1-1     By:  Chisum, et al. (Senate Sponsor - Bivins)         H.B. No. 1692
 1-2           (In the Senate - Received from the House April 27, 2001;
 1-3     April 30, 2001, read first time and referred to Committee on
 1-4     Business and Commerce; May 11, 2001, reported adversely, with
 1-5     favorable Committee Substitute by the following vote:  Yeas 5, Nays
 1-6     0; May 11, 2001, sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 1692                  By:  Sibley
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to customer protections applicable to certain electric
1-11     utilities.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1. Sections 39.401, 39.402, and 39.407, Utilities
1-14     Code, are amended to read as follows:
1-15           Sec. 39.401.  APPLICABILITY. This subchapter shall apply to
1-16     investor-owned electric utilities operating solely outside of ERCOT
1-17     having fewer than six synchronous interconnections with voltage
1-18     levels above 69 kilovolts systemwide on the effective date of this
1-19     subchapter.  The legislature finds [This subchapter recognizes]
1-20     that circumstances exist that require that areas served by such
1-21     utilities be treated as competitive development areas in which it
1-22     is not in the public interest to transition to full retail customer
1-23     choice at this time [may develop on a more structured schedule than
1-24     is anticipated for the rest of the state.  If there are any
1-25     conflicts between this subchapter and any other provisions of this
1-26     chapter, the provisions of this subchapter shall control, but shall
1-27     not be deemed to limit or in any way restrict any provision of this
1-28     title that governs customer protection or quality or reliability of
1-29     service].
1-30           Sec. 39.402.  REGULATION OF UTILITY AND TRANSITION TO
1-31     COMPETITION [PLAN]. (a)  Until the later of January 1, 2007, or the
1-32     date on which an electric utility subject to this subchapter is
1-33     authorized by the commission to implement customer choice, the
1-34     rates of the utility shall be regulated under traditional cost of
1-35     service regulation and the utility is subject to all applicable
1-36     regulatory authority prescribed by this subtitle and Subtitle A,
1-37     including Chapters 14, 32, 33, 36, and 37.  Until the date on which
1-38     an electric utility subject to this subchapter implements customer
1-39     choice, the provisions of this chapter, other than this subchapter,
1-40     Section 39.904, and the provisions relating to the duty to obtain a
1-41     permit from the Texas Natural Resource Conservation Commission for
1-42     an electric generating facility and to reduce emissions from an
1-43     electric generating facility, shall not apply to that utility. That
1-44     portion of any commission order entered before September 1, 2001,
1-45     to comply with this subchapter shall be null and void.
1-46           (b)  Until the date on which an electric utility subject to
1-47     this subchapter implements customer choice, Section 33.008 does not
1-48     apply and the utility shall pay franchise fees to a municipality as
1-49     required by the utility's franchise agreement with the
1-50     municipality. After the date on which an electric utility subject
1-51     to this subchapter implements customer choice, Section 33.008
1-52     applies.  However, for purposes of computing the franchise fees as
1-53     provided by Section 33.008(b), the calendar year immediately
1-54     preceding the implementation of customer choice shall be
1-55     substituted for the year 1998.
1-56           (c)  On or after January 1, 2007, an electric utility [All
1-57     electric utilities] subject to this subchapter may choose to
1-58     participate in customer choice.  An electric utility that chooses
1-59     to participate in customer choice shall file a transition to
1-60     competition plan with the commission [not later than December 1,
1-61     2000].  This transition to competition plan shall identify how
1-62     utilities subject to this subchapter intend to mitigate market
1-63     power and [shall] achieve full customer choice, including specific
1-64     alternatives for constructing additional transmission facilities,
 2-1     auctioning rights to generation capacity, divesting generation
 2-2     capacity, or any other measure [necessary for the electric utility
 2-3     to meet the requirements of Section 39.152(a) and] that is
 2-4     consistent with the public interest.  The utility shall also
 2-5     include in the transition to competition plan a provision to
 2-6     establish a  price to beat for residential customers and commercial
 2-7     customers having a peak load of 1,000 kilowatts or less.  The
 2-8     commission may prescribe additional information or provisions that
 2-9     must be included in the plan.  The commission shall approve,
2-10     modify, or reject a plan within 180 days after the date of a filing
2-11     under this section; provided, however, that if a hearing is
2-12     requested by any party to the proceeding, the 180-day deadline will
2-13     be extended one day for each day of hearings. The transition to
2-14     competition plan may be updated or amended annually [as
2-15     circumstances change], subject to commission approval until the
2-16     applicable power region is certified as a qualifying power region
2-17     under Section 39.152.
