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79R9589 MTB-F
By: West H.B. No. 2986
A BILL TO BE ENTITLED
AN ACT
relating to the informal resolution of certain proceedings
conducted by the Railroad Commission of Texas.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter A, Chapter 102, Utilities Code, is
amended by adding Section 102.0055 to read as follows:
Sec. 102.0055. INFORMAL RESOLUTION OF CONTESTED
PROCEEDINGS. (a) In this section, "contested proceeding" means a
hearing, claim, complaint, investigation, inquiry, or other
procedure for finding facts or making a decision:
(1) that involves disputed issues of law, fact, or
both law and fact arising out of a contract for a transaction or for
services; and
(2) over which the railroad commission has original
jurisdiction under this title.
(b) This section does not apply to a contested proceeding:
(1) initiated under Chapter 103;
(2) initiated under Subchapter C or G, Chapter 104; or
(3) related to the rates, services, or practices of a
gas utility that is not docketed by the railroad commission.
(c) The railroad commission by rule shall establish a
process for informal resolution of contested proceedings as
provided by this section. The railroad commission by rule shall
require all parties to a contested proceeding to participate in the
informal resolution process. A hearing may not be conducted under
Section 102.006 until the informal resolution process is completed.
(d) The railroad commission shall require the parties to a
contested proceeding to participate in a mediation process, as the
first step of the informal resolution procedure, and undertake to
settle all issues raised in the case by the mediation process. The
commission rules must provide for the appointment of railroad
commission staff to conduct the mediation process and must require
the process to be completed not later than the 90th day after the
date the relevant contested proceeding is docketed by the railroad
commission unless the parties to the mediation and the commission
staff agree that additional time is warranted.
(e) The railroad commission staff shall conduct limited
discovery as part of the mediation. The discovery is limited to
obtaining copies of the 10 most relevant contracts for services or
transactions that are similar to the contract that is the basis for
the contested proceeding and any other relevant documents or
information the staff determines is necessary to the mediation.
The mediator shall provide to the parties to the mediation the
mediator's summary of relevant information contained in the
contracts without disclosing the parties to the contracts or
information that allows a party to a contract to be identified. If
the party producing the contracts or other relevant documents
requests that the contracts or documents be reviewed at the party's
offices, the railroad commission staff may make copies of the
contracts or documents for the mediation process and the producing
party shall pay the staff's travel expenses in an amount not to
exceed the per diem allowance for state employees in accordance
with the General Appropriations Act.
(f) If the parties agree for the mediation to be conducted
at a location other than the offices of the railroad commission in
Austin, Texas, the parties shall share equally the cost of the
railroad commission staff's travel expenses in an amount not to
exceed the per diem allowance for state employees in accordance
with the General Appropriations Act.
(g) If the mediation process results in an agreed settlement
of all issues, the railroad commission by order shall approve the
settlement and dismiss the contested proceeding.
(h) If the mediation process does not result in an agreed
settlement of all issues during the period for mediation provided
by Subsection (d), railroad commission staff shall, before the 11th
day after the completion of the period for mediation, send a
confidential memorandum to each party to the mediation process that
states one of the following conclusions, based on the information
reviewed by the staff:
(1) no discriminatory act has been identified; or
(2) further formal proceeding is warranted.
(i) After a memorandum is issued under Subsection (h),
railroad commission staff shall:
(1) convene a settlement conference of the parties to
be held before the 31st day after the completion of the period for
mediation, if a party requests a settlement conference based on the
memorandum; or
(2) set the contested proceeding for an administrative
hearing under Section 102.006:
(A) not later than the 61st day after the
completion of the period for mediation; or
(B) at a time considered appropriate by the
railroad commission staff, if the contested proceeding relates to
setting a cost of service rate under Subchapter B, Chapter 104.
(j) If the railroad commission staff convenes a settlement
conference and the conference results in an agreed settlement, the
railroad commission by order shall approve the settlement and
dismiss the contested proceeding. If a settlement conference does
not result in an agreed settlement, the railroad commission staff
shall set the matter for an administrative hearing under Section
102.006.
(k) Section 2009.054, Government Code, applies to
information produced or obtained during a mediation or settlement
conference under this section.
(l) If a contested proceeding is settled under this section,
the railroad commission may award to the prevailing party all or a
part of the equitable and just costs actually incurred under this
section, including the costs of mediation, just and reasonable
attorney's fees, expert witness fees, investigation costs, and
costs of mediation personnel. An award under this subsection does
not affect the amount of litigation expenses a party may be entitled
to recover under other law or a rule adopted by the railroad
commission. Unless authorized by the railroad commission, costs
assessed under this subsection against a gas utility may not be
recovered through a rate set by the railroad commission. Costs may
not be awarded under this subsection unless a party has made a
settlement offer and the agreed settlement contained in the
railroad commission's order adopts the position contained in the
offer.
