74R13820 E
By Armbrister S.B. No. 373
Substitute the following for S.B. No. 373:
By Seidlits C.S.S.B. No. 373
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the continuation, operations, and functions of the
1-3 Public Utility Commission of Texas and the Office of Public Utility
1-4 Counsel; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 ARTICLE 1
1-7 SECTION 1.01. Section 1.003, Public Utility Regulatory Act
1-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-9 Regular Session, 1995, is amended by adding Subdivisions (13A) and
1-10 (18) to read as follows:
1-11 (13A) The term "ratemaking proceeding" is limited to
1-12 those proceedings in which rates are changed, except the term shall
1-13 include proceedings initiated under Section 2.051 of this Act.
1-14 (18) "Trade association" means a nonprofit,
1-15 cooperative, and voluntarily joined association of business or
1-16 professional persons who are employed by public utilities or
1-17 utility competitors to assist the public utility industry, a
1-18 utility competitor, or the industry's or competitor's employees in
1-19 dealing with mutual business or professional problems and in
1-20 promoting their common interest.
1-21 SECTION 1.02. Section 1.005, Public Utility Regulatory Act
1-22 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-23 Regular Session, 1995, is amended to read as follows:
1-24 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
2-1 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
2-2 to all proceedings under this Act except to the extent inconsistent
2-3 with this Act. Communications of members and employees of the
2-4 commission with a party, a party's representative, or other persons
2-5 are governed by Section 2001.061, Government Code.
2-6 (b) The commission is subject to Chapter 551, Government
2-7 Code.
2-8 SECTION 1.03. Subtitle A, Title I, Public Utility Regulatory
2-9 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
2-10 Legislature, Regular Session, 1995, is amended by adding Section
2-11 1.006 to read as follows:
2-12 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
2-13 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
2-14 utility competitor, or utility supplier is considered to be
2-15 affected in a manner other than by the setting of rates for that
2-16 class of customer if during a relevant calendar year the entity
2-17 provides fuel, utility-related goods, utility-related products, or
2-18 utility-related services to a regulated or unregulated provider of
2-19 telecommunications or electric services or to an affiliated
2-20 interest in an amount equal to the greater of $10,000 or 10 percent
2-21 of the person's business.
2-22 SECTION 1.04. Subsections (c) and (d), Section 1.021, Public
2-23 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
2-24 the 74th Legislature, Regular Session, 1995, are amended to read as
2-25 follows:
2-26 (c) The governor shall designate a member of the commission
2-27 as presiding officer of the commission to serve in that capacity at
3-1 the pleasure of the governor. <At its first meeting following the
3-2 biennial appointment and qualification of a commissioner, the
3-3 commission shall elect one of the commissioners chairman.>
3-4 (d) Appointments to the commission shall be made without
3-5 regard to the race, color, disability <creed>, sex, religion, age,
3-6 or national origin of the appointees.
3-7 SECTION 1.05. Section 1.022, Public Utility Regulatory Act
3-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-9 Regular Session, 1995, is amended to read as follows:
3-10 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
3-11 of Texas and the Office of Public Utility Counsel are subject to
3-12 Chapter 325, Government Code (Texas Sunset Act). Unless continued
3-13 in existence as provided by that chapter, the commission and the
3-14 office are abolished and this Act expires September 1, 2001 <1995>.
3-15 SECTION 1.06. Section 1.023, Public Utility Regulatory Act
3-16 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-17 Regular Session, 1995, is amended to read as follows:
3-18 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
3-19 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
3-20 a person must be a qualified voter, <not less than 30 years of
3-21 age,> a citizen of the United States, <and> a resident of the State
3-22 of Texas, and a representative of the general public.
3-23 (b) Each commissioner shall qualify for office by taking the
3-24 oath prescribed for other state officers <and shall execute a bond
3-25 for $5,000 payable to the state and conditioned on the faithful
3-26 performance of his duties>.
3-27 (c) A person is not eligible for appointment as a
4-1 commissioner if at any time during the two-year period immediately
4-2 preceding his appointment he personally served as an officer,
4-3 director, owner, employee, partner, or legal representative of any
4-4 public utility, <or any> affiliated interest, or direct competitor
4-5 of a public utility or he owned or controlled, directly or
4-6 indirectly, stocks or bonds of any class with a value of $10,000 or
4-7 more in a public utility, <or any> affiliated interest, or direct
4-8 competitor of a public utility.
4-9 (d) A person who is required to register as a lobbyist under
4-10 Chapter 305, Government Code, because of the person's activities
4-11 for compensation on behalf of a profession related to the operation
4-12 of the commission may not serve as a member of the commission or
4-13 public utility counsel or act as the general counsel to the
4-14 commission.
