79R4414 JJT-F

By:  King of Parker                                               H.B. No. 1777


A BILL TO BE ENTITLED
AN ACT
relating to regulation of the electric power market. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 15.024(c), Utilities Code, as amended by Chapters 1212 and 1579, Acts of the 76th Legislature, Regular Session, 1999, is reenacted and amended to read as follows: (c) A penalty may not be assessed under this section if the person against whom the penalty may be assessed remedies the violation before the 31st day after the date the person receives the notice under Subsection (b). A person who claims to have remedied an alleged violation has the burden of proving to the commission that the alleged violation was remedied and was accidental or inadvertent. This subsection does not apply to a violation of Chapter 42, [17 or] 55, or 64. SECTION 2. Chapter 17, Utilities Code, is transferred to Subtitle B, Title 2, Utilities Code, redesignated as Chapter 42, Utilities Code, and amended to read as follows:
CHAPTER 42 [17]. CUSTOMER PROTECTION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 42.001 [17.001]. CUSTOMER PROTECTION POLICY. (a) The legislature finds that new developments in [telecommunications services and] the production and delivery of electricity, as well as changes in market structure, marketing techniques, and technology, make it essential that customers have safeguards against fraudulent, unfair, misleading, deceptive, or anticompetitive business practices and against businesses that do not have the technical and financial resources to provide adequate service. (b) The purpose of this chapter is to establish retail customer protection standards and confer on the commission authority to adopt and enforce rules to protect retail customers from fraudulent, unfair, misleading, deceptive, or anticompetitive practices. (c) Nothing in this section shall be construed to abridge customer rights set forth in commission rules in effect at the time of the enactment of this chapter. (d) This chapter does not limit the constitutional, statutory, and common law authority of the office of the attorney general. (e) Nothing in this chapter authorizes a customer to receive retail electric service from a person other than a certificated retail electric utility. Sec. 42.002 [17.002]. DEFINITIONS. In this chapter: (1) "Billing agent" means any entity that submits charges to the billing utility on behalf of itself or any provider of a product or service. (2) "Billing utility" means any [telecommunications provider, as defined by Section 51.002,] retail electric provider[,] or electric utility that issues a bill directly to a customer for any [telecommunications or] electric product or service. (3) ["Certificated telecommunications utility" means a telecommunications utility that has been granted either a certificate of convenience and necessity, a certificate of operating authority, or a service provider certificate of operating authority. [(4)] "Customer" means any person in whose name [telephone or] retail electric service is billed, including individuals, governmental units at all levels of government, corporate entities, and any other entity with legal capacity to be billed for [telephone or] retail electric service. (4) [(5)] "Electric utility" has the meaning assigned by Section 31.002. (5) [(6)] "Retail electric provider" means a person that sells electric energy to retail customers in this state after the legislature authorizes a customer to receive retail electric service from a person other than a certificated retail electric utility. (6) [(7)] "Service provider" means any entity that offers a product or service to a customer and that directly or indirectly charges to or collects from a customer's bill an amount for the product or service on a customer's bill received from a billing utility. [(8) "Telecommunications utility" has the meaning assigned by Section 51.002.] Sec. 42.003 [17.003]. CUSTOMER AWARENESS. (a) The commission shall promote public awareness of changes in the electric market [and telecommunications markets], provide customers with information necessary to make informed choices about available options, and ensure that customers have an adequate understanding of their rights. (b) The commission shall compile a report on customer service at least once each year showing the comparative customer information from reports given to the commission it deems necessary. (c) The commission shall adopt and enforce rules to require a [certificated telecommunications utility, a] retail electric provider[,] or an electric utility to give clear, uniform, and understandable information to customers about rates, terms, services, customer rights, and other necessary information as determined by the commission. (d) Customer awareness efforts by the commission shall be conducted in English and Spanish and any other language as necessary. Sec. 42.004 [17.004]. CUSTOMER PROTECTION STANDARDS. (a) All buyers of [telecommunications and] retail electric services are entitled to: (1) protection from fraudulent, unfair, misleading, deceptive, or anticompetitive practices, including protection from being billed for services that were not authorized or provided; (2) choice of a [telecommunications service provider, a] retail electric provider[,] or an electric utility, where that choice is permitted by law, and to have that choice honored; (3) information in English and Spanish and any other language as the commission deems necessary concerning rates, key terms and conditions, and the basis for any claim of environmental benefits of certain production facilities; (4) protection from discrimination on the basis of race, color, sex, nationality, religion, marital status, income level, or source of income and from unreasonable discrimination on the basis of geographic location; (5) impartial and prompt resolution of disputes with a [certificated telecommunications utility, a] retail electric provider[,] or an electric utility [and disputes with a telecommunications service provider related to unauthorized charges and switching of service]; (6) privacy of customer consumption and credit information; (7) accuracy of metering and billing; (8) bills presented in a clear, readable format and easy-to-understand language; (9) information in English and Spanish and any other language as the commission deems necessary concerning low-income assistance programs and deferred payment plans; (10) all consumer protections and disclosures established by the Fair Credit Reporting Act (15 U.S.C. Section 1681 et seq.) and the Truth in Lending Act (15 U.S.C. Section 1601 et seq.); and (11) after retail competition begins as authorized by the legislature, programs provided by retail electric providers that offer