By: Nelson S.B. No. 409
Substitute the following for S.B. No. 409:
By: King of Parker C.S.S.B. No. 409
A BILL TO BE ENTITLED
AN ACT
relating to the continuation and functions of the Office of Public
Utility Counsel.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. 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 2. 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 appear or intervene, as a party or otherwise,
as a matter of right on behalf of:
(A) residential consumers, as a class, 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, 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, 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 3. Subchapter A, Chapter 13, Utilities Code, is
amended by adding Sections 13.004, 13.005, and 13.006 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. 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. 13.006. 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 4. 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 5. 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 6. 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 7. 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 8. 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 9. 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 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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 16. This Act takes effect September 1, 2005.