79R4415 MTB-F
By: King of Parker H.B. No. 1779
A BILL TO BE ENTITLED
AN ACT
relating to the continuation, administration, and operations of the
Public Utility Commission of Texas and the Office of Public Utility
Counsel.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Subtitle A, Title 2, Utilities
Code, is amended to read as follows:
SUBTITLE A. GENERALLY [PROVISIONS] APPLICABLE PROVISIONS [TO ALL
UTILITIES]
SECTION 2. Section 11.002, Utilities Code, is amended to
read as follows:
Sec. 11.002. PURPOSE [AND FINDINGS]. [(a)] This title is
enacted to protect the public interest inherent in the delivery of
[rates and] services and deployment of networks by electric and
telecommunications providers [public utilities]. The purpose of
this title is to establish an appropriate [a comprehensive and
adequate] regulatory system for electric providers [public
utilities to assure rates, operations,] and communications service
[services that are just] and network providers for [reasonable to]
the benefit of consumers [and to the utilities].
[(b) Public utilities traditionally are by definition
monopolies in the areas they serve. As a result, the normal forces
of competition that regulate prices in a free enterprise society do
not operate. Public agencies regulate utility rates, operations,
and services as a substitute for competition.
[(c) Significant changes have occurred in the
telecommunications and electric power industries since the Public
Utility Regulatory Act was originally adopted. Changes in
technology and market structure have increased the need for minimum
standards of service quality, customer service, and fair business
practices to ensure high-quality service to customers and a healthy
marketplace where competition is permitted by law. It is the
purpose of this title to grant the Public Utility Commission of
Texas authority to make and enforce rules necessary to protect
customers of telecommunications and electric services consistent
with the public interest.]
SECTION 3. Sections 11.003(1), (2), (3), (8), (10), (13),
(16), (19), (20), and (21), Utilities Code, are amended to read as
follows:
(1) "Affected person" means:
(A) a public utility, provider, or electric
cooperative affected by an action of a regulatory authority;
(B) a person whose [utility] service or rates are
affected by a proceeding before a regulatory authority; or
(C) a person who:
(i) is a competitor of a public utility or
provider with respect to a service delivered [performed] by the
utility or provider; or
(ii) wants to enter into competition with a
public utility or provider.
(2) "Affiliate" means:
(A) a person who directly or indirectly owns or
holds at least five percent of the voting securities of a public
utility or provider;
(B) a person in a chain of successive ownership
of at least five percent of the voting securities of a public
utility or provider;
(C) a corporation that has at least five percent
of its voting securities owned or controlled, directly or
indirectly, by a public utility or provider;
(D) a corporation that has at least five percent
of its voting securities owned or controlled, directly or
indirectly, by:
(i) a person who directly or indirectly
owns or controls at least five percent of the voting securities of a
public utility or provider; or
(ii) a person in a chain of successive
ownership of at least five percent of the voting securities of a
public utility or provider;
(E) a person who is an officer or director of a
public utility or provider or of a corporation in a chain of
successive ownership of at least five percent of the voting
securities of a public utility or provider; or
(F) a person determined to be an affiliate under
federal law or Section 11.006.
(3) "Allocation" means the division among
municipalities or among municipalities and unincorporated areas of
the plant, revenues, expenses, taxes, and reserves of an electric
[a] utility used to provide electric [public utility] service in a
municipality or for a municipality and unincorporated areas.
(8) "Counselor [Counsellor]" means the public utility
counsel.
(10) "Facilities" means all of the plant and equipment
of a public utility or provider, and includes the tangible and
intangible property, without limitation, owned, operated, leased,
licensed, used, controlled, or supplied for, by, or in connection
with the business of the public utility or provider.
(13) "Order" means all or a part of a final disposition
by a regulatory authority in a matter other than rulemaking,
without regard to whether the disposition is affirmative or
negative or injunctive or declaratory. The term includes:
(A) the issuance of a certificate or registration
[of convenience and necessity]; and
(B) the setting of a rate.
(16) "Rate" includes:
(A) any compensation, tariff, charge, fare,
toll, rental, or classification that is directly or indirectly
demanded, observed, charged, or collected by a public utility or
provider for a service, product, or commodity described in the
definition of utility in Section 31.002 or 51.002; and
(B) a rule, practice, or contract affecting the
compensation, tariff, charge, fare, toll, rental, or
classification.
(19) "Service" includes:
(A) advanced service as defined by Section
51.002;
(B) basic local telecommunications service as
defined by Section 51.002;
(C) interexchange telecommunications service as
defined by Section 51.002;
(D) local exchange telephone service as defined
by Section 51.002;
(E) transmission service as defined by Section
31.002; and
(F) a service described in the definition of
utility or electric utility in Section 31.002 or 51.002 [has its
broadest and most inclusive meaning. The term includes any act
performed, anything supplied, and any facilities used or supplied
by a public utility in the performance of the utility's duties under
this title to its patrons, employees, other public utilities, an
electric cooperative, and the public. The term also includes the
interchange of facilities between two or more public utilities.
