79R4658 JJT-F
By:  Armbrister                                                   S.B. No. 765
A BILL TO BE ENTITLED
AN ACT
relating to the regulation of water and sewer utility services.               
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:                        
	SECTION 1.  Subchapter A, Chapter 13, Water Code, is amended 
by adding Section 13.004 to read as follows:
	Sec. 13.004.  LEGISLATIVE FINDINGS AND POLICY REGARDING 
REGIONALIZATION OF SERVICES.  (a) The legislature finds that 
regionalization of retail water or sewer utility services delivery 
promotes continuous, adequate, affordable, and reliable water and 
sewer utility services.
	(b)  Regionalization of retail water or sewer utility 
services may take the form of:
		(1)  a single retail public utility serving a service 
area that is composed of different communities or different 
subdivisions or portions of more than one county;
		(2)  a single retail public utility serving several 
isolated systems with each system providing services to one or more 
communities or subdivisions;
		(3)  several retail public utilities with the 
individual systems of the utilities operated through a centrally 
coordinated operating system;
		(4)  one or more retail public utilities served by a 
central wholesale provider; or
		(5)  permanent emergency interconnections between two 
or more retail public utilities.
	SECTION 2.  Sections 13.244(a) and (b), Water Code, are 
amended to read as follows:
	(a)  To obtain a certificate of public convenience and 
necessity or an amendment to a certificate, a retail [A] public 
utility must [or water supply or sewer service corporation shall] 
submit to the commission an application for the [to obtain a] 
certificate [of public convenience and necessity] or [an] amendment 
[of a certificate].
	(b)  On request by the commission, each retail public utility 
[and water supply or sewer service corporation] shall file with the 
commission a map or maps showing all its facilities and 
illustrating separately facilities for production, transmission, 
and distribution of its services, and each certificated retail 
public utility shall file with the commission a map or maps showing 
any facilities, customers, or area currently being served outside 
its certificated areas.  The service area boundary defined by the 
map may be described by a metes and bounds survey, by lot and block 
number, or by verifiable landmarks such as roads, creeks, or 
railroads.
	SECTION 3.  Subchapter G, Chapter 13, Water Code, is amended 
by adding Section 13.245 to read as follows:
	Sec. 13.245.  EXTENSIONS OF CERTIFICATED AREA FOR 
MUNICIPALITIES WITH A POPULATION GREATER THAN 750,000.  (a) The 
commission shall amend a municipality's certificate of public 
convenience and necessity on the application of the municipality to 
extend the certificated area to match the municipality's extensions 
of its extraterritorial jurisdiction.
	(b)  To qualify for the extension under Subsection (a), the 
municipality must:
		(1)  have a population greater than 750,000;                           
		(2)  hold a certificate of public convenience and 
necessity for all or a portion of the municipality's 
extraterritorial jurisdiction; and
		(3)  include with the municipality's application for 
the amendment a map, following property boundaries identified by 
county tax appraisal records, that defines the area proposed to be 
certificated.
	(c)  An extension of the certificated area granted under 
Subsection (a) may not include any area that is included in a 
certificate of public convenience and necessity held by another 
retail public utility.
	(d)  The commission shall issue the amended certificate of 
public convenience and necessity extending the certificated area as 
provided by this section not later than the 180th day after the 
commission receives the municipality's application.
	SECTION 4.  Section 13.246, Water Code, is amended by adding 
Subsection (a-1) and amending Subsections (b) and (c) to read as 
follows:
	(a-1)  In addition to the notice required by Subsection (a), 
the commission by rule shall require notice to be mailed to each 
owner of a tract of land included in the area proposed to be 
certificated that is 100 acres or larger in size.  Notice required 
under this subsection must be mailed by first class mail to the 
owners of the tracts according to the most current tax appraisal 
rolls at the time the commission received the application for the 
certificate.  Notice under this subsection is not required for a 
matter filed with the commission under:
		(1)  Section 13.248, 13.255, or 13.301; or                             
		(2)  Chapter 65.                                                       
	(b)  The commission may grant applications and issue 
certificates only if the commission finds that a certificate is 
necessary for the service, accommodation, convenience, or safety of 
the public.  The commission may issue a certificate as requested, or 
refuse to issue it, or issue it for the construction of only a 
portion of the contemplated system or facility or extension, or for 
the partial exercise only of the right or privilege and may impose 
special conditions necessary to ensure that continuous and adequate 
service is provided.  The commission may not grant to more than one 
retail public utility serving or proposing to serve an area a 
certificate authorizing service to the area unless all retail 
public utilities serving and proposing to serve the area consent to 
that action.
