By: Madla S.B. No. 1264
99S0825/1
A BILL TO BE ENTITLED
AN ACT
1-1 relating to municipal regulation of and fee assessment for the use
1-2 of a public right-of-way.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 214, Local Government Code, is amended by
1-5 adding Subchapter D to read as follows:
1-6 SUBCHAPTER D. PIPELINES
1-7 Sec. 214.201. DEFINITIONS. In this subchapter:
1-8 (1) "Commission" means the Railroad Commission of
1-9 Texas.
1-10 (2) "Local distribution company" means a person that
1-11 owns or operates a line of pipe within a municipal service area and
1-12 holds itself out to residential customers generally within the
1-13 municipal service area to provide public utility service through
1-14 the line of pipe for a fee.
1-15 (3) "Pipeline" means a line of pipe, including all
1-16 space between the outer walls of the pipe, for conveying materials,
1-17 including natural gas, natural gas liquids, crude oil and oil
1-18 products, and other hydrocarbons and components thereof, but does
1-19 not include a line of pipe owned or operated by a local
1-20 distribution company.
1-21 (4) "Public right-of-way" means a county, municipal,
1-22 or other public highway, road, street, alley, sidewalk, drain, or
1-23 other right-of-way or easement.
1-24 Sec. 214.202. PERMISSIBLE REGULATION. (a) A municipality
2-1 by ordinance may regulate the placement, construction, or removal
2-2 of a pipeline in the municipality to avoid interference by the
2-3 pipeline with the use of a public right-of-way over which the
2-4 municipality exercises control or in which it owns an interest, to
2-5 the extent regulation is within the police power of the
2-6 municipality to enact and is not proscribed by federal or other
2-7 state law. However, a municipality may not unreasonably withhold,
2-8 condition, or delay its consent to the placement, construction, or
2-9 removal of a pipeline on, along, under, over, or across a public
2-10 right-of-way.
2-11 (b) Nothing in this section shall be construed to limit or
2-12 restrict the right of a municipality to grant a franchise to a
2-13 local distribution company.
2-14 Sec. 214.203. REGULATORY FEES. (a) A municipality by
2-15 ordinance may impose regulatory fees, including fees for
2-16 construction permits, on the owner or operator of a pipeline
2-17 located on, along, under, over, or across a public right-of-way
2-18 within a municipality. The regulatory fees may not exceed amounts
2-19 reasonably necessary to cover the actual cost of regulation
2-20 permitted by this subchapter. Except as authorized by this
2-21 section, a municipality may not impose a fee or otherwise charge,
2-22 whether as rental, consent charge, including in connection with any
2-23 consent under Chapter 181, Utilities Code, or otherwise, for the
2-24 placement, construction, maintenance, repair, replacement,
2-25 operation, use, benefit of use, or removal of a pipeline by any
2-26 person, including an owner or operator of a pipeline or a person
3-1 who transports or markets through a pipeline, on, along, under,
3-2 over, or across a public right-of-way.
3-3 (b) Nothing in this section shall be construed to limit or
3-4 restrict the right of a municipality to impose a franchise fee on a
3-5 local distribution company.
3-6 (c) Any person may appeal to the commission from any action
3-7 to impose a fee on such person for the placement, construction,
3-8 maintenance, repair, replacement, operation, use, or removal of a
3-9 pipeline on, along, under, over, or across a public right-of-way.
3-10 The commission shall hear the appeal de novo. Unless the
3-11 municipality establishes that the fee is authorized by this
3-12 section, the commission shall declare the fee invalid or order the
3-13 fee reduced to the amount authorized by this section. The
3-14 commission has exclusive jurisdiction to determine whether the fee
3-15 is authorized by this section. An appeal to the commission under
3-16 this section must be filed not later than the 180th day after the
3-17 date of receipt from the municipality of written notice of the fee
3-18 or December 31, 1999, whichever is later. Neither payment of a fee
3-19 under protest nor acceptance of an ordinance shall waive or
3-20 otherwise defeat the right of appeal granted by this section.
3-21 (d) Any party to an appeal to the commission under this
3-22 section may petition a district court in Travis County for judicial
3-23 review of the decision of the commission under the substantial
3-24 evidence rule. The petition must be filed not later than the 30th
3-25 day after the effective date of the decision.
3-26 (e) No municipality may bring suit to collect a fee for the
4-1 placement, construction, maintenance, repair, replacement,
4-2 operation, use, or removal of a pipeline on, along, under, over, or
4-3 across a public right-of-way during any period earlier than two
4-4 years before commencement of the suit.
4-5 SECTION 2. Section 182.025, Tax Code, is amended to read as
4-6 follows:
4-7 Sec. 182.025. CHARGES BY A CITY. (a) An incorporated city
4-8 or town may, by ordinance, make a reasonable lawful charge for the
4-9 use of a city street, alley, or public way by a public utility in
4-10 the course of its business.