eligible low-income customers energy efficiency programs, an affordable rate package, and bill payment assistance programs designed to reduce uncollectible accounts. (b) The commission may adopt and enforce rules as necessary or appropriate to carry out this section, including rules for minimum service standards for a [certificated telecommunications utility, a] retail electric provider[,] or an electric utility relating to customer deposits and the extension of credit, switching fees, levelized billing programs, and termination of service and to energy efficiency programs, an affordable rate package, and bill payment assistance programs for low-income customers. The commission may waive language requirements for good cause. (c) The commission shall request the comments of the office of the attorney general in developing the rules that may be necessary or appropriate to carry out this section. (d) The commission shall coordinate its enforcement efforts regarding the prosecution of fraudulent, misleading, deceptive, and anticompetitive business practices with the office of the attorney general in order to ensure consistent treatment of specific alleged violations. (e) Nothing in this section shall be construed to abridge customer rights set forth in commission rules or to abridge the rights of low-income customers to receive benefits through pending or operating programs in effect at the time of the enactment of this chapter. (f) The commission shall adopt rules to provide automatic enrollment of eligible utility customers for [lifeline telephone service and] reduced electric rates available to low-income households. Each state agency, on the request of the commission, shall assist in the adoption and implementation of those rules. (g) Notwithstanding any other provision of this title, the rules adopted under Subsection (b) shall provide full, concurrent reimbursement for the costs of any programs provided under Subsection (a)(11) and for reimbursement for the difference between any affordable rate package provided under Subsection (a)(11) and any rates otherwise applicable. Sec. 42.005 [17.005]. PROTECTIONS FOR CUSTOMERS OF MUNICIPALLY OWNED UTILITIES. A municipally owned utility may not be deemed to be a "service provider" or "billing agent" for purposes of Sections 42.156(b) [17.156(b)] and (e). The governing body of a municipally owned utility shall adopt, implement, and enforce rules that shall have the effect of accomplishing the objectives set out in Sections 42.004(a) and (b) and 42.102 [17.004(a) and (b) and 17.102], as to the municipally owned utility within its certificated service area. The governing body of a municipally owned utility or its designee shall perform the dispute resolution function provided for by Section 42.157 [17.157] for disputes arising from services provided by the municipally owned utility to electric customers served within the municipally owned utility's certificated service area. With respect to electric customers served by a municipally owned utility outside its certificated service area or otherwise served through others' distribution facilities, after retail competition begins as authorized by the legislature, the provisions of this chapter as administered by the commission apply. Nothing in this chapter shall be deemed to apply to a wholesale customer of a municipally owned utility. Sec. 42.006 [17.006]. PROTECTIONS FOR CUSTOMERS OF ELECTRIC COOPERATIVES. An electric cooperative shall not be deemed to be a "service provider" or "billing agent" for purposes of Sections 42.156(b) [17.156(b)] and (e). The electric cooperative shall adopt, implement, and enforce rules that shall have the effect of accomplishing the objectives set out in Sections 42.004(a) and (b) and 42.102 [17.004(a) and (b) and 17.102]. The board of directors of the electric cooperative or its designee shall perform the dispute resolution function provided for by Section 42.157 [17.157] for electric customers served by the electric cooperative within its certificated service area. With respect to electric customers served by an electric cooperative outside its certificated service area or otherwise served through others' distribution facilities, after the legislature authorizes retail competition, the provisions of this chapter as administered by the commission shall apply. Nothing in this chapter shall be deemed to apply to a wholesale customer of an electric cooperative. Sec. 42.007 [17.007]. ELIGIBILITY PROCESS FOR CUSTOMER SERVICE DISCOUNTS. The commission by rule shall provide for an integrated eligibility process for customer service discounts, including discounts under Section [Sections] 39.903 [and 55.015].
SUBCHAPTER B. CERTIFICATION, REGISTRATION,
AND REPORTING REQUIREMENTS
Sec. 42.051 [17.051]. ADOPTION OF RULES. (a) The commission shall adopt rules relating to certification, registration, and reporting requirements for a [certificated telecommunications utility, a] retail electric provider[,] or an electric utility, as well as all [telecommunications utilities that are not dominant carriers, pay telephone providers,] qualifying facilities that are selling capacity into the wholesale or retail market, exempt wholesale generators, and power marketers. (b) The rules adopted under Subsections (a) and (c) shall be consistent with and no less effective than federal law and may not require the disclosure of highly sensitive competitive or trade secret information. (c) The commission shall adopt rules governing the local registration of retail electric providers under Section 39.358. Sec. 42.052 [17.052]. SCOPE OF RULES. The commission may adopt and enforce rules to: (1) require certification or registration with the commission as a condition of doing business in this state, except that this requirement does not apply to municipally owned utilities; (2) amend certificates or registrations to reflect changed ownership and control; (3) establish rules for customer service and protection; (4) suspend or revoke certificates or registrations for repeated violations of this chapter or commission rules, except that the commission may not revoke a certificate of convenience and necessity of an electric utility except as provided by Section 37.059 [or a certificate of convenience and necessity of a telecommunications utility except as provided by Section 54.008]; and (5) order [disconnection of a pay telephone service provider's pay telephones or] revocation of certification or registration for repeated violations of this chapter or commission rules. Sec. 42.053 [17.053]. REPORTS. The commission may require a [telecommunications service provider, a] retail electric provider[,] or an electric utility to submit reports to the commission concerning any matter over which it has authority under this chapter.
