2009S0407-1 02/18/09
  By: Fraser S.B. No. 1772
  relating to the authority of the Public Utility Commission of Texas
  to order restitution for violations.
         SECTION 1.  Section 39.003, Utilities Code, is amended to
  read as follows:
         Sec. 39.003.  CONTESTED CASES.  Unless specifically provided
  otherwise, each commission proceeding under this chapter, other
  than a rulemaking proceeding, report, notification, or
  registration, shall be conducted as a contested case and the burden
  of proof is on the incumbent electric utility.  Any affected party
  may file a case for restitution under Section 39.157(a).  In any
  proceeding involving market power abuse, any affected party shall
  be granted the right to intervene.
         SECTION 2.  Subsection (a), Section 39.157, Utilities Code,
  is amended to read as follows:
         (a)  The commission shall monitor market power associated
  with the generation, transmission, distribution, and sale of
  electricity in this state. On a finding that market power abuses or
  other violations of this section have occurred or are occurring,
  the commission shall require reasonable mitigation of the market
  power by any combination of the following actions: ordering the
  construction of additional transmission or distribution
  facilities, [by] seeking an injunction or civil penalties as
  necessary to eliminate or to remedy the market power abuse or
  violation as authorized by Chapter 15, [by] imposing an
  administrative penalty as authorized by Chapter 15, ordering
  restitution to those parties affected by the market power abuse, or
  [by] suspending, revoking, or amending a certificate or
  registration as authorized by Section 39.356. Section 15.024(c)
  does not apply to an administrative penalty imposed under this
  section. For purposes of this subchapter, market power abuses are
  practices by persons possessing market power that are unreasonably
  discriminatory or tend to unreasonably restrict, impair, or reduce
  the level of competition, including practices that tie unregulated
  products or services to regulated products or services or
  unreasonably discriminate in the provision of regulated services.
  For purposes of this section, "market power abuses" include
  predatory pricing, withholding of production, precluding entry,
  and collusion. A violation of the code of conduct provided by
  Subsection (d) that materially impairs the ability of a person to
  compete in a competitive market shall be deemed to be an abuse of
  market power. The possession of a high market share in a market
  open to competition may not, of itself, be deemed to be an abuse of
  market power; however, this sentence shall not affect the
  application of state and federal antitrust laws.
         SECTION 3.  The changes in law made by this Act apply only to
  a violation that occurs or continues to occur on or after the
  effective date of this Act.  A violation that occurred before the
  effective date of this Act is covered by the law in effect at the
  time the violation occurred, and the former law is continued in
  effect for that purpose.
         SECTION 4.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution.  If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2009.