The term does not include the printing, distribution, or sale of
advertising in a telephone directory].
(20) "Test year" means the most recent 12 months,
beginning on the first day of a calendar or fiscal year quarter, for
which operating data for a public utility or provider are
available.
(21) "Trade association" means a nonprofit,
cooperative, and voluntarily joined association of business or
professional persons who are employed by public utilities, [or]
utility competitors, or providers to assist [the public utility
industry, a utility competitor, or the industry's or competitor's
employees] in dealing with mutual business or professional problems
and in promoting their common interest.
SECTION 4. Chapter 11, Utilities Code, is amended by adding
Section 11.0045 to read as follows:
Sec. 11.0045. DEFINITION OF PROVIDER. In Subtitle A
"provider" means:
(1) a service provider;
(2) a network provider;
(3) a power generation company; and
(4) a retail electric provider.
SECTION 5. Section 11.006, Utilities Code, is amended to
read as follows:
Sec. 11.006. PERSON DETERMINED TO BE AFFILIATE. (a) The
commission may determine that a person is an affiliate for purposes
of this title if the commission after notice and hearing finds that
the person:
(1) actually exercises substantial influence or
control over the policies and actions of a public utility or
provider;
(2) is a person over which a public utility or provider
exercises the control described by Subdivision (1);
(3) is under common control with a public utility or
provider; or
(4) together with one or more persons with whom the
person is related by ownership or blood relationship, or by action
in concert, actually exercises substantial influence over the
policies and actions of a public utility or provider even though
neither person may qualify as an affiliate individually.
(b) For purposes of Subsection (a)(3), "common control with
a public utility or provider" means the direct or indirect
possession of the power to direct or cause the direction of the
management and policies of another, without regard to whether that
power is established through ownership or voting of securities or
by any other direct or indirect means.
SECTION 6. Section 12.004, Utilities Code, is amended to
read as follows:
Sec. 12.004. REPRESENTATION BY [THE] ATTORNEY GENERAL. The
attorney general shall represent the commission in a matter before
a state court, a court of the United States, or a federal public
utility or service regulatory commission.
SECTION 7. Section 12.005, Utilities Code, is amended to
read as follows:
Sec. 12.005. APPLICATION OF SUNSET ACT. The Public Utility
Commission of Texas is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter or by Chapter 39, the commission is abolished and this
title expires September 1, 2011 [2005].
SECTION 8. Section 12.051(a), Utilities Code, is amended to
read as follows:
(a) The commission is composed of five [three]
commissioners appointed by the governor with the advice and consent
of the senate.
SECTION 9. Section 12.053(b), Utilities Code, is amended to
read as follows:
(b) A person is not eligible for appointment as a
commissioner if the person:
(1) at any time during the two years preceding
appointment[:
[(A)] personally served as an officer, director,
owner, employee, partner, or legal representative of a [public]
utility, provider, affiliate, or direct competitor of a [public]
utility or provider; [or]
(2) owns [(B) owned] or controls [controlled],
directly or indirectly, stocks or bonds of any class with a value of
$10,000 or more in a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider; or
(3) [(2)] is not qualified to serve under Section
12.151, 12.152, or 12.153.
SECTION 10. Section 12.054(a), Utilities Code, is amended
to read as follows:
(a) It is a ground for removal from the commission if a
commissioner:
(1) does not have at the time of appointment or
maintain during service on the commission the qualifications
required by Section 12.053;
(2) violates a prohibition provided by Section 12.053
or by Subchapter D;
(3) cannot discharge the commissioner's duties for a
substantial part of the term for which the commissioner is
appointed because of illness or disability; [or]
(4) is absent from more than half of the regularly
scheduled commission meetings that the commissioner is eligible to
attend during a calendar year unless the absence is excused by
majority vote of the commission; or
(5) personally serves as an officer, director, owner,
employee, partner, or legal representative of a utility, provider,
affiliate, or direct competitor of a utility or provider.
SECTION 11. Section 12.059, Utilities Code, is amended by
adding Subsection (c) to read as follows:
(c) A person who is appointed to the commission is entitled
to reimbursement, as provided by the General Appropriations Act,
for the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
SECTION 12. Section 12.102, Utilities Code, is amended to
read as follows:
Sec. 12.102. DUTIES OF EMPLOYEES. The commission shall
develop and implement policies that clearly separate [define] the
policymaking [respective] responsibilities of the commission and
the management responsibilities of the commission employees.
