency;>
27-64 <(B) importation of power;>
27-65 <(C) interstate or interregional pooling;>
27-66 <(D) other improvements in efficiencies of
27-67 operation; and>
27-68 <(E) conservation measures;>
27-69 <(5) an estimation of the mix and type of fuel
27-70 resources for the forecast or assessment period;>
28-1 <(6) an annual load duration curve and a forecast of
28-2 anticipated peak loads for the forecast or assessment period for
28-3 the residential, commercial, industrial, and such other major
28-4 demand sectors in the service area of the electric utility as the
28-5 commission shall determine; and>
28-6 <(7) a description of projected population growth,
28-7 urban development, industrial expansion, and other growth factors
28-8 influencing increased demand for electric energy and the basis for
28-9 such projections.>
28-10 <(c) The commission shall establish and every electric
28-11 utility shall utilize a reporting methodology for preparation of
28-12 the forecasts of future load and resources.>
28-13 <(d) The commission shall review and evaluate the electric
28-14 utilities' forecast of load and resources and any public comment on
28-15 population growth estimates prepared by the Bureau of Business
28-16 Research, The University of Texas at Austin.>
28-17 <(e) Within 12 months after the receipt of the reports
28-18 required by this section, the commission shall hold a public
28-19 hearing and subsequently issue a final report to the governor and
28-20 notify every electric utility of the commission's electric forecast
28-21 for that utility. The commission shall consider its electric
28-22 forecast in all certification proceedings covering new generation
28-23 plants.>
28-24 SECTION 2.04. Section 2.052, Public Utility Regulatory Act
28-25 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
28-26 Regular Session, 1995, is amended to read as follows:
28-27 Sec. 2.052. ENCOURAGEMENT OF ECONOMICAL PRODUCTION.
28-28 (a) The commission shall make and enforce rules to encourage the
28-29 economical production of electric energy by qualifying cogenerators
28-30 and qualifying small power producers.
28-31 (b) A qualifying cogenerator or qualifying small power
28-32 producer may sell electric energy in this state only at wholesale,
28-33 except that a qualifying cogenerator may sell electric energy at
28-34 retail to the sole purchaser of the cogenerator's thermal output.
28-35 SECTION 2.05. Subtitle B, Title II, Public Utility
28-36 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
28-37 74th Legislature, Regular Session, 1995, is amended by adding
28-38 Section 2.053 to read as follows:
28-39 Sec. 2.053. EXEMPT WHOLESALE GENERATORS AND POWER MARKETERS.
28-40 (a) An exempt wholesale generator or power marketer may sell
28-41 electric energy only at wholesale.
28-42 (b) The commission has the following jurisdiction over
28-43 exempt wholesale generators and power marketers that sell electric
28-44 energy in this state:
28-45 (1) to require registration as provided by Subsection
28-46 (c) of this section; and
28-47 (2) to require the filing of reports the commission
28-48 prescribes by rule.
28-49 (c) Each exempt wholesale generator and power marketer
28-50 shall, within 30 days after the date it becomes subject to this
28-51 section, register with the commission or provide proof that it has
28-52 registered with the Federal Energy Regulatory Commission or been
28-53 authorized by the Federal Energy Regulatory Commission to sell
28-54 electric energy at market-based rates. Registration may be
28-55 accomplished by filing with the commission a description of the
28-56 location of any facility used to provide service, the type of
28-57 service provided, a copy of any information filed with the Federal
28-58 Energy Regulatory Commission in connection with registration with
28-59 that commission, and other information the commission prescribes by
28-60 rule.
28-61 SECTION 2.06. Subtitle B, Title II, Public Utility
28-62 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
28-63 74th Legislature, Regular Session, 1995, is amended by adding
28-64 Section 2.054 to read as follows:
28-65 Sec. 2.054. EXEMPT WHOLESALE GENERATOR AND POWER MARKETER
28-66 AFFILIATES. (a) An affiliate of a public utility may be an exempt
28-67 wholesale generator or power marketer and may sell electric energy
28-68 to its affiliated public utility in accordance with Section 2.051
28-69 of this Act and other provisions of law governing wholesale sales
28-70 of electric energy.
29-1 (b) If a rate or charge for or in connection with the
29-2 construction of a facility, or for electric energy produced by the
29-3 construction of a facility, or for electric energy produced by a
29-4 facility other than any portion of a rate or charge which
29-5 represents recovery of the cost of a wholesale rate or charge was
29-6 in effect as of the date of enactment of this section, the facility
29-7 shall not be sold, transferred to an affiliate, or otherwise
29-8 considered an eligible facility as defined by federal law. The
29-9 commission may, after notice and hearing, allow such facility to be
29-10 sold, transferred to an affiliate, or become an eligible facility
29-11 only if such sale or transfer will benefit ratepayers of the
29-12 utility making the sale or transfer, is in the public interest, and
29-13 otherwise complies with state law.