4-11 (b) Subject to Subsection (d), the [The] total charges,
4-12 however designated or measured, may not exceed two percent of the
4-13 gross receipts of the public utility for the sale of gas, electric
4-14 energy, or water within the city.
4-15 (c) If a public utility taxed under this subchapter pays a
4-16 special tax, rental, contribution, or charge under a contract or
4-17 franchise executed before May 1, 1941, the city shall credit the
4-18 payment against the amount owed by the public utility on any charge
4-19 allowable under Subsection (a) [of this section].
4-20 (d) Notwithstanding Subsections (a), (b), and (c), an
4-21 incorporated city or town may not charge any person for the use of
4-22 a city street, alley, or public way for the sale, transport, or
4-23 distribution of natural gas, except that an incorporated city or
4-24 town may charge a local distribution company for the sale of
4-25 natural gas by the local distribution company in the course of its
4-26 business under Subsections (a), (b), and (c), and, subject to
5-1 Subsection (e), may charge for natural gas transported or
5-2 distributed by a local distribution company for a person other than
5-3 the local distribution company for delivery to an end-user who
5-4 consumes such natural gas within the incorporated city or town,
5-5 total charges, however designated or measured, not to exceed the
5-6 greater of (i) two percent or (ii) the percentage of gross receipts
5-7 payable to the incorporated city or town with respect to sales of
5-8 natural gas by the local distribution company under the provisions
5-9 of the contract, agreement, or franchise made between the
5-10 incorporated city or town and the local distribution company, of
5-11 the imputed value of such natural gas as defined in Subsection (h).
5-12 (e) An incorporated city or town may not impose a charge on
5-13 natural gas transported or distributed for others by a local
5-14 distribution company under Subsection (d) if, on or after September
5-15 1, 1999, the incorporated city or town commences or continues to
5-16 prosecute against any person one or more lawsuits for the recovery
5-17 of charges for, arising out of, or related to the use of city
5-18 streets, alleys, or public ways for the sale, transport, or
5-19 distribution of natural gas at any time prior to September 1, 1999,
5-20 except for charges made under a contract, agreement, or franchise
5-21 made between the incorporated city or town and the local
5-22 distribution company and provided such charges are only imposed on
5-23 and asserted against such local distribution company.
5-24 (f) After December 31, 1999, an incorporated city or town
5-25 may not commence a lawsuit against any person to recover charges
5-26 for the use of city streets, alleys, or public ways prior to
6-1 September 1, 1999, for the sale, delivery, transport, or
6-2 distribution of natural gas other than a charge made under a
6-3 contract, agreement, or franchise made between an incorporated city
6-4 or town and a local distribution company and provided such charge
6-5 is only imposed on and asserted against such local distribution
6-6 company.
6-7 (g) Any charge imposed by an incorporated city or town under
6-8 Subsection (d) shall be imposed on the end-user who consumes the
6-9 natural gas within the incorporated city or town but shall be
6-10 collected and remitted to the incorporated city or town by the
6-11 local distribution company.
6-12 (h) In this section:
6-13 (1) "Imputed value of natural gas" means, for natural
6-14 gas delivered by the local distribution company in a calendar
6-15 month, the sum of:
6-16 (A) the Delivered Spot-Gas Price, Houston Ship
6-17 Channel/Beaumont Texas index (large packages only) as first
6-18 reported for such calendar month by Inside F.E.R.C.'s Gas Market
6-19 Report, published by The McGraw-Hill Companies, Inc., or, if such
6-20 index is no longer reported, such index as shall be selected and
6-21 announced by the Railroad Commission of Texas; and
6-22 (B) the published tariff charge for
6-23 transportation of such natural gas by the local distribution
6-24 company from the point the natural gas first enters the local
6-25 distribution company's local distribution pipeline system to the
6-26 point of delivery of such system.
7-1 (2) "Local distribution company" means a person that
7-2 owns or operates a line of pipe within a municipal service area and
7-3 holds itself out to residential customers generally within the
7-4 municipal service area to provide public utility service through
7-5 the line of pipe for a fee.
7-6 SECTION 3. (a) This Act takes effect September 1, 1999.
7-7 (b) Section 1 of this Act applies to any action or
7-8 proceeding relating to the regulation of pipelines in a
7-9 municipality without regard to whether the action was commenced
7-10 before, on, or after the effective date of this Act.
7-11 SECTION 4. The importance of this legislation and the
7-12 crowded condition of the calendars in both houses create an
7-13 emergency and an imperative public necessity that the
7-14 constitutional rule requiring bills to be read on three several
7-15 days in each house be suspended, and this rule is hereby suspended.