SECTION 13. Section 12.152(a), Utilities Code, is amended
to read as follows:
(a) A person is not eligible for appointment as a
commissioner or executive director of the commission if:
(1) the person serves on the board of directors of a
company that supplies fuel, utility-related services, or
utility-related products to a utility or provider [regulated or
unregulated electric or telecommunications utilities]; or
(2) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization that is
regulated by or receives funds from the commission;
(B) directly or indirectly owns or controls more
than a 10 percent interest or a pecuniary interest with a value
exceeding $10,000 in:
(i) a business entity or other organization
that is regulated by or receives funds from the commission; or
(ii) a utility, provider, affiliate, or
direct competitor of a[,] utility [supplier,] or provider [other
entity affected by a commission decision in a manner other than by
the setting of rates for that class of customer];
(C) uses or receives a substantial amount of
tangible goods, services, or funds from the commission, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(D) notwithstanding Paragraph (B), has an
interest in a mutual fund or retirement fund in which more than 10
percent of the fund's holdings at the time of appointment is in a
single utility, provider, affiliate, or direct [utility]
competitor of a[, or] utility or provider [supplier] in this state
and the person does not disclose this information to the governor,
senate, commission, or other entity, as appropriate.
SECTION 14. Section 12.153, Utilities Code, is amended to
read as follows:
Sec. 12.153. RELATIONSHIP WITH TRADE ASSOCIATION. A person
may not serve as a commissioner or be a commission employee who is
employed in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an
exemption to the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), [exempt from
the state's position classification plan or is compensated at or
above the amount prescribed by the General Appropriations Act for
step 1, salary group 17, of the position classification salary
schedule] if the person is:
(1) an officer, employee, or paid consultant of a
trade association; or
(2) the spouse of an officer, manager, or paid
consultant of a trade association.
SECTION 15. Sections 12.154(a), (b), (c), (d), (f), and
(h), Utilities Code, are amended to read as follows:
(a) During the period of service with the commission, a
commissioner or commission employee may not:
(1) have a pecuniary interest, including an interest
as an officer, director, partner, owner, employee, attorney, or
consultant, in:
(A) a [public] utility, provider, [or]
affiliate, or direct competitor of a utility or provider; or
(B) a person a significant portion of whose
business consists of furnishing goods or services to a utility,
provider, affiliate, or direct competitor of a utility or provider
[public utilities or affiliates];
(2) directly or indirectly own or control securities
in a [public] utility, provider, affiliate, or direct competitor of
a [public] utility or provider; or
(3) accept a gift, gratuity, or entertainment from:
(A) a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider;
(B) a person a significant portion of whose
business consists of furnishing goods or services to [public]
utilities, providers, affiliates, or direct competitors of
[public] utilities or providers; or
(C) an agent, representative, attorney,
employee, officer, owner, director, or partner of a person
described by Paragraph (A) or (B).
(b) A commissioner or a commission employee may not directly
or indirectly solicit, request from, or suggest or recommend to a
[public] utility, provider, affiliate, or direct competitor of a
utility or provider or an agent, representative, attorney,
employee, officer, owner, director, or partner of a [public]
utility, provider, affiliate, or direct competitor of a utility or
provider the appointment to a position or the employment of a person
by the [public] utility, provider, [or] affiliate, or direct
competitor of a utility or provider.
(c) A person may not give or offer to give a gift, gratuity,
employment, or entertainment to a commissioner or commission
employee if that person is:
(1) a [public] utility, provider, affiliate, or direct
competitor of a [public] utility or provider;
(2) a person who furnishes goods or services to a
[public] utility, provider, affiliate, or direct competitor of a
[public] utility or provider; or
(3) an agent, representative, attorney, employee,
officer, owner, director, or partner of a person described by
Subdivision (1) or (2).
(d) A [public] utility, provider, affiliate, or direct
competitor of a [public] utility or provider or a person furnishing
goods or services to a [public] utility, provider, affiliate, or
direct competitor of a [public] utility or provider may not aid,
abet, or participate with a commissioner, commission employee, or
former commission employee in conduct that violates Subsection
(a)(3) or (c).
(f) It is not a violation of this section if a commissioner
or commission employee, on becoming the owner of stocks, bonds, or
another pecuniary interest in a [public] utility, provider,
affiliate, or direct competitor of a [public] utility or provider
otherwise than voluntarily, informs the commission and the attorney
general of the ownership and divests the ownership or interest
within a reasonable time.
(h) This section does not apply to a contract for a [public
utility] product or service from [or equipment for use of] a
[public] utility, provider, affiliate, or direct competitor of a
utility or provider [product] when a commissioner or commission
employee is acting as a consumer.