29-14 SECTION 2.07. Subtitle B, Title II, Public Utility
29-15 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
29-16 74th Legislature, Regular Session, 1995, is amended by adding
29-17 Section 2.056 to read as follows:
29-18 Sec. 2.056. TRANSMISSION SERVICE. (a) The commission may
29-19 require a utility, including a municipally owned utility, to
29-20 provide transmission service at wholesale to another utility, a
29-21 qualifying facility, an exempt wholesale generator, or a power
29-22 marketer and may determine whether the terms and conditions for the
29-23 transmission service are reasonable. The commission may require
29-24 transmission service at wholesale, including construction or
29-25 enlargement of facilities, in a proceeding not related to approval
29-26 of an integrated resource plan. The commission may not issue a
29-27 decision or rule relating to transmission service that is contrary
29-28 to an applicable decision, rule, or policy statement of a federal
29-29 regulatory agency having jurisdiction.
29-30 (b) The commission, with the advice and consent of the
29-31 governor, shall appoint a five-person interstate interconnection
29-32 committee to determine and recommend the most economical, reliable,
29-33 and efficient means to synchronously interconnect, by the year
29-34 2001, the alternating current electric facilities of electric
29-35 utilities within the Electric Reliability Council of Texas
29-36 reliability area to the alternating current electric facilities of
29-37 utilities within the Southwest Power Pool reliability area.
29-38 SECTION 2.08. Subtitle B, Title II, Public Utility
29-39 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
29-40 74th Legislature, Regular Session, 1995, is amended by adding
29-41 Section 2.057 to read as follows:
29-42 Sec. 2.057. WHOLESALE COMPETITION. (a) A public utility
29-43 that owns or operates transmission facilities shall provide
29-44 wholesale transmission service at rates, terms of access, and
29-45 conditions that are comparable to the rates, terms of access, and
29-46 conditions of the utility's use of its system. The commission
29-47 shall ensure that utilities provide nondiscriminatory access to
29-48 transmission service for qualifying facilities, exempt wholesale
29-49 generators, power marketers, and public utilities. The commission
29-50 shall adopt rules within 180 days of the effective date of this
29-51 section relating to wholesale transmission service, rates, and
29-52 access. The rules shall be consistent with the standards in this
29-53 section, shall not be contrary to federal law, including any
29-54 applicable policy statement, decision, or rule of a federal
29-55 regulatory agency, having jurisdiction and shall require
29-56 transmission services that are not less than the transmission
29-57 services the Federal Energy Regulatory Commission may require in
29-58 similar circumstances. All public utilities that own or operate
29-59 transmission facilities shall file tariffs implementing such rules
29-60 within 60 days after the commission has adopted transmission
29-61 pricing and access rules pursuant to this section unless the terms
29-62 and conditions for access and pricing are included in the tariff of
29-63 another utility. Such tariffs shall be filed with the appropriate
29-64 state or federal regulatory agency having jurisdiction over the
29-65 transmission service of the entity filing the tariff.
29-66 (b) The commission shall adopt rules relating to the
29-67 registration and reporting requirements of qualifying facilities,
29-68 exempt wholesale generators, and power marketers.
29-69 (c) The regulatory authority may not require a public
29-70 utility to wheel or transmit electricity over that public utility's
30-1 facilities from another entity to an ultimate consumer of
30-2 electricity in the utility's certificated service area, including
30-3 wheeling or transmitting electricity to another location of that
30-4 other entity, if the entity is an ultimate consumer of electricity.
30-5 (d) To the extent a utility provides transmission of
30-6 electric energy at the request of a third party, the commission
30-7 shall ensure that the costs of the transmission are not borne by
30-8 the utility's other customers by requiring the utility to recover
30-9 from the entity for which the transmission is provided all
30-10 reasonable costs incurred by the utility in providing transmission
30-11 services necessary for the transaction.
30-12 (e) For the purposes of administering these rules, the
30-13 commission may require that parties to a dispute over the prices,
30-14 terms, and conditions of wholesale transmission service engage in a
30-15 nonbinding alternative dispute resolution process before seeking a
30-16 resolution of a dispute from the commission.
30-17 (f) The commission shall submit a report to the 75th
30-18 Legislature on methods or procedures for quantifying the magnitude
30-19 of stranded investment, procedures for allocating costs, and the
30-20 acceptable methods of recovering stranded costs.
30-21 (g) Affiliates of public utilities, exempt wholesale
30-22 generators, qualifying facilities, and all other providers of
30-23 generation may compete for the business of selling power to a third
30-24 party that is not an ultimate consumer of electricity. In
30-25 accordance with the applicable provisions of this Act, a public
30-26 utility may purchase power from an affiliate. A public utility may
30-27 not grant undue preference to any person in connection with the
30-28 utility's purchase or sale of electric energy at wholesale or other
30-29 utility services.
30-30 (h) For the purposes of this section, the term "public
30-31 utility" shall include municipally owned utilities.
30-32 SECTION 2.09. Subsection (a), Section 2.101, Public Utility
30-33 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
30-34 74th Legislature, Regular Session, 1995, is amended to read as
30-35 follows:
30-36 (a) Subject to the limitations imposed by Sections 2.2011
30-37 and 2.211 of <in> this Act, and for the purpose of regulating rates
30-38 and services so that such rates may be fair, just, and reasonable,
30-39 and the services adequate and efficient, the governing body of each
30-40 municipality shall have exclusive original jurisdiction over all
30-41 retail electric utility rates, operations, and services provided by
30-42 an electric utility within its city or town limits.