SUBCHAPTER C. CUSTOMER'S RIGHT TO CHOICE
Sec. 42.101 [17.101]. POLICY. It is the policy of this state that all customers be protected from the unauthorized switching of a [telecommunications service provider, a] retail electric provider[,] or an electric utility selected by the customer to provide service, where choice is permitted by law. Sec. 42.102 [17.102]. RULES RELATING TO CHOICE. The commission shall adopt and enforce rules that: (1) ensure that customers are protected from deceptive practices employed in obtaining authorizations of service and in the verification of change orders, including negative option marketing, sweepstakes, and contests that cause customers to unknowingly change their [telecommunications service provider,] retail electric provider[,] or electric utility, where choice is permitted by law; (2) provide for clear, easily understandable identification, in each bill sent to a customer, of all [telecommunications service providers,] retail electric providers[,] or electric utilities submitting charges on the bill; (3) ensure that every service provider submitting charges on the bill is clearly and easily identified on the bill along with its services, products, and charges; (4) provide that unauthorized changes in service be remedied at no cost to the customer within a period established by the commission; (5) require refunds or credits to the customer in the event of an unauthorized change; and (6) provide for penalties for violations of commission rules adopted under this section, including fines and revocation of certificates or registrations, by this action denying the [certificated telecommunications utility, the] retail electric provider[,] or the electric utility the right to provide service in this state, except that the commission may not revoke a certificate of convenience and necessity of an electric utility except as provided by Section 37.059 [or a certificate of convenience and necessity of a telecommunications utility except as provided by Section 54.008].
SUBCHAPTER D. PROTECTION AGAINST UNAUTHORIZED CHARGES
Sec. 42.151 [17.151]. REQUIREMENTS FOR SUBMITTING CHARGES. (a) A service provider, retail electric provider, or billing agent may submit charges for a new product or service to be billed on a customer's [telephone or] retail electric bill on or after the effective date of this section only if: (1) the service provider offering the product or service has thoroughly informed the customer of the product or service being offered, including all associated charges, and has explicitly informed the customer that the associated charges for the product or service will appear on the customer's [telephone or] electric bill; (2) the customer has clearly and explicitly consented to obtain the product or service offered and to have the associated charges appear on the customer's [telephone or] electric bill and the consent has been verified as provided by Subsection (b); and (3) the service provider offering the product or service and any billing agent for the service provider: (A) has provided the customer with a toll-free telephone number the customer may call and an address to which the customer may write to resolve any billing dispute and to answer questions; and (B) has contracted with the billing utility to bill for products and services on the billing utility's bill as provided by Subsection (c). (b) The customer consent required by Subsection (a)(2) must be verified by the service provider offering the product or service by authorization from the customer. A record of the customer consent, including verification, must be maintained by the service provider offering the product or service for a period of at least 24 months immediately after the consent and verification have been obtained. The method of obtaining customer consent and verification must include one or more of the following: (1) written authorization from the customer; (2) [toll-free electronic authorization placed from the telephone number that is the subject of the product or service; [(3)] oral authorization obtained by an independent third party; or (3) [(4)] any other method of authorization approved by the commission [or the Federal Communications Commission]. (c) The contract required by Subsection (a)(3)(B) must include the service provider's name, business address, and business telephone number and shall be maintained by the billing utility for as long as the billing for the products and services continues and for the 24 months immediately following the permanent discontinuation of the billing. (d) A service provider offering a product or service to be charged on a customer's [telephone or] electric bill and any billing agent for the service provider may not use any fraudulent, unfair, misleading, deceptive, or anticompetitive marketing practice to obtain customers, including the use of negative option marketing, sweepstakes, and contests. (e) Unless verification is required by federal law or rules implementing federal law, Subsection (b) does not apply to customer-initiated transactions with [a certificated telecommunications provider or] an electric utility for which the service provider has the appropriate documentation. (f) If a service provider is notified by a billing utility that a customer has reported to the billing utility that a charge made by the service provider is unauthorized, the service provider shall cease to charge the customer for the unauthorized product or service. [(g) This section does not apply to message telecommunications services charges that are initiated by dialing 1+, 0+, 0-, 1010XXX, or collect calls and charges for video services if the service provider has the necessary call detail record to establish the billing for the call or service.] Sec. 42.152 [17.152]. RESPONSIBILITIES OF BILLING UTILITY. (a) If a customer's [telephone or] retail electric bill is charged for any product or service without proper customer consent or verification, the billing utility, on its knowledge or notification of any unauthorized charge, shall promptly, not later than 45 days after the date of knowledge or notification of the charge: (1) notify the service provider to cease charging the customer for the unauthorized product or service; (2) remove any unauthorized charge from the customer's bill; (3) refund or credit to the customer all money that has been paid by the customer for any unauthorized charge, and if the unauthorized charge is not adjusted within three billing cycles, shall pay interest on the amount of the unauthorized charge; (4) on the customer's request, provide the customer with all billing records under its control related to any unauthorized charge within 15 business days after the date of the removal of the unauthorized charge from the customer's bill; and (5) maintain for at least 24 months a record of every customer who has experienced any unauthorized charge for a product or service on the customer's [telephone or] electric bill and who has notified the billing utility of the unauthorized charge. (b) A record required by Subsection (a)(5) shall contain for each unauthorized charge: (1) the name of the service provider that offered the product or service; (2) any affected [telephone numbers or] addresses; (3) the date the customer requested that