SECTION 16. Sections 12.155(a) and (c), Utilities Code, are
amended to read as follows:
(a) A commissioner, a commission employee, or an employee of
the State Office of Administrative Hearings involved in hearing
utility or provider cases may not:
(1) be employed by a [public] utility or provider that
was in the scope of the commissioner's or employee's official
responsibility while the commissioner or employee was associated
with the commission or the State Office of Administrative Hearings;
or
(2) represent a person before the commission or State
Office of Administrative Hearings or a court in a matter:
(A) in which the commissioner or employee was
personally involved while associated with the commission or State
Office of Administrative Hearings; or
(B) that was within the commissioner's or
employee's official responsibility while the commissioner or
employee was associated with the commission or State Office of
Administrative Hearings.
(c) The prohibition of Subsection (a)(2) applies while a
commissioner, commission employee, or employee of the State Office
of Administrative Hearings involved in hearing utility or provider
cases is associated with the commission or State Office of
Administrative Hearings and at any time after.
SECTION 17. Section 12.252, Utilities Code, is amended to
read as follows:
Sec. 12.252. COMMISSION AUTHORITY. The commission, after
notice and hearing, may require each utility or provider subject to
regulation under this title to make an effort to overcome the
underuse of historically underutilized businesses.
SECTION 18. Section 12.253, Utilities Code, is amended to
read as follows:
Sec. 12.253. REPORT REQUIRED. The commission shall require
each utility or provider subject to regulation under this title to
prepare and submit to the commission a comprehensive annual report
detailing its use of historically underutilized businesses.
SECTION 19. Section 13.002, Utilities Code, is amended to
read as follows:
Sec. 13.002. APPLICATION OF SUNSET ACT. The Office of
Public Utility Counsel is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the office is abolished and this chapter expires
September 1, 2011 [2005].
SECTION 20. Sections 13.003(a) and (c), Utilities Code, are
amended to read as follows:
(a) The office:
(1) shall assess the effect of [utility] rate changes
and other regulatory actions on residential consumers in this
state;
(2) shall advocate in the office's own name a position
determined by the counselor [counsellor] to be most advantageous to
a substantial number of residential consumers;
(3) may initiate an action, appear, or intervene, as a
party or otherwise, as a matter of right on behalf of:
(A) residential consumers, as a class or
individually, in any proceeding in which the counselor determines
that residential consumers are in need of representation [before
the commission], including an alternative dispute resolution
proceeding; and
(B) small commercial consumers, as a class or
individually, in any proceeding in which the counselor [counsellor]
determines that small commercial consumers are in need of
representation, including an alternative dispute resolution
proceeding;
(4) may initiate or intervene as a matter of right or
otherwise appear in a judicial proceeding:
(A) that involves an action taken by an
administrative agency in a proceeding, including an alternative
dispute resolution proceeding, in which the counselor [counsellor]
is authorized to appear; or
(B) in which the counselor [counsellor]
determines that residential [electricity] consumers or small
commercial [electricity] consumers are in need of representation;
(5) is entitled to the same access as a party, other
than commission staff, to records gathered by the commission under
Section 14.204;
(6) is entitled to discovery of any nonprivileged
matter that is relevant to the subject matter of a proceeding or
petition before the commission;
(7) may represent [an individual] residential or small
commercial consumers, individually or as a class [consumer] with
respect to any [the consumer's disputed] complaint concerning
electric or telecommunications [utility] services [that is
unresolved before the commission]; [and]
(8) may represent residential and small commercial
consumers, individually, as a group, or as a class, in any federal
bankruptcy case in which the counselor determines that electric or
telecommunications consumers in this state are in need of
representation; and
(9) may recommend legislation to the legislature that
the office determines would positively affect the interests of
residential and small commercial consumers.
(c) The appearance of the counselor [counsellor] in a
proceeding does not preclude the appearance of other parties on
behalf of residential or small commercial consumers. The counselor
[counsellor] may not be grouped with any other party.
SECTION 21. Subchapter A, Chapter 13, Utilities Code, is
amended by adding Sections 13.004, 13.005, 13.006, and 13.007 to
read as follows:
Sec. 13.004. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) The counselor shall develop and implement a policy to encourage
the use of appropriate alternative dispute resolution procedures
under Chapter 2009, Government Code, to assist in the resolution of
internal disputes under the office's jurisdiction.
(b) The office's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
for the use of alternative dispute resolution by state agencies.
(c) The counselor shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for alternative dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the office.
Sec. 13.005. COMPLAINTS. (a) The office shall maintain a
system to promptly and efficiently act on complaints filed with the
office that the office has the authority to resolve. The office
shall maintain information about parties to the complaint, the
subject matter of the complaint, a summary of the results of the
review or investigation of the complaint, and its disposition.
(b) The office shall make information available describing
its procedures for complaint investigation and resolution.
(c) The office shall periodically notify the complaint
parties of the status of the complaint until final disposition.
Sec. 13.006. TECHNOLOGY POLICY. The counselor shall
implement a policy requiring the office to use appropriate
technological solutions to improve the office's ability to perform
its functions. The policy must ensure that the public is able to
interact with the office on the Internet.