30-43 SECTION 2.10. Section 2.105, Public Utility Regulatory Act
30-44 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
30-45 Regular Session, 1995, is amended by adding Subsection (c) to read
30-46 as follows:
30-47 (c) Not later than the 31st day before the date a utility
30-48 files a statement of intent under Section 2.212(a) of this Act, the
30-49 utility shall provide to each municipality having original
30-50 jurisdiction notice of intent to file the statement. Not later
30-51 than the 30th day after the date a municipality receives notice of
30-52 intent to file a statement, the municipality may request that the
30-53 utility file with the municipality a statement of intent in
30-54 accordance with Section 2.212(a) of this Act. If requested, the
30-55 utility shall file the statement of intent with the municipality at
30-56 the same time the statement is filed with the commission.
30-57 SECTION 2.11. Subsection (a), Section 2.106, Public Utility
30-58 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
30-59 74th Legislature, Regular Session, 1995, is amended to read as
30-60 follows:
30-61 (a) The governing body of any municipality participating in
30-62 or conducting ratemaking proceedings and proceedings initiated
30-63 pursuant to Section 2.051 of this Act shall have the right to
30-64 select and engage rate consultants, accountants, auditors,
30-65 attorneys, engineers, or any combination thereof to conduct
30-66 investigations, present evidence, advise and represent the
30-67 governing body, and assist with litigation in public utility
30-68 ratemaking proceedings and proceedings initiated pursuant to
30-69 Section 2.051 of this Act before the governing body, any regulatory
30-70 authority, or in court. The public utility engaged in such
31-1 proceedings shall be required to reimburse the governing body for
31-2 the reasonable costs of such services to the extent found
31-3 reasonable by the applicable regulatory authority.
31-4 SECTION 2.12. Subtitle D, Title II, Public Utility
31-5 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
31-6 74th Legislature, Regular Session, 1995, is amended by adding
31-7 Section 2.1511 to read as follows:
31-8 Sec. 2.1511. MARK-UP. Any cost recovery factor established
31-9 for recovery of purchased power costs may include the costs
31-10 incurred by the utility for the purchase of capacity and energy,
31-11 together with a mark-up added to the costs or other mechanism, as
31-12 determined by the commission, to reasonably compensate the utility
31-13 for financial risks, if any, to the utility associated with
31-14 purchased power obligations and the value added by the utility in
31-15 making the purchased power available to its customers. The
31-16 mark-ups and cost recovery factors, if allowed, may be those that
31-17 are necessary to encourage the utility to include economical
31-18 purchased power as part of its energy and capacity resource supply
31-19 plan.
31-20 SECTION 2.13. Section 2.152, Public Utility Regulatory Act
31-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
31-22 Regular Session, 1995, is amended by adding Subsection (e) to read
31-23 as follows:
31-24 (e) Reasonable costs of participating in a proceeding under
31-25 this Act may be allowed, not to exceed the amount approved by the
31-26 regulatory authority.
31-27 SECTION 2.14. Subsection (b), Section 2.154, Public Utility
31-28 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
31-29 74th Legislature, Regular Session, 1995, is amended to read as
31-30 follows:
31-31 (b) Every public utility shall file with, and as a part of
31-32 such schedules, all rules and regulations relating to or affecting
31-33 the rates, public utility service, product, or commodity furnished
31-34 by such utility. Prices being charged to individual customers for
31-35 retail electric service shall be filed with the regulatory
31-36 authority. The regulatory authority shall consider any information
31-37 concerning a price charged to an individual customer filed with it
31-38 to be a trade secret and shall prevent disclosure of the
31-39 information. This information is not subject to disclosure under
31-40 Chapter 552, Government Code.
31-41 SECTION 2.15. Subtitle E, Title II, Public Utility
31-42 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
31-43 74th Legislature, Regular Session, 1995, is amended by adding
31-44 Section 2.2011 to read as follows:
31-45 Sec. 2.2011. ELECTRIC COOPERATIVE EXEMPTION. (a) An
31-46 electric cooperative corporation that provides retail electric
31-47 utility service at distribution voltage is exempt from rate
31-48 regulation if a majority of the members voting in an election on
31-49 the deregulation of the electric cooperative vote to approve the
31-50 exemption and the electric cooperative sends notice of the action
31-51 to each applicable regulatory authority. An electric cooperative
31-52 that wants to hold an election under this section shall send a
31-53 ballot by mail to each electric cooperative member. The electric
31-54 cooperative may include the ballot in a monthly billing. The
31-55 ballot shall provide for voting for or against rate deregulation of
31-56 the electric cooperative. If the proposition is approved, the
31-57 electric cooperative shall send each ballot to the commission not
31-58 later than the 10th day after the date the electric cooperative
31-59 counts the ballots. Based on the ballots received, the commission
31-60 shall administratively certify that the electric cooperative is or
31-61 is not deregulated for rate-making purposes. An electric
31-62 cooperative may not hold another election on the issue of being
31-63 exempt from rate regulation before the first anniversary of the
31-64 most recent election on the issue. Subsections (b) through (n) of
31-65 this section apply to an electric cooperative that has elected to
31-66 be exempt from rate regulation.