2-18           (d)  On implementation of customer choice, an electric
2-19     utility subject to this subchapter is subject to the provisions of
2-20     this subtitle and Subtitle A to the same extent as other electric
2-21     utilities, including the provisions of Chapter 37 concerning
2-22     certificates of convenience and necessity.
2-23           Sec. 39.407.  CUSTOMER CHOICE AND RELEVANT MARKET AND RELATED
2-24     MATTERS. (a)  If an electric utility chooses on or after January 1,
2-25     2007, to participate in customer choice, the commission may not
2-26     authorize customer choice until the applicable power region has
2-27     been certified as a qualifying power region under Section
2-28     39.152(a).  Except as otherwise provided by this subsection, the
2-29     [The] commission shall certify that the requirements of Section
2-30     39.152(a)(3) are met for electric utilities subject to this
2-31     subchapter only upon a finding that the total capacity owned and
2-32     controlled by each such electric utility and its affiliates does
2-33     not exceed 20 percent of the total installed generation capacity
2-34     within the constrained geographic region served by each such
2-35     electric utility plus the total available transmission capacity
2-36     capable of delivering firm power and energy to that constrained
2-37     geographic region.   Not later than May 1, 2002, each electric
2-38     utility subject to this subchapter shall submit to the electric
2-39     utility restructuring legislative oversight committee an analysis
2-40     of the needed transmission facilities necessary to make the
2-41     electric utility's service area transmission capability comparable
2-42     to areas within the ERCOT power region.  On or after September 1,
2-43     2003, each electric utility subject to this subchapter shall file
2-44     the utility's plans to develop the utility's transmission
2-45     interconnections with the utility's power region or other adjacent
2-46     power regions.  The commission shall review the plan and not later
2-47     than the 180th day after the date the plan is filed, determine the
2-48     additional transmission facilities necessary to provide access to
2-49     power and energy that is comparable to the access provided in areas
2-50     within the ERCOT power region; provided, however, that if a hearing
2-51     is requested by any party to the proceeding, the 180-day deadline
2-52     will be extended one day for each day of hearings.  The commission
2-53     shall, as a part of the commission's approval of the plan, approve
2-54     a rate rider mechanism for the recovery of the incremental costs of
2-55     those facilities after the facilities are completed and in-service.
2-56     A finding of need under this subsection shall meet the requirements
2-57     of Sections 37.056(c)(1), (2), and (4)(E).  The commission may
2-58     certify that the requirements of Section 39.152(a)(3) are met for
2-59     electric utilities subject to this subchapter if the commission
2-60     finds that:
2-61                 (1)  each such utility has sufficient transmission
2-62     facilities to provide customers access to power and energy from
2-63     capacity controlled by suppliers not affiliated with the incumbent
2-64     utility that is comparable to the access to power and energy from
2-65     capacity controlled by suppliers not affiliated with the incumbent
2-66     utilities in areas of the ERCOT power region; and
2-67                 (2)  the total capacity owned and controlled by each
2-68     such electric utility and its affiliates does not exceed 20 percent
2-69     of the total installed generation capacity within the power region.
