82R4302 JXC-D

By: Nichols, Gallegos, Patrick S.B. No. 573

A BILL TO BE ENTITLED

AN ACT

relating to certificates of public convenience and necessity for water or sewer services.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Sections 13.254(a), (a-1), and (a-3), Water Code, are amended to read as follows:

(a) The commission at any time after notice and hearing may[, on its own motion or on receipt of a petition described by Subsection (a-1),] 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) As an alternative to decertification under Subsection (a), the owner of a tract of land that is at least 25 [50] acres and that is not in a platted subdivision actually receiving water or sewer service may petition the commission under this subsection for expedited release of the area from a certificate of public convenience and necessity [so that the area may receive service from another retail public utility. The petitioner shall deliver, via certified mail, a copy of the petition to the certificate holder, who may submit information to the commission to controvert information submitted by the petitioner. The petitioner must demonstrate that:

[(1) a written request for service, other than a request for standard residential or commercial service, has been submitted to the certificate holder, identifying:

[(A) the area for which service is sought;

[(B) the timeframe within which service is needed for current and projected service demands in the area;

[(C) the level and manner of service needed for current and projected service demands in the area; and

[(D) any additional information requested by the certificate holder that is reasonably related to determination of the capacity or cost for providing the service;

[(2) the certificate holder has been allowed at least 90 calendar days to review and respond to the written request and the information it contains;

[(3) the certificate holder:

[(A) has refused to provide the service;

[(B) is not capable of providing the service on a continuous and adequate basis within the timeframe, at the level, or in the manner reasonably needed or requested by current and projected service demands in the area; or

[(C) conditions the provision of service on the payment of costs not properly allocable directly to the petitioner's service request, as determined by the commission; and

[(4) the alternate retail public utility from which the petitioner will be requesting service is capable of providing continuous and adequate service within the timeframe, at the level, and in the manner reasonably needed or requested by current and projected service demands in the area].

(a-3) Not later than 60 [Within 90] calendar days after [from] the date a landowner files a petition with the commission under [determines the petition filed pursuant to] Subsection (a-1) [to be administratively complete], the commission shall grant the petition [unless the commission makes an express finding that the petitioner failed to satisfy the elements required in Subsection (a-1) and supports its finding with separate findings and conclusions for each element based solely on the information provided by the petitioner and the certificate holder. The commission may grant or deny a petition subject to terms and conditions specifically related to the service request of the petitioner and all relevant information submitted by the petitioner and the certificate holder]. The commission may not deny a petition based on the fact that a certificate holder is a borrower under a federal loan program. In addition, the commission may require an award of compensation to the decertified retail public utility as otherwise provided by this section.

SECTION 2. The changes in law made by Section 13.254, Water Code, as amended by this Act, apply only to a petition filed on or after the effective date of this Act. A petition filed before the effective date of this Act is subject to the law in effect on the date the petition is filed, and that law is continued in effect for that purpose.

SECTION 3. This Act takes effect September 1, 2011.