31-67 (b) No regulatory authority shall fix and regulate the rates
31-68 of an electric cooperative that has made an election under this
31-69 section to be exempt from rate regulation except as provided for
31-70 the commission in Subsections (g) and (i) of this section.
32-1 Notwithstanding Section 2.101(a) of this Act, the commission has
32-2 exclusive original jurisdiction in all of the electric
32-3 cooperative's service area in a proceeding initiated under
32-4 Subsection (g) or (i) of this section.
32-5 (c) An electric cooperative may change its rates by:
32-6 (1) adopting a resolution approving the proposed
32-7 change;
32-8 (2) mailing notice of the proposed change to:
32-9 (A) the commission;
32-10 (B) each affected municipality;
32-11 (C) each affected customer, which notice may be
32-12 included in a monthly billing; and
32-13 (D) each electric utility providing retail
32-14 service in the electric cooperative's service area or in the
32-15 adjoining service area; and
32-16 (3) making available at each of the electric
32-17 cooperative's business offices for review by all interested persons
32-18 a cost-of-service study that:
32-19 (A) is not more than five years old at the time
32-20 the electric cooperative adopts rates under this subsection; and
32-21 (B) bears the certification of a professional
32-22 engineer or certified public accountant.
32-23 (d)(1) The notice required by Subsection (c) of this section
32-24 must contain the following information:
32-25 (A) the increase or decrease in total operating
32-26 revenues over actual test year revenues or over test year revenues
32-27 adjusted to annualize the recovery of changes in the cost of
32-28 purchased electricity, stated both as a dollar amount and as a
32-29 percentage;
32-30 (B) the classes of utility customers affected
32-31 and the creation and application of any new rate classes;
32-32 (C) the increase or decrease for each class
32-33 stated as a percentage of actual test year revenues for the class
32-34 or of test year revenues for the class adjusted to annualize the
32-35 recovery of changes in the cost of purchased electricity;
32-36 (D) a statement that the commission may review
32-37 the rate change if the commission receives a petition within 60
32-38 days in accordance with Subsection (g) of this section;
32-39 (E) the address and telephone number of the
32-40 commission;
32-41 (F) a statement that a customer opposed to the
32-42 rate change should notify the electric cooperative in writing of
32-43 the person's opposition and should provide a return address; and
32-44 (G) a statement that members may review a copy
32-45 of any written opposition the electric cooperative receives.
32-46 (2) The electric cooperative may not be required to
32-47 include additional information in the notice.
32-48 (e) The electric cooperative shall make available for review
32-49 by a member of the cooperative at each of the electric
32-50 cooperative's business offices a copy of any written opposition to
32-51 the rate change the electric cooperative receives.
32-52 (f) The electric cooperative shall file tariffs with the
32-53 commission. If the electric cooperative complies with Subsection
32-54 (c) of this section, the commission shall approve the tariffs not
32-55 later than the 10th day after the 60-day period prescribed by
32-56 Subsection (g) of this section expires, unless a review is required
32-57 under Subsection (g) or (i) of this section. If the tariffs are
32-58 approved or if a review is not required and the commission fails to
32-59 act during the period prescribed by this subsection, the change in
32-60 rates takes effect on the 70th day after the date the electric
32-61 cooperative first complies with all requirements of Subsection (c)
32-62 of this section or on a later date determined by the electric
32-63 cooperative. Except as provided by Subsections (g) and (i) of this
32-64 section, the rates of the electric cooperative are not subject to
32-65 review.
32-66 (g) The commission shall review a change in rates under this
32-67 section if, not later than the 60th day after the date the electric
32-68 cooperative first complies with all requirements of Subsection (c)
32-69 of this section, the commission receives a petition requesting
32-70 review signed by:
33-1 (1) at least 10 percent of the members of the electric
33-2 cooperative;
33-3 (2) members of the electric cooperative who purchased
33-4 more than 50 percent of the electric cooperative's annual energy
33-5 sales to a customer class in the test year, provided that the
33-6 petition includes a certification of the purchases; or
33-7 (3) an executive officer of an affected electric
33-8 utility, provided that the petition prescribes the particular class
33-9 or classes for which a review is requested.
33-10 (h) When a person files a petition under Subsection (g) of
33-11 this section, the person shall notify the electric cooperative in
33-12 writing of the action.
33-13 (i) The commission may on its own motion review the rates of
33-14 an electric cooperative if the commission first finds that there is
33-15 good cause to believe that the electric cooperative is earning more
33-16 than a reasonable return on overall system revenues or on revenue
33-17 from a rate class.
33-18 (j) The commission shall conduct a review under Subsection
33-19 (g)(1) or (2) of this section or under Subsection (i) of this
33-20 section in accordance with Section 2.212 of this Act and the other
33-21 applicable rate-setting principles of this subtitle, except that:
33-22 (1) the period for review does not begin until the
33-23 electric cooperative files a rate-filing package as required by
33-24 commission rules;
33-25 (2) the proposed change may not be suspended during
33-26 the pendency of the review; however, the electric cooperative shall
33-27 refund or credit against future bills all sums collected in excess
33-28 of the rate finally set by the commission, if the commission so
33-29 orders; and
33-30 (3) the electric cooperative shall observe the rates
33-31 set by the commission until the rates are changed as provided by
33-32 this section or by other sections of this Act.