the billing utility remove the unauthorized charge; (4) the date the unauthorized charge was removed from the customer's [telephone or] electric bill; and (5) the date any money that the customer paid for the unauthorized charges was refunded or credited to the customer. (c) A billing utility may not: (1) disconnect or terminate [telecommunications or] electric service to any customer for nonpayment of an unauthorized charge; or (2) file an unfavorable credit report against a customer who has not paid charges the customer has alleged were unauthorized unless the dispute regarding the unauthorized charge is ultimately resolved against the customer, except that the customer shall remain obligated to pay any charges that are not in dispute, and this subsection does not apply to those undisputed charges. Sec. 42.153 [17.153]. RECORDS OF DISPUTED CHARGES. (a) Every service provider shall maintain a record of every disputed charge for a product or service placed on a customer's bill. (b) The record required under Subsection (a) shall contain for every disputed charge: (1) any affected [telephone numbers or] addresses; (2) the date the customer requested that the billing utility remove the unauthorized charge; (3) the date the unauthorized charge was removed from the customer's [telephone or] retail electric bill; and (4) the date action was taken to refund or credit to the customer any money that the customer paid for the unauthorized charges. (c) The record required by Subsection (a) shall be maintained for at least 24 months following the completion of all steps required by Section 42.152(a) [17.152(a)]. Sec. 42.154 [17.154]. NOTICE. (a) A billing utility shall provide notice of a customer's rights under this section in the manner prescribed by the commission. (b) Notice of a customer's rights must be provided by mail to each residential and retail business customer within 60 days of [the effective date of this section or by inclusion in the publication of the telephone directory next following] the effective date of this section. In addition, each billing utility shall send the notice to new customers at the time service is initiated or to any customer at that customer's request. Sec. 42.155 [17.155]. PROVIDING COPY OF RECORDS. A billing utility shall provide a copy of records maintained under Sections 42.151(c), 42.152, and 42.154 [17.151(c), 17.152, and 17.154] to the commission staff on request. A service provider shall provide a copy of records maintained under Sections 42.151(b) and 42.153 [17.151(b) and 17.153] to the commission on request. Sec. 42.156 [17.156]. VIOLATIONS. (a) If the commission finds that a billing utility violated this subchapter, the commission may implement penalties and other enforcement actions under Chapter 15. (b) If the commission finds that any other service provider or billing agent subject to this subchapter has violated this subchapter or has knowingly provided false information to the commission on matters subject to this subchapter, the commission may enforce the provisions of Chapter 15 against the service provider or billing agent as if it were regulated by the commission. (c) Neither the authority granted under this section nor any other provision of this subchapter shall be construed to grant the commission jurisdiction to regulate service providers or billing agents who are not otherwise subject to commission regulation, other than as specifically provided by this chapter. (d) If the commission finds that a billing utility or service provider repeatedly violates this subchapter, the commission may, if the action is consistent with the public interest, suspend, restrict, or revoke the registration or certificate of the [telecommunications service provider,] retail electric provider[,] or electric utility, by this action denying the [telecommunications service provider,] retail electric provider[,] or electric utility the right to provide service in this state, except that the commission may not revoke a certificate of convenience and necessity of an electric utility except as provided by Section 37.059 [or a certificate of convenience and necessity of a telecommunications utility except as provided by Section 54.008]. (e) If the commission finds that a service provider or billing agent has repeatedly violated any provision of this subchapter, the commission may order the billing utility to terminate billing and collection services for that service provider or billing agent. (f) Nothing in this subchapter shall be construed to preclude a billing utility from taking action on its own to terminate or restrict its billing and collection services. Sec. 42.157 [17.157]. DISPUTES. (a) The commission may resolve disputes between a retail customer and a billing utility, service provider, [telecommunications utility,] retail electric provider, or electric utility. (b) In exercising its authority under Subsection (a), the commission may: (1) order a billing utility, service provider, retail electric provider, or electric utility to produce information or records; (2) require that all contracts, bills, and other communications from a billing utility, service provider, retail electric provider, or electric utility display a working toll-free telephone number that customers may call with complaints and inquiries; (3) require a billing utility, service provider, retail electric provider, or electric utility to refund or credit overcharges or unauthorized charges with interest if the billing utility, service provider, retail electric provider, or electric utility has failed to comply with commission rules or a contract with the customer; (4) order appropriate relief to ensure that a customer's choice of a [telecommunications service provider, a] retail electric provider[,] or an electric utility that encompasses a geographic area in which more than one provider has been certificated is honored; (5) require the continuation of service to a residential or small commercial customer while a dispute is pending regarding charges the customer has alleged were unauthorized; and (6) investigate an alleged violation. (c) The commission shall adopt procedures for the resolution of disputes in a timely manner, which in no event shall exceed 60 days. Sec. 42.158 [17.158]. CONSISTENCY WITH FEDERAL LAW. Rules adopted by the commission under this subchapter shall be consistent with and not more burdensome than applicable federal laws and rules. Sec. 42.159. COMPLAINT REGARDING RECREATIONAL VEHICLE PARK OWNER. (a) An affected person may complain to the regulatory authority in writing describing an act or omission by a recreational vehicle park owner who provides metered electric service under Subchapter C, Chapter 184, in violation or claimed violation of a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority. (b) The commission shall keep for a reasonable period an information file about each complaint filed with the commission relating to a recreational vehicle park owner. (c) The commission, at least quarterly and until final disposition of the written complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. SECTION 3. Section 33.023, Utilities Code, is amended by amending Subsection (b) and adding Subsection (c) to read as follows: (b) The electric utility in the