	(c)  Certificates of convenience and necessity shall be 
granted on a nondiscriminatory basis after consideration by the 
commission of the adequacy of service currently provided to the 
requested area, the need for additional service in the requested 
area, the effect of the granting of a certificate on the recipient 
of the certificate and on any retail public utility of the same kind 
already serving the proximate area, the ability of the applicant to 
provide adequate service, the feasibility of obtaining service from 
an adjacent retail public utility, the financial stability of the 
applicant, including, if applicable, the adequacy of the 
applicant's debt-equity ratio, environmental integrity, and the 
probable improvement of service or lowering of cost to consumers in 
that area resulting from the granting of the certificate.  In 
determining the need for additional service in a requested area 
under this subsection, the commission shall consider projected 
growth in service demand, the benefits of regionalization of 
service to present and projected customers by incorporation of the 
requested area into an existing certificated area, and the 
potential that denial of the certificate for the requested area may 
increase the costs of and delays in providing service to the area.  
The commission may consider documentary evidence of the current 
demand for service in the requested area, but the absence of 
documentation of current demand does not preclude certification of 
the requested area.
	SECTION 5.  Section 13.254, Water Code, is amended by 
amending Subsections (a), (e), (f), and (g) and adding Subsections 
(a-1) and (g-1) to read as follows:
	(a)  The commission at any time after notice and hearing may 
revoke or amend any certificate of public convenience and necessity 
with the written consent of the certificate holder or if it finds 
that:
		(1)  the certificate holder has never provided, is no 
longer providing, is incapable of providing, or has failed to 
provide continuous and adequate service in the area, or part of the 
area, covered by the certificate;
		(2)  [in an affected county as defined in Section 
16.341,] the cost of providing service by the certificate holder is 
so prohibitively expensive as to constitute denial of service, 
provided that[, for commercial developments or for residential 
developments started after September 1, 1997, in an affected county 
as defined in Section 16.341,] the fact that the cost of obtaining 
service from the currently certificated retail public utility makes 
the development economically unfeasible does not render such cost 
prohibitively expensive in the absence of other relevant factors;
		(3)  the certificate holder has agreed in writing to 
allow another retail public utility to provide service within its 
service area, except for an interim period, without amending its 
certificate;  or
		(4)  the certificate holder has failed to file a cease 
and desist action pursuant to Section 13.252 within 180 days of the 
date that it became aware that another retail public utility was 
providing service within its service area, unless the certificate 
holder demonstrates good cause for its failure to file such action 
within the 180 days.
	(a-1)  In determining whether the certificate holder is 
incapable of providing continuous and adequate service, the 
commission shall consider:
		(1)  whether the certificate holder demonstrates 
adequate financial, managerial, and technical capability;
		(2)  whether the certificate holder has responded 
appropriately to requests for service;
		(3)  whether the certificate holder maintains an 
adequate supply of water or sewer treatment and disposal capacity 
for current and projected service demands;
		(4)  the effects on regionalization of service that 
revocation or amendment of the certificate may have; and
		(5)  other relevant factors.                                           
	(e)  The determination of the monetary amount of 
compensation, if any, shall be determined at the time another 
retail public utility seeks to provide service in the previously 
decertified area and before service is actually provided.  The 
commission shall ensure that the monetary amount of compensation is 
determined not later than the 90th day after the date on which a 
retail public utility notifies the commission of its intent to 
provide service to the decertified area.
	(f)  The monetary amount shall be determined by a qualified 
individual or firm serving as independent appraiser agreed upon by 
the decertified retail public utility and the retail public utility 
seeking to serve the area, or, if the retail public utilities do not 
agree, by an independent appraiser designated by the commission.  
The determination of compensation by the independent appraiser 
shall be binding on the commission.  The costs of the independent 
appraiser shall be borne by the retail public utility seeking to 
serve the area.