Sec. 13.007. MANAGEMENT AUDIT. (a) The state auditor, in
coordination with the Legislative Budget Board, shall conduct a
management audit of the office to evaluate the office's performance
measures to determine the accuracy of calculations and whether the
measures accurately depict the impact of the office. The audit must
include an estimation of savings to residential and small
commercial consumers directly attributable to office participation
in proceedings.
(b) The state auditor must complete the audit required by
this section and deliver a report on the audit to the governor,
lieutenant governor, and speaker of the house of representatives
not later than August 1, 2006.
(c) This section expires September 1, 2006.
SECTION 22. Section 13.021, Utilities Code, is amended to
read as follows:
Sec. 13.021. APPOINTMENT; TERM. (a) The chief executive of
the office is the counselor [counsellor].
(b) The counselor [counsellor] is appointed by the governor
with the advice and consent of the senate.
(c) The appointment of the counselor [counsellor] shall be
made without regard to the race, color, disability, sex, religion,
age, or national origin of the appointee.
(d) The counselor [counsellor] serves a two-year term that
expires on February 1 of the final year of the term.
SECTION 23. Section 13.022, Utilities Code, is amended to
read as follows:
Sec. 13.022. QUALIFICATIONS. (a) The counselor
[counsellor] must:
(1) be licensed to practice law in this state;
(2) have demonstrated a strong commitment to and
involvement in efforts to safeguard the rights of the public; and
(3) possess the knowledge and experience necessary to
practice effectively in utility proceedings.
(b) A person is not eligible for appointment as counselor
[counsellor] if:
(1) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization that is
regulated by or receives funds from the commission;
(B) directly or indirectly owns or controls more
than a 10 percent interest or a pecuniary interest with a value
exceeding $10,000 in:
(i) a business entity or other organization
that is regulated by or receives funds from the commission or the
office; or
(ii) a utility competitor, utility
supplier, or other entity affected by a commission decision in a
manner other than by the setting of rates for that class of
customer;
(C) uses or receives a substantial amount of
tangible goods, services, or funds from the commission or the
office, other than compensation or reimbursement authorized by law
for service as counselor [counsellor] or for commission membership,
attendance, or expenses; or
(D) notwithstanding Paragraph (B), has an
interest in a mutual fund or retirement fund in which more than 10
percent of the fund's holdings is in a single utility, utility
competitor, or utility supplier in this state and the person does
not disclose this information to the governor, senate, or other
entity, as appropriate; or
(2) the person is not qualified to serve under Section
13.042.
(c) [A person required to register as a lobbyist under
Chapter 305, Government Code, because of the person's activities
for compensation on behalf of a profession related to the operation
of the commission or the office may not serve as counsellor.
[(d)] A person otherwise ineligible because of Subsection
(b)(1)(B) may be appointed and serve as counselor [counsellor] if
the person:
(1) notifies the attorney general and commission that
the person is ineligible because of Subsection (b)(1)(B); and
(2) divests the person or the person's spouse of the
ownership or control:
(A) before beginning service; or
(B) if the person is already serving, within a
reasonable time.
SECTION 24. Section 13.023, Utilities Code, is amended to
read as follows:
Sec. 13.023. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from office if the counselor [counsellor]:
(1) does not have at the time of taking office
[appointment] or maintain during service as counselor [counsellor]
the qualifications required by Section 13.022;
(2) is ineligible for service as counselor under
[violates a prohibition provided by] Section 13.022, 13.042, or
13.043; or
(3) cannot discharge the counselor's [counsellor's]
duties for a substantial part of the term for which the counselor
[counsellor] is appointed because of illness or disability.
(b) The validity of an action of the office is not affected
by the fact that the action is taken when a ground for removal of the
counselor [counsellor] exists.
(c) If an employee has knowledge that a potential ground for
removal of the counselor exists, the employee shall notify the next
highest ranking employee of the office, other than the counselor,
who shall then notify the governor and the attorney general that a
potential ground for removal exists.
SECTION 25. Section 13.024, Utilities Code, is amended to
read as follows:
Sec. 13.024. PROHIBITED ACTS. (a) The counselor
[counsellor] may not have a direct or indirect interest in a utility
company regulated under this title, its parent, or its subsidiary
companies, corporations, or cooperatives or a utility competitor,
utility supplier, or other entity affected in a manner other than by
the setting of rates for that class of customer.
(b) The prohibition under Subsection (a) applies during the
period of the counselor's [counsellor's] service.
SECTION 26. Section 13.041(a), Utilities Code, is amended
to read as follows:
(a) The counselor [counsellor] may employ lawyers,
economists, engineers, consultants, statisticians, accountants,
clerical staff, and other employees as the counselor [counsellor]
considers necessary to carry out this chapter.