ratemaking proceeding shall reimburse the governing body of the municipality for the reasonable and necessary cost of the services of a person engaged under Subsection (a) to the extent the applicable regulatory authority determines the cost is reasonable and necessary. (c) In determining whether attorney's fees to be recovered under this section are reasonable and necessary, the applicable regulatory authority shall: (1) consider the factors prescribed by Rule 1.04, Texas Disciplinary Rules of Professional Conduct; and (2) limit the amount of attorney's fees recovered to an amount rationally related to and approximately proportional to the municipality's interest as compared to the interests of other parties in the overall ratemaking proceeding. SECTION 4. Section 35.004(e), Utilities Code, is amended to read as follows: (e) The commission shall ensure that ancillary services necessary to facilitate the transmission of electric energy are made available by suppliers and acquired by the independent organization at reasonable prices with terms and conditions that are not unreasonably preferential, prejudicial, discriminatory, predatory, or anticompetitive. In this subsection, "ancillary services" means services necessary to facilitate the transmission of electric energy including load following, standby power, backup power, reactive power, and any other services as the commission may determine by rule. [On the introduction of customer choice in the ERCOT power region, acquisition of generation-related ancillary services on a nondiscriminatory basis by the independent organization in ERCOT on behalf of entities selling electricity at retail shall be deemed to meet the requirements of this subsection.] SECTION 5. Section 38.001, Utilities Code, is amended to read as follows: Sec. 38.001. GENERAL STANDARD. An electric utility, a municipally owned utility, a power generation company, an independent organization certified under Section 39.151, and an electric cooperative shall furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and reasonable. SECTION 6. Section 38.005, Utilities Code, is amended by amending Subsection (a) and adding Subsections (g) and (h) to read as follows: (a) The commission shall adopt and enforce rules as necessary or appropriate to ensure [implement] service quality and reliability [standards] relating to the delivery of electricity to [retail] customers by electric utilities and transmission and distribution utilities. The commission by rule shall develop reliability standards, including: (1) the system-average interruption frequency index (SAIFI); (2) the system-average interruption duration index (SAIDI); (3) achievement of average response time for customer service requests or inquiries; or (4) other standards that the commission finds reasonable and appropriate. (g) This section does not authorize the commission to: (1) establish or enforce quality standards for local distribution service provided by a municipally owned utility or an electric cooperative; or (2) require reporting of local distribution service quality by a municipally owned utility or an electric cooperative. (h) An electric utility, transmission and distribution utility, retail electric provider, municipally owned utility, electric cooperative, power marketer, independent organization certified under Section 39.151, or power generation company, and any other person scheduling power or operating an electrical facility on behalf of such persons, shall observe all reliability, security, and emergency management rules and orders adopted or issued by the commission. The commission may: (1) take any enforcement action against a person who does not comply with this subsection that is authorized by Subchapter B, Chapter 15; (2) suspend, revoke, or amend an electric utility's or transmission and distribution utility's certificate of public convenience and necessity; (3) suspend, revoke, or amend a retail electric provider's certificate; (4) suspend or revoke a power marketer's registration; or (5) suspend or revoke a power generation company's registration. SECTION 7. Section 39.002, Utilities Code, is amended to read as follows: Sec. 39.002. APPLICABILITY. This chapter, other than Sections 39.151(j), 39.155, 39.157(a) and (e) [39.157(e)], 39.203, 39.903, and 39.904, does not apply to a municipally owned utility or an electric cooperative. Sections 39.157(e), 39.203, and 39.904, however, apply only to a municipally owned utility or an electric cooperative that is offering customer choice. If there is a conflict between the specific provisions of this chapter and any other provisions of this title, except for Chapters 40 and 41, the provisions of this chapter control. SECTION 8. Section 39.103, Utilities Code, is amended to read as follows: Sec. 39.103. COMMISSION AUTHORITY TO DELAY COMPETITION AND SET NEW RATES. (a) If the commission determines under Section 39.104 that a power region is unable to offer fair competition and reliable service to all retail customer classes on January 1, 2002, the commission shall delay customer choice for the power region and may on or after January 1, 2002, establish new rates for all electric utilities in the power region as provided by Chapter 36. (b) In the event of a catastrophic occurrence that causes a disruption of electricity markets and that the governor declares has resulted in an energy emergency, the commission may suspend competitive wholesale and retail market rules and set rates. (c) The commission by rule shall provide for an expedited procedure to exercise its authority under Subsection (b), including provisions for notifying affected persons. (d) The commission is not required to conduct a contested case to exercise its authority under Subsection (b). (e) If the commission determines, after a contested case hearing or an opportunity for a contested case hearing, that a person violated a commission order issued under Subsection (b), the commission may: (1) order the person to refund any compensation the person obtained as a result of the violation; (2) assess an administrative penalty against the person; or (3) take any action against the person authorized by Sections 38.005(h)(2)-(5). SECTION 9. Section 39.151, Utilities Code, is amended by amending Subsections (b), (c), (d), (e), (g), and (j) and adding Subsections (g-1)-(g-5) to read as follows: (b) "Independent organization" means an independent system operator or other person that is sufficiently independent of any producer or seller of electricity that its decisions will not be unduly influenced by any producer or seller. [An entity will be deemed to be independent if it is governed by a board that has three representatives from each segment of the electric market, with the consumer segment being represented by one residential customer, one commercial customer, and one industrial retail customer.] (c) The commission shall certify an independent organization or organizations to perform the functions prescribed by this section. The commission has complete authority to oversee, require the commission's approval of, and order modifications of any part of the finances, budget, or operations of an independent organization certified under this section. (d) An independent organization certified by the