 3-1           (b)  In the area of a power region served by an electric
 3-2     utility subject to this subchapter, the electric utility may not
 3-3     choose to participate in customer choice unless [if customer choice
 3-4     is introduced before the requirements of Section 39.152(a) are met,
 3-5     an affiliated retail electric provider of an electric utility
 3-6     subject to this subchapter may not compete for retail customers in
 3-7     any area of the power region that is within this state and outside
 3-8     of the affiliated transmission and distribution utility's
 3-9     certificated service area unless] the affiliated power generation
3-10     company makes a commitment to maintain and does maintain rates that
3-11     are based on cost of service for any electric cooperative or
3-12     municipally owned utility that was a wholesale customer on the date
3-13     the utility chooses to participate in customer choice [January 1,
3-14     1999,] and was purchasing power at rates that were based on cost of
3-15     service.  This subsection requires a power generation company to
3-16     sell power at rates that are based on cost of service,
3-17     notwithstanding the expiration of a contract for that service,
3-18     until the requirements of Section 39.152(a) are met.
3-19           (c)  If the requirements of Section 39.152(a) have not been
3-20     met for an electric utility subject to this subchapter when the
3-21     electric utility chooses to participate in customer choice, then
3-22     any power generation company in the power region affiliated with an
3-23     electric utility subject to this subchapter shall maintain adequate
3-24     supply and facilities to provide electric service to persons who
3-25     were [or would have been] retail customers of the electric utility
3-26     on the date the utility chooses to participate in customer choice
3-27     [affiliated retail electric provider on December 31, 2001]. The
3-28     obligation provided by this subsection remains in effect until the
3-29     commission determines that the requirements of Section 39.152(a)
3-30     have been met for the region.
3-31           SECTION 2. Subchapter I, Chapter 39, Utilities Code, is
3-32     amended by adding Sections 39.409 and 39.410 to read as follows:
3-33           Sec. 39.409.  RECOUPMENT OF TRANSITION TO COMPETITION COSTS.
3-34     An electric utility subject to this subchapter is entitled to
3-35     recover, as provided by this section, all reasonable and necessary
3-36     expenditures made or incurred before September 1, 2001, to comply
3-37     with the provisions of this chapter.  Not later than December 1,
3-38     2001, each electric utility subject to this subchapter may file
3-39     with the commission an application for recovery detailing the
3-40     amounts spent or incurred.  After notice and hearing, the
3-41     commission shall review the amounts and, if found to be reasonable
3-42     and necessary, approve a transition to competition retail rate
3-43     rider mechanism for the recovery of the approved transition to
3-44     competition costs.  A rate rider implemented to recover approved
3-45     transition to competition costs shall expire not later than
3-46     December 31, 2006.
3-47           Sec. 39.410.  CONTRACTUAL OBLIGATIONS. This subchapter may
3-48     not:
3-49                 (1)  interfere with or abrogate the rights or
3-50     obligations of any party, including a retail or wholesale customer,
3-51     to a contract with an investor-owned electric utility, river
3-52     authority, municipally owned utility, or electric cooperative;
3-53                 (2)  interfere with or abrogate the rights or
3-54     obligations of a party under a contract or agreement concerning
3-55     certificated utility service areas; or
3-56                 (3)  result in a change in wholesale power costs to
3-57     wholesale customers in Texas purchasing electricity under wholesale
3-58     power contracts the pricing provisions of which are based on
3-59     formulary rates, fuel adjustments, or average system costs.
3-60           SECTION 3. Sections 39.403, 39.404, 39.405, 39.406, and
3-61     39.408, Utilities Code, are repealed.
3-62           SECTION 4.  This Act takes effect immediately if it receives
3-63     a vote of two-thirds of all the members elected to each house, as
3-64     provided by Section 39, Article III, Texas Constitution.  If this
3-65     Act does not receive the vote necessary for immediate effect, this
3-66     Act takes effect September 1, 2001.
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