SECTION 27. Section 13.042, Utilities Code, is amended to
read as follows:
Sec. 13.042. CONFLICT OF INTEREST [RELATIONSHIP WITH TRADE
ASSOCIATION]. (a) In this section, "Texas trade association"
means a cooperative and voluntarily joined statewide association of
business or professional competitors in this state designed to
assist its members and its industry or profession in dealing with
mutual business or professional problems and in promoting their
common interest.
(b) A person may not serve as counselor [counsellor] or be
an employee of the office employed in a "bona fide executive,
administrative, or professional capacity," as that phrase is used
for purposes of establishing an exemption to the overtime
provisions of the federal Fair Labor Standards Act of 1938 (29
U.S.C. Section 201 et seq.) [who is exempt from the state's position
classification plan or is compensated at or above the amount
prescribed by the General Appropriations Act for step 1, salary
group 17, of the position classification salary schedule] if the
person is:
(1) an officer, employee, or paid consultant of a
Texas trade association in the field of utilities; or
(2) the spouse of an officer, manager, or paid
consultant of a Texas trade association in the field of utilities.
(c) A person may not serve as counselor or act as the general
counsel to the office if the person is required to register as a
lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession
related to the operation of the office.
SECTION 28. Section 13.044, Utilities Code, is amended to
read as follows:
Sec. 13.044. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS; MERIT PAY. (a) The counselor [counsellor] or the
counselor's [counsellor's] designee shall develop an intra-agency
career ladder program that addresses opportunities for mobility and
advancement for office employees. The program shall require
intra-agency postings of each position concurrently with any public
posting.
(b) The counselor [counsellor] or the counselor's
[counsellor's] designee shall develop a system of annual
performance evaluations that are based on documented employee
performance. Merit pay for office employees must be based on the
system established under this subsection.
SECTION 29. Section 13.045(a), Utilities Code, is amended
to read as follows:
(a) The counselor [counsellor] or the counselor's
[counsellor's] designee shall prepare and maintain a written policy
statement to ensure implementation of a program of equal employment
opportunity under which all personnel transactions are made without
regard to race, color, disability, sex, religion, age, or national
origin.
SECTION 30. Section 13.063, Utilities Code, is amended to
read as follows:
Sec. 13.063. ANNUAL REPORTS [REPORT]. (a) The office shall
prepare annually a complete and detailed written report accounting
for all funds received and disbursed by the office during the
preceding fiscal year. The annual report must meet the reporting
requirements applicable to financial reporting in the General
Appropriations Act.
(b) The office shall prepare annually a report on the
office's activities during the preceding year and submit the report
to the standing legislative committees that have jurisdiction over
the office, the house appropriations committee, the senate finance
committee, and the Sunset Advisory Commission. At a minimum, the
report must include:
(1) a list of the types of activities conducted by the
office and the time spent by the office on each activity;
(2) the number of hours billed by the office for
representing residential or small commercial consumers in
proceedings;
(3) the number of staff positions and the type of work
performed by each position; and
(4) the office's rate of success in representing
residential or small commercial consumers in appealing commission
decisions.
SECTION 31. Subchapter D, Chapter 13, Utilities Code, is
amended by adding Section 13.064 to read as follows:
Sec. 13.064. PUBLIC HEARING. (a) The office annually shall
conduct a public hearing to assist the office in developing a plan
of priorities and to give the public, including residential and
small commercial consumers, an opportunity to comment on the
office's functions and effectiveness.
(b) A public hearing held under this section is not subject
to Chapter 551, Government Code.
(c) The office shall file notice of a public hearing held
under this section with the secretary of state for publication in
the Texas Register.
SECTION 32. Section 14.001, Utilities Code, is amended to
read as follows:
Sec. 14.001. POWER TO REGULATE AND SUPERVISE. The
commission has the general power to regulate and supervise the
business of each [public] utility and provider within its
jurisdiction and to do anything specifically designated or implied
by this title that is necessary and convenient to the exercise of
that power and jurisdiction.
SECTION 33. Subchapter A, Chapter 14, Utilities Code, is
amended by adding Section 14.0025 to read as follows:
Sec. 14.0025. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE RESOLUTION. (a) The commission shall develop and
implement a policy to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008, Government Code, for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal and external disputes under the commission's
jurisdiction.
(b) The commission's procedures relating to alternative
dispute resolution must conform, to the extent possible, to any
model guidelines issued by the State Office of Administrative
Hearings for the use of alternative dispute resolution by state
agencies.
(c) The commission shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for negotiated rulemaking or alternative
dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the commission.
SECTION 34. Section 14.008(a), Utilities Code, is amended
to read as follows:
(a) Except as otherwise provided by this title, this [This]
title does not restrict the rights and powers of a municipality to
grant or refuse a franchise to use the streets and alleys in the
municipality or to make a statutory charge for that use.