33-33 (k) For a review conducted under Subsection (g)(3) of this
33-34 section, the electric cooperative shall file with the commission a
33-35 copy of the cost-of-service study required under Subsection (c)(3)
33-36 of this section not later than the 10th day after the date the
33-37 electric cooperative receives from the affected electric utility
33-38 notice that a petition has been filed. The commission shall
33-39 determine for each class for which review has been requested the
33-40 annual cost of providing service to the class, as stated in the
33-41 electric cooperative's cost-of-service study, and the revenues for
33-42 the class that would be produced by multiplying the rate set by the
33-43 electric cooperative by the annual billing units for the class, as
33-44 stated in the cost-of-service study. If the electric cooperative
33-45 proposes a rate class solely for a new customer, the electric
33-46 cooperative shall estimate the reasonable annual cost of providing
33-47 service to the class, and the electric cooperative shall base class
33-48 revenues on reasonable estimates of billing units.
33-49 (l) The rate for each class for which review has been
33-50 requested under Subsection (g)(3) of this section is suspended
33-51 during the pendency of the review. The commission shall dismiss
33-52 the petition and approve the rates if the revenues for the class
33-53 are equal to or greater than the cost of providing service to the
33-54 class. The commission shall disapprove the rate if the revenues
33-55 for the class are less than the cost of providing service to the
33-56 class; however, this action does not affect reconsideration of the
33-57 rate as a part of any subsequent rate-making proceeding. The rate
33-58 adopted by the electric cooperative is deemed approved and may be
33-59 placed into effect if the commission fails to make its final
33-60 determination administratively not later than the 45th day after
33-61 the date the electric cooperative files its cost-of-service study.
33-62 (m) Except as provided by Subsection (a) of this section,
33-63 the members of an electric cooperative may at any time revoke the
33-64 electric cooperative's election to be exempt from rate regulation
33-65 or elect to again be exempt from rate regulation by majority vote
33-66 of the members voting.
33-67 (n) This section does not affect the application of other
33-68 provisions of this Act not directly related to rates or to the
33-69 authority of the commission to require an electric cooperative to
33-70 file reports required under this Act or rules adopted by the
34-1 commission. A service fee or a service rule or regulation set by
34-2 the electric cooperative under this section must comply with
34-3 commission rules applicable to all electric utilities. The
34-4 commission may determine whether an electric cooperative has
34-5 unlawfully charged, collected, or received a rate for electric
34-6 utility service.
34-7 (o) A single customer may seek a review of the rates of an
34-8 electric cooperative pursuant to Section 2.211 of this Act if the
34-9 customer consumes more than 250,000,000 kwh and purchases more than
34-10 10 percent of the total energy sales or more than 7.5 percent of
34-11 the revenues of the electric cooperative in any period of 12
34-12 consecutive months within the 36 months preceding the date on which
34-13 that customer initiates a proceeding under Section 2.211 of this
34-14 Act. A right conferred by this subsection is in addition to rights
34-15 that the customer has under Subsection (g) of this section and not
34-16 in limitation or in lieu of those rights.
34-17 SECTION 2.16. Subsection (b), Section 2.203, Public Utility
34-18 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
34-19 74th Legislature, Regular Session, 1995, is amended to read as
34-20 follows:
34-21 (b) In fixing a reasonable return on invested capital, the
34-22 regulatory authority shall consider, in addition to other
34-23 applicable factors, efforts to comply with the utility's most
34-24 recently approved individual integrated resource <statewide energy>
34-25 plan, the efforts and achievements of such utility in the
34-26 conservation of resources, the quality of the utility's services,
34-27 the efficiency of the utility's operations, and the quality of the
34-28 utility's management.
34-29 SECTION 2.17. Subsections (b) and (d), Section 2.208, Public
34-30 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
34-31 the 74th Legislature, Regular Session, 1995, are amended to read as
34-32 follows:
34-33 (b) Transactions with Affiliated Interests. Payment to
34-34 affiliated interests for costs of any services or any property,
34-35 right, or thing or for interest expense may not be allowed either
34-36 as capital cost or as expense except to the extent that the
34-37 regulatory authority shall find such payment to be reasonable and
34-38 necessary for each item or class of items as determined by the
34-39 commission. Any such finding shall include specific findings of
34-40 the reasonableness and necessity of each item or class of items
34-41 allowed and a finding that the price to the utility is no higher
34-42 than prices charged by the supplying affiliate to its other
34-43 affiliates or divisions for the same item or class of items or to
34-44 unaffiliated persons or corporations. <The price paid by gas
34-45 utilities to affiliated interests for natural gas from Outer
34-46 Continental Shelf lands shall be subject to a rebuttable
34-47 presumption that such price is reasonable if the price paid does
34-48 not exceed the price permitted by federal regulation if such gas is
34-49 regulated by any federal agency or if not regulated by a federal
34-50 agency does not exceed the price paid by nonaffiliated parties for
34-51 natural gas from Outer Continental Shelf lands. The burden of
34-52 establishing that such a price paid is not reasonable shall be on
34-53 any party challenging the reasonableness of such price.>
34-54 (d) Expenses Disallowed. The regulatory authority may not
34-55 consider for ratemaking purposes the following expenses:
34-56 (1) legislative advocacy expenses, whether made
34-57 directly or indirectly, including but not limited to legislative
34-58 advocacy expenses included in trade association dues;
34-59 (2) payments, except those made under an insurance or
34-60 risk-sharing arrangement executed before the date of loss, made to
34-61 cover costs of an accident, equipment failure, or negligence at a
34-62 utility facility owned by a person or governmental body not selling
34-63 power inside the State of Texas;
34-64 (3) costs of processing a refund or credit under
34-65 Subsection (e) of Section 2.212 of this Act; or
34-66 (4) any expenditure found by the regulatory authority
34-67 to be unreasonable, unnecessary, or not in the public interest,
34-68 including but not limited to executive salaries, advertising
34-69 expenses, legal expenses, and civil or administrative penalties or
34-70 fines.