commission for a power region shall establish and enforce procedures, consistent with this title and the commission's rules, relating to the reliability of the regional electrical network and accounting for the production and delivery of electricity among generators and all other market participants. The procedures shall be subject to commission oversight, [and] review, and approval. An independent organization certified by the commission is directly responsible and accountable to the commission. The organization shall fully cooperate with the commission in the commission's oversight and investigatory functions. The commission may decertify an organization that does not adequately perform the organization's functions or duties or does not comply with this section. (e) The commission by rule shall require an independent organization certified under this section to provide the commission with sufficiently detailed information to allow the commission to review and approve or disapprove the independent organization's budget for cost efficiencies and for the reasonableness and necessity of budget items. The rules must include a timetable for an independent organization to file its budget for review under the rules. The commission's budget review must include a review of salaries, employee benefits, and the independent organization's use of debt financing. After determining the overall reasonableness and necessity of an independent organization's budget, the [The] commission, in the same proceeding, may authorize the [an] independent organization [that is certified under this section] to charge [a reasonable and competitively neutral rate] to wholesale buyers and sellers a reasonable and competitively neutral rate determined by the commission to allow [cover] the independent organization a reasonable opportunity to take in a reasonable and necessary amount of revenue, as determined by the commission in the budget review process. The independent organization may change the rate established by the commission in the budget review process only with the commission's approval. On the commission's own initiative or on receiving a complaint, the commission may inquire into the reasonableness of an independent organization's budget or rate [costs]. (g) To maintain certification as an independent organization under this section, an organization's [If it amends its governance rules to provide that its governing body is composed as prescribed by this subsection, the existing independent system operator in ERCOT will meet the criteria provided by Subsection (a) with respect to ensuring access to the transmission systems for all buyers and sellers of electricity in the ERCOT region and ensuring the reliability of the regional electrical network. To comply with this subsection, the] governing body must be composed of persons specified by this section and selected in accordance with formal bylaws or protocols of the organization. The bylaws or protocols must be approved by the commission and must reflect the input of the commission. The bylaws or protocols must prescribe professional qualifications for selection as a member, require the use of a professional search firm to identify candidates for membership, and specify the process by which appropriate stakeholders elect members. The process must allow for commission input in identifying candidates. The governing body must be composed of: (1) the chairman of the commission as an ex officio nonvoting member; (2) the counselor [counsellor] as an ex officio voting member representing residential and small commercial consumer interests; (3) the chief executive officer [director] of the independent system operator as an ex officio voting member; (4) six market participants elected by their respective market segments to serve one-year terms, with: (A) one representing independent generators; (B) one representing investor-owned utilities; (C) one representing power marketers; (D) one representing retail electric providers; (E) one representing municipally owned utilities; and (F) one representing electric cooperatives [four representatives of the power generation sector as voting members]; (5) one member representing industrial consumer interests and elected by the industrial consumer market segment to serve a one-year term [four representatives of the transmission and distribution sector as voting members]; (6) one member representing large commercial consumer interests selected by the outgoing large commercial consumer representative to serve a one-year term [four representatives of the power sales sector as voting members]; and (7) six members unaffiliated with any market segment and selected by the other members of the governing body to serve three-year terms [the following people as voting members, appointed by the commission: [(A) one representative of residential customers; [(B) one representative of commercial customers; and [(C) one representative of industrial customers]. [The four representatives specified in each of Subdivisions (4), (5), and (6) shall be selected in a manner that ensures equitable representation for the various sectors of industry participants.] (g-1) The presiding officer of the governing body must be one of the members described by Subsection (g)(7). (g-2) In voting on a matter before the governing body, members must have their votes counted as provided by this subsection. The member described by Subsection (g)(3) has one vote. The members described by: (1) Subsection (g)(4) have two votes each; (2) Subsections (g)(2), (5), and (6) have two votes each; and (3) Subsection (g)(7), including the presiding officer, have three votes each. (g-3) A quorum of the governing body is present only when: (1) at least four of the members described by Subsections (g)(3) and (7) are present; and (2) a number of other members are present so that at least nine members are present. (g-4) The governing body by rule or bylaw may limit the time members described by Subsections (g)(2), (4), (5), and (6) may present evidence, arguments, or questions during a meeting of the body. (g-5) The governing body and its members are subject to Chapter 551, Government Code, in the same manner as that chapter applies to a governmental body and the members of a governmental body, except that the requirements pertaining to executive sessions of the governing body, to advance notice of meetings and planned agendas of the meetings, and the opportunity to comment on matters under discussion at the meetings contained in the independent organization's bylaws apply in lieu of conflicting requirements of that chapter. (j) A retail electric provider, municipally owned utility, electric cooperative, power marketer, transmission and distribution utility, or power generation company, or any other person who participates in a market operated by the independent system operator in ERCOT, shall observe all scheduling, operating, planning, reliability, and settlement policies, rules, guidelines, and procedures established by the independent system operator in ERCOT. A violation by any person of [Failure to comply with] this subsection may result in the revocation, suspension, or amendment of that person's [a] certificate or registration as provided by Section 39.356 or in the imposition