SECTION 35. Section 14.058, Utilities Code, is amended to
read as follows:
Sec. 14.058. FEES FOR ELECTRONIC ACCESS TO INFORMATION.
The fees charged by the commission for electronic access to
information that is stored in the system established by the
commission using funds from the Texas Public Finance Authority and
approved by the Department of Information Resources shall be
established:
(1) by the commission in consultation with the Texas
Building and Procurement [General Services] Commission; and
(2) in an amount reasonable and necessary to retire
the debt to the Texas Public Finance Authority associated with
establishing the electronic access system.
SECTION 36. Subchapter B, Chapter 14, Utilities Code, is
amended by adding Section 14.059 to read as follows:
Sec. 14.059. TECHNOLOGY POLICY. The commission shall
implement a policy requiring the commission to use appropriate
technological solutions to improve the commission's ability to
perform its functions. The policy must ensure that the public is
able to interact with the commission on the Internet.
SECTION 37. Subchapter B, Chapter 15, Utilities Code, is
amended by adding Section 15.0205 to read as follows:
Sec. 15.0205. DEFINITION. In this subchapter, "person"
includes a municipally owned utility and an electric cooperative
for the purposes of enforcing compliance with and providing
penalties for violations of Sections 39.151(j) and 39.157(a).
SECTION 38. Section 15.023, Utilities Code, is amended by
amending Subsections (b) and (c) and adding Subsections (d) and (e)
to read as follows:
(b) Except as otherwise provided by this title, the [The]
penalty for a violation may be in an amount not to exceed $25,000
[$5,000]. Each day a violation continues or occurs is not a
separate violation for purposes of imposing a penalty, except as
otherwise provided by this title.
(c) The commission by rule shall establish a classification
system for violations that includes a range [The amount] of [an]
administrative penalties that may be assessed for each class of
violation [penalty shall be] based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and
gravity of a prohibited act; and
(B) the hazard or potential hazard created to the
health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations
based on the circumstances of the person committing the violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require,
including the amount of a penalty imposed on a similarly situated
person.
(d) The classification system established under Subsection
(c) shall provide that a penalty in an amount that exceeds $5,000
may be assessed only if the violation is included in the highest
class of violations in the classification system.
(e) Notwithstanding the classification system established
under Subsection (c), a person regulated under this title who
wilfully and knowingly violates this title or a rule or order
adopted under this title may be assessed a penalty included in the
range of penalties that may be assessed for the highest class of
violations in the classification system.
SECTION 39. Section 15.024, 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:
Sec. 15.024. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
(a) If the executive director contends [determines] that a
violation has occurred, the executive director shall [may] issue to
the commission a report that states the facts on which the
contention [determination] is based, including whether service to
an end-user consumer is the basis of the contention, and the
executive director's recommendation on the imposition of an
administrative penalty, including a recommendation on the amount of
the penalty.
(b) Not later than the 14th day after the date the report is
issued, the executive director shall give written notice of the
report to the person against whom the penalty may be assessed. The
notice shall be given by certified mail return receipt requested.
The notice must:
(1) include a brief summary of the alleged violation;
(2) state whether service to an end-user consumer is
the basis of the alleged violation, including instruction or
information on how to contact the end-user consumer;
(3) state the amount of the recommended penalty,
including the reasons why that penalty is recommended, considering
the classification system created under Section 15.023; and
(4) [(3)] inform the person that the person has a
right to a hearing on the occurrence of the violation, the amount of
the penalty, or both the occurrence of the violation and the amount
of the penalty.
(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 17, 55, or 64.
[(d)] Not later than the 60th [20th] day after the date the
person receives the notice, the person may accept or agree not to
contest the contention [determination] and recommended penalty of
the executive director in writing or may make a written request for
a hearing on the occurrence of the violation, the amount of the
penalty, or both the occurrence of the violation and the amount of
the penalty.
(d) [(e)] If the person accepts, agrees not to contest, or
fails to timely respond to the notice of the executive director's
contention [determination] and recommended penalty, the commission
by order shall approve the contention [determination] and impose
the recommended penalty.
(e) [(f)] If the person requests a hearing [or fails to
timely respond to the notice], the executive director shall set a
hearing and give notice of the hearing to the person. The hearing
shall be held in accordance with Subchapter B, Chapter 14. If a
hearing is conducted by [an administrative law judge of] the State
Office of Administrative Hearings, the [. The] administrative law
judge shall make findings of fact and conclusions of law and
promptly issue to the commission a proposal for a decision about the
occurrence of the violation and the amount of a proposed penalty.
Based on the findings of fact, conclusions of law, and proposal for
a decision, the commission by order may find that a violation has
occurred and impose a penalty or may find that no violation
occurred.
(f) [(g)] The notice of the commission's order shall be
given to the person as provided by Chapter 2001, Government Code,
and must include a statement of the right of the person to judicial
review of the order.