35-1 SECTION 2.18. Section 2.211, Public Utility Regulatory Act
35-2 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
35-3 Regular Session, 1995, is amended by adding Subsections (c), (d),
35-4 and (e) to read as follows:
35-5 (c) Not later than the 120th day after the date the
35-6 regulatory authority notifies the utility that the regulatory
35-7 authority has decided to proceed with an inquiry under this section
35-8 relating to the rates of the utility, the utility shall file a
35-9 rate-filing package with the regulatory authority. The regulatory
35-10 authority may grant an extension of the 120-day period or waive the
35-11 rate-filing package requirement on agreement of the parties. The
35-12 regulatory authority shall make a final determination concerning
35-13 the matter not later than the 185th day after the date the utility
35-14 files the rate-filing package. However, the 185-day period is
35-15 extended two days for each one day of actual hearing on the merits
35-16 of the case that exceeds 15 days.
35-17 (d) At any time after an initial complaint is filed under
35-18 this section, the regulatory authority may issue an interim order
35-19 fixing temporary rates for the utility that will continue until a
35-20 final determination on the matter is made. On issuance of a final
35-21 order, the regulatory authority may require the utility to refund
35-22 to customers or to credit against future bills all sums collected
35-23 during the period in which those temporary rates were in effect
35-24 that are in excess of the rate finally ordered, plus interest at
35-25 the current rate as finally determined by the commission or, if the
35-26 amounts collected during the period in which the temporary rates
35-27 were in effect are less than the amounts that would have been
35-28 collected under the rate finally ordered, the regulatory authority
35-29 shall authorize the utility to surcharge bills to recover the
35-30 difference between those amounts, plus interest on the amount of
35-31 the difference at the current rate as finally determined by the
35-32 commission.
35-33 (e) If the 185-day period has been extended as provided by
35-34 Subsection (c) of this section and the regulatory authority has not
35-35 issued a final order or fixed temporary rates on or before the
35-36 185th day, the rates charged by the utility on that 185th day
35-37 automatically become temporary rates. On issuance of a final
35-38 order, the regulatory authority shall require the utility to refund
35-39 to customers or to credit against future bills all sums collected
35-40 during the period in which those temporary rates were in effect
35-41 that are in excess of the rate finally ordered, plus interest at
35-42 the current rate as finally determined by the commission or, if the
35-43 amounts collected during the period in which the temporary rates
35-44 were in effect are less than the amounts that would have been
35-45 collected under the rate finally ordered, the regulatory authority
35-46 shall authorize the utility to surcharge bills to recover the
35-47 difference between those amounts, plus interest on the amount of
35-48 the difference at the current rate as finally determined by the
35-49 commission.
35-50 SECTION 2.19. Subsections (a), (e), and (g), Section 2.212,
35-51 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
35-52 Acts of the 74th Legislature, Regular Session, 1995, are amended to
35-53 read as follows:
35-54 (a) Except as provided by Section 2.105(c) of this Act, a
35-55 <A> utility may not make changes in its rates except by filing a
35-56 statement of intent with the regulatory authority having original
35-57 jurisdiction at least 35 days prior to the effective date of the
35-58 proposed change. The statement of intent shall include proposed
35-59 revisions of tariffs and schedules and a statement specifying in
35-60 detail each proposed change, the effect the proposed change is
35-61 expected to have on the revenues of the company, the classes and
35-62 numbers of utility consumers affected, and such other information
35-63 as may be required by the regulatory authority's rules and
35-64 regulations. A copy of the statement of intent shall be mailed or
35-65 delivered to the appropriate officer of each affected municipality,
35-66 and notice shall be given by publication in conspicuous form and
35-67 place of a notice to the public of such proposed change once in
35-68 each week for four successive weeks prior to the effective date of
35-69 the proposed change in a newspaper having general circulation in
35-70 each county containing territory affected by the proposed change
36-1 and by mail to such other affected persons as may be required by
36-2 the regulatory authority's rules and regulations. The regulatory
36-3 authority may waive the publication of notice requirement
36-4 prescribed by this subsection in a proceeding that involves a rate
36-5 reduction for all affected ratepayers only. The applicant shall
36-6 give notice of the proposed rate change by mail to all affected
36-7 utility customers. The regulatory authority by rule shall also
36-8 define other proceedings for which the publication of notice
36-9 requirement prescribed by this subsection may be waived on a
36-10 showing of good cause, provided that a waiver may not be granted in
36-11 any proceeding involving a rate increase to any class or category
36-12 of ratepayer.