against that person of an administrative penalty [as provided by Section 39.357]. The commission may require the refunding or disgorgement of revenues that accrue as a result of a violation of this subsection. SECTION 10. Subchapter D, Chapter 39, Utilities Code, is amended by adding Sections 39.1511, 39.1512, and 39.1515 to read as follows: Sec. 39.1511. PUBLIC MEETINGS OF GOVERNING BODY OF INDEPENDENT ORGANIZATION. (a) The bylaws of the independent organization and the rules of the commission may provide for the governing body or subcommittee to enter into executive session closed to the public to address sensitive matters such as confidential personnel information, contracts, lawsuits, competitively sensitive information, or other information related to security of the regional electrical network. (b) The bylaws of the independent organization and rules of the commission must ensure that a person interested in the activities of the independent organization has an opportunity to obtain at least seven days' advance notice of meetings and the planned agendas of the meetings and an opportunity to comment on matters under discussion at the meetings. Sec. 39.1512. DISCLOSURE OF INTEREST IN MATTER BEFORE INDEPENDENT ORGANIZATION'S GOVERNING BODY; PARTICIPATION IN DECISION. (a) If a matter comes before the governing body of an independent organization certified under Section 39.151 and a member or a person that member represents has a direct interest in that matter, the member shall publicly disclose the fact of that interest to the governing body at a public meeting of the body. The member shall recuse himself or herself from the governing body's deliberations and actions on the matter and may not vote on the matter or otherwise participate in a governing body decision on the matter. (b) A disclosure made under Subsection (a) shall be entered in the minutes of the meeting at which the disclosure is made. (c) The fact that a member is recused from a vote or decision by application of this section does not affect the existence of a quorum. Sec. 39.1515. WHOLESALE ELECTRIC MARKET MONITOR. (a) An independent organization certified under Section 39.151 shall contract with a private person selected by the commission to act as the state's wholesale electric market monitor and to detect and prevent market manipulation strategies. (b) The independent organization shall provide to the personnel of the market monitor: (1) full access to the organization's main operations center; and (2) other support and cooperation the commission determines is necessary for the market monitor to perform the market monitor's functions. (c) The independent organization shall use money from the rate authorized by Section 39.151(e) to pay for the market monitor's activities. (d) The commission is responsible for ensuring that the market monitor has the resources, expertise, and authority necessary to monitor the wholesale electric market effectively and shall adopt rules and perform oversight of the market monitor as necessary. The commission by rule shall define: (1) the market monitor's monitoring responsibilities; (2) the standards for funding the market monitor, including staffing requirements; (3) qualifications for personnel of the market monitor; and (4) ethical standards for the market monitor and the personnel of the market monitor. (e) In adopting rules governing the standards for funding the market monitor, the commission shall consult with a subcommittee of the independent organization's governing body to receive information on how money is or should be spent for monitoring functions. Rules governing ethical standards must include provisions designed to ensure that the personnel of the market monitor are professionally and financially independent from market participants. The commission shall develop and implement policies that clearly separate the policy-making responsibilities of the commission and the operational responsibilities of the market monitor. (f) The market monitor immediately shall report directly to the commission any potential market manipulations and any discovered or potential violations of commission rules or rules of the independent organization. (g) The personnel of the market monitor may communicate with commission staff on any matter without restriction. (h) The market monitor annually shall submit to the commission and the independent organization a report that identifies market design flaws and recommends methods to correct the flaws. The commission and the independent organization shall review the report and evaluate whether changes to rules of the commission or the independent organization should be made. SECTION 11. Section 39.155(a), Utilities Code, is amended to read as follows: (a) Each person, municipally owned utility, electric cooperative, and river authority that owns generation facilities and offers electricity for sale in this state shall report to the commission its installed generation capacity, the total amount of capacity available for sale to others, the total amount of capacity under contract to others, the total amount of capacity dedicated to its own use, its annual wholesale power sales in the state, its annual retail power sales in the state, and any other information necessary for the commission to assess market power or the development of a competitive retail market in the state. The commission shall by rule prescribe the nature and detail of the reporting requirements and shall administer those reporting requirements in a manner that ensures the confidentiality of competitively sensitive information. The commission, after a contested case hearing or an opportunity for a contested case hearing, may release to the public any information in the commission's possession if the commission finds that: (1) the information is not competitively sensitive or confidential by law; and (2) the release of the information is in the public interest. SECTION 12. Section 39.157(a), Utilities Code, is amended to read as follows: (a) The commission shall monitor market power associated with the generation, transmission, distribution, and sale of electricity in this state. On a finding that market power abuses or other violations of this section are occurring, the commission shall require reasonable mitigation of the market power by ordering the construction of additional transmission or distribution facilities, by seeking an injunction or civil penalties as necessary to eliminate or to remedy the market power abuse or violation as authorized by Chapter 15, by imposing an administrative penalty as authorized by Chapter 15, requiring refunds or disgorgement of revenues received as a result of market power abuse, or [by] suspending, revoking, or amending a certificate or registration as authorized by Section 39.356. [Section 15.024(c) does not apply to an administrative penalty imposed under this section.] For purposes of this subchapter, market power abuses are practices by persons possessing market power that are unreasonably discriminatory or tend to unreasonably restrict, impair, or reduce the level of competition, including practices that tie unregulated products or services to regulated products or services or unreasonably discriminate in the provision of regulated services. For