	(g)  For the purpose of implementing this section, the value 
of real property shall be determined according to the standards set 
forth in Chapter 21, Property Code, governing actions in eminent 
domain and the value of personal property and the retail public 
utility's business shall be determined according to the factors in 
this subsection.  The factors ensuring that the compensation to a 
retail public utility for the taking, damaging, or loss of personal 
property, including the retail public utility's business, is just 
and adequate shall at a minimum include:  the impact on the existing 
indebtedness of the retail public utility and its ability to repay 
that debt;  the value of the service facilities of the retail public 
utility located within the area in question;  the amount of any 
expenditures for planning, design, or construction of service 
facilities that are allocable to service to the area in question;  
the amount of the retail public utility's contractual obligations 
allocable to the area in question;  any demonstrated impairment of 
service or increase of cost to consumers of the retail public 
utility remaining after the decertification;  the impact on future 
revenues and expenses of the retail public utility;  necessary and 
reasonable legal expenses and professional fees;  factors relevant 
to maintaining the current financial integrity of the retail public 
utility;  and other relevant factors.
	(g-1)  The commission shall adopt rules governing the 
evaluation of the factors considered in determining the monetary 
value of personal property and a retail public utility's business 
under Subsection (g).
	SECTION 6.  Section 13.2541(d), Water Code, is amended to 
read as follows:   
	(d)  The compensation paid to the decertified public utility 
for its facilities shall be determined by a qualified individual or 
firm serving as independent appraiser agreed upon by the 
decertified public utility and the municipality, or, if the retail 
public utilities do not agree, by an independent appraiser 
designated by the commission.  The determination of compensation by 
the independent appraiser shall be binding on the commission.  The 
municipality shall pay the costs of the independent appraiser.  For 
the purpose of implementing this section, the value of real 
property shall be determined according to the standards prescribed 
by Chapter 21, Property Code, governing actions in eminent domain.
	SECTION 7.  Section 13.255, Water Code, is amended by 
amending Subsection (g) and adding Subsection (g-1) to read as 
follows:
	(g)  For the purpose of implementing this section, the value 
of real property shall be determined according to the standards set 
forth in Chapter 21, Property Code, governing actions in eminent 
domain;  the value of personal property and the retail public 
utility's business shall be determined according to the factors in 
this subsection.  The factors ensuring that the compensation to a 
retail public utility for the taking, damaging, and/or loss of 
personal property, including the retail public utility's business, 
is just and adequate, shall, at a minimum, include:  impact on the 
existing indebtedness of the retail public utility and its ability 
to repay that debt, the value of the service facilities of the 
retail public utility located within the area in question, the 
amount of any expenditures for planning, design, or construction of 
service facilities outside the incorporated or annexed area that 
are allocable to service to the area in question, the amount of the 
retail public utility's contractual obligations allocable to the 
area in question, any demonstrated impairment of service or 
increase of cost to consumers of the retail public utility 
remaining after the single certification, the impact on future 
revenues and expenses of the retail public utility, necessary and 
reasonable legal expenses and professional fees, factors relevant 
to maintaining the current financial integrity of the retail public 
utility, and other relevant factors.
	(g-1)  The commission shall adopt rules governing the 
evaluation of the factors to be considered in determining the 
monetary value of personal property and a retail public utility's 
business under Subsection (g).  The commission by rule shall adopt 
procedures to ensure that the determination of the total 
compensation to be paid to a retail public utility under Subsection 
(g) is paid not later than the 90th day after the date on which the 
commission determines that the municipality's application is 
administratively complete.
	SECTION 8.  Section 13.257, Water Code, is amended by 
amending Subsections (a) and (b) and adding Subsection (r) to read 
as follows:
	(a)  In this section, "utility service provider" means a 
retail public  utility [, a water supply or sewer service 
corporation, or a special utility district organized and operating 
under Chapter 65].
	(b)  If a person proposes to sell or convey [unimproved] real 
property located in a certificated service area of a utility 
service provider, the person must give to the purchaser written 
notice as prescribed by this section.  An executory contract for the 
purchase and sale of real property that has a performance period of 
more than six months is considered a sale of real property under 
this section.
	(r)  A utility service provider must file a copy of its 
current certificated service area map, as contained in the 
commission's records, in the real property records of all counties 
in which any part of the certificated service area is located.  Each 
county shall accept and file in its real property records a utility 
service provider's map presented to the county clerk under this 
subsection.
	SECTION 9.  The changes in law made by this Act apply only 
to:               
		(1)  an application for a certificate of public 
convenience and necessity or for an amendment to a certificate of 
public convenience and necessity presented to the Public Utility 
Commission of Texas on or after January 1, 2006;
		(2)  a proceeding to amend or revoke a certificate of 
public convenience and necessity initiated on or after January 1, 
2006; and
		(3)  a proposal to sell or convey real property that 
occurs on or after January 1, 2006.
	SECTION 10.  This Act takes effect September 1, 2005.