36-13 (e) If the 150-day period has been extended, as provided for
36-14 in Subsection (d) of this section, and the commission fails to make
36-15 its final determination of rates within 150 days from the date that
36-16 the proposed change otherwise would have gone into effect, the
36-17 utility concerned may put a changed rate, not to exceed the
36-18 proposed rate, into effect throughout all areas in which the
36-19 utility sought to change its rates, including the areas over which
36-20 the commission is exercising its appellate and its original
36-21 jurisdiction, on the filing with the commission <regulatory
36-22 authority> of a bond payable to the commission <regulatory
36-23 authority> in an amount and with sureties approved by the
36-24 commission <regulatory authority> conditioned upon refund and in a
36-25 form approved by the commission <regulatory authority>. The
36-26 utility concerned shall refund or credit against future bills all
36-27 sums collected during the period of suspension in excess of the
36-28 rate finally ordered plus interest at the current rate as finally
36-29 determined by the commission <regulatory authority>.
36-30 (g)(1) Except as permitted by Section 2.051 of this Act, a
36-31 <A> rate or tariff set by the commission may not authorize a
36-32 utility to automatically adjust and pass through to its customers
36-33 changes in fuel or other costs of the utility.
36-34 (2)(A) Subdivision (1) of this subsection does not
36-35 prohibit the commission from reviewing and providing for
36-36 adjustments of a utility's fuel factor. The commission by rule
36-37 shall implement procedures that provide for the timely adjustment
36-38 of a utility's fuel factor, with or without a hearing. The
36-39 procedures shall provide that the findings required by Section
36-40 2.208(b) of this Act regarding fuel transactions with affiliated
36-41 interests are made in a fuel reconciliation proceeding or in a rate
36-42 case filed under Subsection (a) of this section or under Section
36-43 2.211 of this Act. The procedures shall provide an affected party
36-44 notice and the opportunity to request a hearing before the
36-45 commission. However, the commission may adjust a utility's fuel
36-46 factor without a hearing if the commission determines that a
36-47 hearing is not necessary. If the commission holds a hearing, the
36-48 <Any revision of a utility's billings to its customers to allow for
36-49 the recovery of additional fuel costs may be made only upon a
36-50 public hearing and order of the commission.>
36-51 <(B) The> commission may consider any evidence
36-52 that is appropriate and in the public interest at such hearing.
36-53 The commission shall render a timely decision approving,
36-54 disapproving, or modifying the adjustment to the utility's fuel
36-55 factor.
36-56 (B) The commission by rule shall provide for the
36-57 reconciliation of a utility's fuel costs on a timely basis.
36-58 (C) A proceeding under this subsection may not
36-59 be considered a rate case under this section.
36-60 (3) <The commission may, after a hearing, grant
36-61 interim relief for fuel cost increases that are the result of
36-62 unusual and emergency circumstances or conditions.>
36-63 <(4)>(A) This subsection applies only to increases or
36-64 decreases in the cost of purchased electricity which have been:
36-65 (i) accepted by a federal regulatory
36-66 authority; or
36-67 (ii) approved after a hearing by the
36-68 commission.
36-69 (B) The commission may utilize any appropriate
36-70 method to provide for the adjustment of the cost of purchased
37-1 electricity upon such terms and conditions as the commission may
37-2 determine. Such purchased electricity costs may be recovered
37-3 concurrently with the effective date of the changed costs to the
37-4 purchasing utility or as soon thereafter as is reasonably
37-5 practical.
37-6 (C) The commission may also provide for a
37-7 mechanism to allow any public utility that has a noncontiguous
37-8 geographical service area, and that purchases power for resale for
37-9 that noncontiguous service area from public utilities that are not
37-10 members of the Electric Reliability Council of Texas, to recover
37-11 purchased power cost for that area in a manner that reflects the
37-12 purchased power cost for that specific geographical noncontiguous
37-13 area. The commission may not, however, require such a mechanism
37-14 for any electric cooperative corporation unless requested by the
37-15 electric cooperative corporation.
37-16 SECTION 2.20. Section 2.215, Public Utility Regulatory Act
37-17 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
37-18 Regular Session, 1995, is amended by adding Subsection (c) to read
37-19 as follows:
37-20 (c) Notwithstanding any other provision of this Act, when
37-21 the commission has approved the establishment of a separate rate
37-22 class for electric service for a university and has grouped public
37-23 schools in a separate rate class, the commission shall include
37-24 community colleges in the rate class with public school customers.
37-25 SECTION 2.21. Section 2.251, Public Utility Regulatory Act
37-26 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
37-27 Regular Session, 1995, is amended to read as follows:
37-28 Sec. 2.251. DEFINITION. For the purposes of this subtitle
37-29 only, "retail public utility" means any person, corporation,
37-30 municipality, political subdivision or agency, or cooperative
37-31 corporation, now or hereafter operating, maintaining, or
37-32 controlling in Texas facilities for providing retail public utility
37-33 service, except that a qualifying cogenerator selling electric
37-34 energy at retail to the sole purchaser of the cogenerator's thermal
37-35 output pursuant to Section 2.052 of this Act shall not be
37-36 considered a retail public utility.