SECTION 40. Section 15.027(c), Utilities Code, is amended
to read as follows:
(c) The executive director may delegate any power or duty
relating to an administrative penalty given the executive director
by this subchapter to the deputy [a person designated by the]
executive director.
SECTION 41. Section 15.032(b), Utilities Code, is amended
to read as follows:
(b) A suit for the recovery of a penalty does not:
(1) bar or affect the recovery of any other penalty; or
(2) bar a criminal prosecution or an action for civil
damages against any person.
SECTION 42. Section 15.033, Utilities Code, is amended to
read as follows:
Sec. 15.033. DISPOSITION OF FINES AND PENALTIES. A fine or
penalty collected under this title, other than a [fine or penalty
collected in a criminal proceeding or a] penalty collected under
Section 15.027(a), shall be paid to the commission.
SECTION 43. Sections 15.051(a) and (b), Utilities Code, are
amended to read as follows:
(a) An affected person may complain to the regulatory
authority in writing setting forth an act or omission by a [public]
utility or provider 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
information about each complaint filed with the commission that the
commission has authority to resolve. The information shall
include:
(1) the date the complaint is received;
(2) the name of the complainant;
(3) the subject matter of the complaint;
(4) a record of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) if the commission took no action on the complaint,
an explanation of the reason the complaint was closed without
action.
SECTION 44. The heading to Subchapter A, Chapter 16,
Utilities Code, is amended to read as follows:
SUBCHAPTER A. ASSESSMENT ON [PUBLIC] UTILITIES AND PROVIDERS
SECTION 45. Section 16.001, Utilities Code, is amended to
read as follows:
Sec. 16.001. ASSESSMENT ON [PUBLIC] UTILITIES AND
PROVIDERS. (a) To defray the expenses incurred in the
administration of this title, an assessment is imposed on each
[public] utility, [retail electric] provider, and electric
cooperative within the jurisdiction of the commission that serves
the ultimate consumer[, including each interexchange
telecommunications carrier].
(b) An assessment under this section may not exceed [is
equal to] one-sixth of one percent of the [public utility's, retail
electric provider's, or electric cooperative's] gross receipts from
rates charged to the ultimate consumer in this state.
(c) A utility and provider [An interexchange
telecommunications carrier that does not provide local exchange
telephone service] may collect the fee imposed under this section
as an additional item separately stated on the customer bill as
"public utility commission gross receipts assessment."
SECTION 46. Section 16.002(b), Utilities Code, is amended
to read as follows:
(b) A [public] utility or provider may instead make
quarterly payments due August 15, November 15, February 15, and May
15.
SECTION 47. Section 33.123(d), Utilities Code, is amended
to read as follows:
(d) Not later than the 120th day after the date the
commission enters its final order, the municipality shall assess a
onetime surcharge on a per capita basis among residential
ratepayers who reside outside the municipality to pay the
reasonable consultant and legal costs approved by the counselor
[counsellor]. The municipality shall reimburse the appellants for
incurred costs not later than the 90th day after the date the
commission enters its final order.
SECTION 48. The following provisions of the Utilities Code
are repealed:
(1) Section 11.008;
(2) Section 15.003(c);
(3) Section 15.028;
(4) Section 15.030;
(5) Section 15.052; and
(6) Chapter 17.
SECTION 49. Promptly after this Act takes effect, the
governor shall appoint two additional members to the Public Utility
Commission of Texas. Of those members, the governor shall
designate one to serve a term expiring September 1, 2009, and one to
serve a term expiring January 1, 2011. Until all appointees have
taken office, a quorum of the commission is a majority of the number
of members who are qualified.
SECTION 50. The repeal by this Act of Section 15.003(c),
Utilities Code, does not apply to a suit commenced before the
effective date of the repeal. A suit commenced before the effective
date of the repeal is governed by the law as it existed immediately
before the effective date of the repeal, and that law is continued
in effect for that purpose.
SECTION 51. The repeal by this Act of Sections 15.028 and
15.030, Utilities Code, does not apply to a violation of those
sections that occurs before the effective date of the repeal. A
violation that occurs before the effective date of the repeal is
governed by the law as it existed immediately before the effective
date of the repeal, and that law is continued in effect for that
purpose.
SECTION 52. The change in law made by this Act relating to
qualifications and eligibility to serve as chief executive of or to
be employed with the office of public utility counsel applies only
to a person appointed or employed after the effective date of this
Act. The chief executive or an employee of the office of public
utility counsel 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 53. 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 54. The changes in law made by this Act to Sections
15.023 and 15.024, Utilities Code, apply only to a violation
committed on or after the effective date of this Act. A violation
committed before the effective date of this Act is governed by the
law in effect when the violation was committed, and the former law
is continued in effect for that purpose.
SECTION 55. This Act takes effect September 1, 2005.