purposes of this section, "market power abuses" include predatory pricing, withholding of production, precluding entry, and collusion. A violation of the code of conduct provided by Subsection (d) that materially impairs the ability of a person to compete in a competitive market shall be deemed to be an abuse of market power. The possession of a high market share in a market open to competition may not, of itself, be deemed to be an abuse of market power; however, this sentence shall not affect the application of state and federal antitrust laws. SECTION 13. Section 39.205, Utilities Code, is amended to read as follows: Sec. 39.205. REGULATION OF COSTS FOLLOWING FREEZE PERIOD. At the conclusion of the freeze period, any remaining costs associated with nuclear decommissioning obligations continue to be subject to cost of service rate regulation and shall be included as a nonbypassable charge to retail customers. The commission may adopt rules necessary to ensure that money for decommissioning is prudently collected, managed, and spent for its intended purpose and that money that remains unspent after decommissioning is completed is returned to retail customers. SECTION 14. Section 39.903(a), as amended by Chapters 211 and 1296, Acts of the 78th Legislature, Regular Session, 2003, is reenacted and amended to read as follows: (a) The system benefit fund is an account in the general revenue fund. Money in the account may be appropriated only for the purposes provided by this section or other law. Interest earned on the system benefit fund shall be credited to the fund. [Section 403.095, Government Code, does not apply to the system benefit fund.] SECTION 15. Section 39.903(e), Utilities Code, as amended by Chapters 1394, 1451, and 1466, Acts of the 77th Legislature, Regular Session, 2001, is reenacted and amended to read as follows: (e) Money in the system benefit fund may be appropriated to provide funding solely for the following regulatory purposes, [and] in the following order of priority: (1) programs to assist low-income electric customers by providing the 10 percent reduced rate prescribed by Subsection (h); (2) customer education programs, administrative expenses incurred by the commission in implementing and administering this chapter, and expenses incurred by the office under this chapter; (3) programs to assist low-income electric customers by providing the targeted energy efficiency programs described by Subsection (f)(2); (4) the school funding loss mechanism provided by Section 39.901; and (5) programs to assist low-income electric customers by providing the 20 percent reduced rate prescribed by Subsection (h)[; and [(6) reimbursement to the commission and the Texas Department of Human Services for expenses incurred in the implementation and administration of an integrated eligibility process created under Section 17.007 for customer service discounts relating to retail electric service, including outreach expenses the commission determines are reasonable and necessary]. SECTION 16. Section 39.903(h), Utilities Code, is amended to read as follows: (h) The commission shall adopt rules for a retail electric provider to determine a reduced rate for eligible customers to be discounted off the standard retail service package as approved by the commission under Section 39.106, or the price to beat established by Section 39.202, whichever is lower. Municipally owned utilities and electric cooperatives shall establish a reduced rate for eligible customers to be discounted off the standard retail service package established under Section 40.053 or 41.053, as appropriate. The reduced rate for a retail electric provider shall result in a total charge that is at least 10 percent and, if sufficient money in the system benefit fund is available, up to 20 percent, lower than the amount the customer would otherwise be charged. To the extent the system benefit fund is insufficient to fund the initial 10 percent rate reduction, the commission may increase the fee to an amount not more than 65 cents per megawatt hour, as provided by Subsection (b). If the fee is set at 65 cents per megawatt hour and the commission determines that the system benefit fund is still insufficient to fund the 10 percent rate reduction for any reason, the commission may reduce the rate reduction to less than 10 percent. For a municipally owned utility or electric cooperative, the reduced rate shall be equal to an amount that can be fully funded by that portion of the nonbypassable fee proceeds paid by the municipally owned utility or electric cooperative that is allocated to the utility or cooperative by the commission under Subsection (e) for programs for low-income customers of the utility or cooperative. The reduced rate for municipally owned utilities and electric cooperatives under this section is in addition to any rate reduction that may result from local programs for low-income customers of the municipally owned utilities or electric cooperatives. SECTION 17. Section 40.001(a), Utilities Code, is amended to read as follows: (a) Notwithstanding any other provision of law, except Sections 39.151(j), 39.155, 39.157(a) and (e) [39.157(e)], 39.203, 39.903, and 39.904, this chapter governs the transition to and the establishment of a fully competitive electric power industry for municipally owned utilities. With respect to the regulation of municipally owned utilities, this chapter controls over any other provision of this title, except for sections in which the term "municipally owned utility" is specifically used. SECTION 18. Section 41.001, Utilities Code, is amended to read as follows: Sec. 41.001. APPLICABLE LAW. Notwithstanding any other provision of law, except Sections 39.151(j), 39.155, 39.157(a) and (e) [39.157(e)], 39.203, 39.903, and 39.904, this chapter governs the transition to and the establishment of a fully competitive electric power industry for electric cooperatives. Regarding the regulation of electric cooperatives, this chapter shall control over any other provision of this title, except for sections in which the term "electric cooperative" is specifically used. SECTION 19. Section 52.254, Utilities Code, is repealed. SECTION 20. The change in law made by this Act relating to qualifications and eligibility to serve as a commissioner or to be employed with the Public Utility Commission of Texas applies only to a commissioner or employee appointed or employed after the effective date of this Act. A commissioner or employee of the Public Utility Commission of Texas who is serving or employed on the effective date of this Act is governed by the law as it existed immediately before the effective date of this Act, and the former law is continued in effect for that purpose. SECTION 21. An independent organization certified by the Public Utility Commission of Texas before September 1, 2005, shall modify the organization's governing body to comply with Section 39.151(g), Utilities Code, as amended by this Act, not later than January 1, 2006. On or after January 1, 2006, the Public Utility Commission of Texas may decertify an independent organization whose governing body does not comply with Section 39.151(g), Utilities Code, as amended by this Act. SECTION 22. This Act takes effect September 1, 2005.