37-37 SECTION 2.22. Subsections (d), (e), and (f), Section 2.255,
37-38 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
37-39 Acts of the 74th Legislature, Regular Session, 1995, are amended to
37-40 read as follows:
37-41 (d) This section does not apply to a certificate of
37-42 convenience and necessity for an electric generating plant that is
37-43 requested under Section 2.051 of this Act. The commission may
37-44 grant a certificate of convenience and necessity for an electric
37-45 generating plant only in accordance with Section 2.051 of this Act.
37-46 (e) <(1) In addition to the requirements of this section, an
37-47 electric utility applying for a certificate of convenience and
37-48 necessity for a new generating plant must first file a notice of
37-49 intent to file an application for certification.>
37-50 <(2) The notice of intent shall set out alternative
37-51 methods considered to help meet the electrical needs, related
37-52 electrical facilities, and the advantages and disadvantages of the
37-53 alternatives. In addition, the notice shall indicate compatibility
37-54 with the most recent long-term forecast provided in this Act.>
37-55 <(3) The commission shall conduct a hearing on the
37-56 notice of intent to determine the appropriateness of the proposed
37-57 generating plant as compared to the alternatives and shall issue a
37-58 report on its findings. In conjunction with the issuance of the
37-59 report, the commission shall render a decision approving or
37-60 disapproving the notice. Such decision shall be rendered within
37-61 180 days from the date of filing the notice of intent.>
37-62 <(e)(1) On approval of the notice of intent, a utility may
37-63 apply for certification for a generating plant, site, and site
37-64 facilities not later than 12 months before construction is to
37-65 commence.>
37-66 <(2) The application for certification shall contain
37-67 such information as the commission may require to justify the
37-68 proposed generating plant, site, and site facilities and to allow a
37-69 determination showing compatibility with the most recent forecast.>
37-70 <(3) Certificates of convenience and necessity shall
38-1 be granted on a nondiscriminatory basis if the commission finds
38-2 that the proposed new plant is required under the service area
38-3 forecast, that it is the best and most economical choice of
38-4 technology for that service area as compatible with the
38-5 commission's forecast, and that conservation and alternative energy
38-6 sources cannot meet the need.>
38-7 <(f)> If the application for a certificate of convenience
38-8 and necessity involves new transmission facilities, the commission
38-9 shall approve or deny the application within one year after the
38-10 date the application is filed. If the commission does not approve
38-11 or deny the application before this deadline, any party may seek a
38-12 writ of mandamus in a district court of Travis County to compel the
38-13 commission to make a decision on the application.
38-14 SECTION 2.23. Section 2302.043, Government Code, is amended
38-15 to read as follows:
38-16 Sec. 2302.043. Order or Ruling. (a) A commission order or
38-17 ruling entered under this chapter is considered to have been
38-18 entered or adopted under the Public Utility Regulatory Act of 1995
38-19 <(Article 1446c, Vernon's Texas Civil Statutes)>.
38-20 (b) A commission order or ruling entered under this chapter
38-21 is enforced under Subtitle I, Title I, <Sections 71 through 77 of
38-22 the> Public Utility Regulatory Act of 1995 <(Article 1446c,
38-23 Vernon's Texas Civil Statutes)>.
38-24 SECTION 2.24. (a) The Public Utility Commission of Texas by
38-25 rule shall adopt a statewide integrated resource planning process
38-26 as required by Section 2.051, Public Utility Regulatory Act of
38-27 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
38-28 Regular Session, 1995, and as amended by this Act, not later than
38-29 September 1, 1996.
38-30 (b) The changes in law made by this Act to Section 2.255,
38-31 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
38-32 Acts of the 74th Legislature, Regular Session, 1995, take effect
38-33 September 1, 1996, and apply only to an application for a
38-34 certificate of convenience and necessity filed on or after that
38-35 date, except that, in the case of a utility for which the
38-36 commission has not yet approved an individual integrated resource
38-37 plan as of September 1, 1996, an application for a certificate of
38-38 convenience and necessity is governed by the law in effect
38-39 immediately preceding the effective date of this Act until the
38-40 commission approves an integrated resource plan for the utility.
38-41 SECTION 2.25. The Public Utility Commission of Texas shall
38-42 adopt the initial rules required by Section 2.057, Public Utility
38-43 Regulatory Act of 1995, as added by this Act, not later than the
38-44 180th day after the effective date of this Act.
38-45 SECTION 2.26. An exempt wholesale generator or power
38-46 marketer required to register under Subsection (c), Section 2.053,
38-47 Public Utility Regulatory Act of 1995, as added by this Act, shall
38-48 register not later than the 90th day after the effective date of
38-49 this Act.
38-50 SECTION 2.27. Except as otherwise provided by this Act, this
38-51 Act takes effect September 1, 1995.
38-52 SECTION 2.28. The importance of this legislation and the
38-53 crowded condition of the calendars in both houses create an
38-54 emergency and an imperative public necessity that the
38-55 constitutional rule requiring bills to be read on three several
38-56 days in each house be suspended, and this rule is hereby suspended,
38-57 and that this Act take effect and be in force according to its
38-58 terms, and it is so enacted.
38-59 * * * * *