SECTION 2. Subchapter G, Chapter 111, Natural Resources
Code, is amended by adding Section 111.228 to read as follows:
Sec. 111.228. INFORMAL RESOLUTION OF CONTESTED
PROCEEDINGS. (a) In this section, "contested proceeding" means a
hearing, claim, complaint, investigation, inquiry, or other
procedure for finding facts or making a decision:
(1) that involves disputed issues of law, fact, or
both law and fact arising out of a contract for a transaction or for
services; and
(2) over which the commission has jurisdiction under
this chapter or Chapter 117.
(b) This section does not apply to a contested proceeding
related to the rates, services, or practices of a public utility or
pipeline facility that is not docketed by the commission.
(c) The commission by rule shall establish a process for
informal resolution of contested proceedings as provided by this
section. The commission by rule shall require all parties to a
contested proceeding to participate in the informal resolution
process. A hearing may not be conducted under this chapter or
Chapter 117 until the informal resolution process is completed.
(d) The commission shall require the parties to a contested
proceeding to participate in a mediation process, as the first step
of the informal resolution procedure, and undertake to settle all
issues raised in the case by the mediation process. The commission
rules must provide for the appointment of commission staff to
conduct the mediation process and must require the process to be
completed not later than the 90th day after the date the relevant
contested proceeding is docketed by the commission unless the
parties to the mediation and the commission staff agree that
additional time is warranted.
(e) The commission staff shall conduct limited discovery as
part of the mediation. The discovery is limited to obtaining copies
of the 10 most relevant contracts for services or transactions that
are similar to the contract that is the basis for the contested
proceeding and any other relevant documents or information the
staff determines is necessary to the mediation. The mediator shall
provide to the parties to the mediation the mediator's summary of
relevant information contained in the contracts without disclosing
the parties to the contracts or information that allows a party to a
contract to be identified. If the party producing the contracts or
other relevant documents requests that the contracts or documents
be reviewed at the party's offices, the commission staff may make
copies of the contracts or documents for the mediation process and
the producing party shall pay the staff's travel expenses in an
amount not to exceed the per diem allowance for state employees in
accordance with the General Appropriations Act.
(f) If the parties agree for the mediation to be conducted
at a location other than the offices of the commission in Austin,
Texas, the parties shall share equally the cost of the commission
staff's travel expenses in an amount not to exceed the per diem
allowance for state employees in accordance with the General
Appropriations Act.
(g) If the mediation process results in an agreed settlement
of all issues, the commission by order shall approve the settlement
and dismiss the contested proceeding.
(h) If the mediation process does not result in an agreed
settlement of all issues during the period for mediation provided
by Subsection (d), commission staff shall, before the 11th day
after the completion of the period for mediation, send a
confidential memorandum to each party to the mediation process that
states one of the following conclusions, based on the information
reviewed by the staff:
(1) no discriminatory act has been identified; or
(2) further formal proceeding is warranted.
(i) After a memorandum is issued under Subsection (h),
commission staff shall:
(1) convene a settlement conference of the parties to
be held before the 31st day after the completion of the period for
mediation if a party requests a settlement conference based on the
memorandum; or
(2) set the contested proceeding for an administrative
hearing under this chapter or Chapter 117 not later than the 61st
day after the completion of the period for mediation.
(j) If the commission staff convenes a settlement
conference and the conference results in an agreed settlement, the
commission by order shall approve the settlement and dismiss the
contested proceeding. If a settlement conference does not result
in an agreed settlement, the commission staff shall set the matter
for an administrative hearing under this chapter or Chapter 117.
(k) Section 2009.054, Government Code, applies to any
information produced or obtained during a mediation or settlement
conference under this section.
(l) If a contested proceeding is settled under this section,
the commission may award to the prevailing party all or a part of
the equitable and just costs actually incurred under this section,
including the costs of mediation, just and reasonable attorney's
fees, expert witness fees, investigation costs, and costs of
mediation personnel. An award under this subsection does not
affect the amount of litigation expenses a party may be entitled to
recover under other law or a rule adopted by the commission. Unless
authorized by the commission, costs assessed under this subsection
against a public utility or pipeline facility may not be recovered
through a rate set by the commission. Costs may not be awarded
under this subsection unless a party has made a settlement offer and
the agreed settlement contained in the commission's order adopts
the position contained in the offer.
SECTION 3. This Act takes effect September 1, 2005.