4-15 (e) A person is not eligible for appointment as a public
4-16 member of the commission or for employment as the general counsel
4-17 or executive director of the commission if:
4-18 (1) the person serves on the board of directors of a
4-19 company that supplies fuel, utility-related services, or
4-20 utility-related products to regulated or unregulated electric or
4-21 telecommunications utilities; or
4-22 (2) the person or the person's spouse:
4-23 (A) is employed by or participates in the
4-24 management of a business entity or other organization regulated by
4-25 the commission or receiving funds from the commission;
4-26 (B) owns or controls, directly or indirectly,
4-27 more than a 10 percent interest or a pecuniary interest with a
5-1 value exceeding $10,000 in:
5-2 (i) a business entity or other
5-3 organization regulated by the commission or receiving funds from
5-4 the commission; or
5-5 (ii) any utility competitor, utility
5-6 supplier, or other entity affected by a commission decision in a
5-7 manner other than by the setting of rates for that class of
5-8 customer;
5-9 (C) uses or receives a substantial amount of
5-10 tangible goods, services, or funds from the commission, other than
5-11 compensation or reimbursement authorized by law for commission
5-12 membership, attendance, or expenses; or
5-13 (D) notwithstanding Paragraph (B) of this
5-14 subdivision, has an interest in a mutual fund or retirement fund in
5-15 which more than 10 percent of the fund's holdings at the time of
5-16 appointment is in a single utility, utility competitor, or utility
5-17 supplier in this state and the person does not disclose this
5-18 information to the governor, senate, commission, or other entity,
5-19 as appropriate.
5-20 (f) Notwithstanding any other provision of this Act, a
5-21 person otherwise ineligible because of the application of
5-22 Subsection (e)(2)(B) of this section may be appointed to the
5-23 commission and serve as a commissioner or may be employed as the
5-24 general counsel or executive director if the person:
5-25 (1) notifies the attorney general and commission that
5-26 the person is ineligible because of the application of Subsection
5-27 (e)(2)(B) of this section; and
6-1 (2) divests the person or the person's spouse of the
6-2 ownership or control before beginning service or employment, or
6-3 within a reasonable time if the person is already serving or
6-4 employed at the time Subsection (e)(2)(B) of this section first
6-5 applies to the person.
6-6 (g) An officer, employee, or paid consultant of a trade
6-7 association in the field of public utilities may not be a member or
6-8 employee of the commission who is exempt from the state's position
6-9 classification plan or is compensated at or above the amount
6-10 prescribed by the General Appropriations Act for step 1, salary
6-11 group 17, of the position classification salary schedule.
6-12 (h) A person who is a spouse of an officer, manager, or paid
6-13 consultant of a trade association in the field of public utilities
6-14 may not be a commission member and may not be a commission employee
6-15 who is exempt from the state's position classification plan or is
6-16 compensated at or above the amount prescribed by the General
6-17 Appropriations Act for step 1, salary group 17, of the position
6-18 classification salary schedule.
6-19 SECTION 1.07. Subsections (a), (d), and (e), Section 1.024,
6-20 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
6-21 Acts of the 74th Legislature, Regular Session, 1995, are amended to
6-22 read as follows:
6-23 (a) A commissioner or employee of the commission may not do
6-24 any of the following during his period of service with the
6-25 commission:
6-26 (1) have any pecuniary interest, either as an officer,
6-27 director, partner, owner, employee, attorney, consultant, or
7-1 otherwise, in any public utility or affiliated interest, or in any
7-2 person or corporation or other business entity a significant
7-3 portion of whose business consists of furnishing goods or services
7-4 to public utilities or affiliated interests, but not including a
7-5 nonprofit group or association solely supported by gratuitous
7-6 contributions of money, property or services, other than a trade
7-7 association;
7-8 (2) own or control any securities in a public utility,
7-9 <or> affiliated interest, or direct competitor of a public utility,
7-10 either directly or indirectly; or
7-11 (3) accept any gift, gratuity, or entertainment
7-12 whatsoever from any public utility, <or> affiliated interest, or
7-13 direct competitor of a public utility, or from any person,
7-14 corporation, agent, representative, employee, or other business
7-15 entity a significant portion of whose business consists of
7-16 furnishing goods or services to public utilities, <or> affiliated
7-17 interests, or direct competitors of public utilities, or from any
7-18 agent, representative, attorney, employee, officer, owner,
7-19 director, or partner of any such business entity or of any public
7-20 utility, <or> affiliated interest, or direct competitor of a public
7-21 utility; provided, however, that the receipt and acceptance of any
7-22 gifts, gratuities, or entertainment after termination of service
7-23 with the commission whose cumulative value in any one-year period
7-24 is less than $100 does not constitute a violation of this Act.
7-25 (d) A public utility, <or> affiliated interest, or direct
7-26 competitor of a public utility, or any person, corporation, firm,
7-27 association, or business that furnishes goods or services to any
8-1 public utility, <or> affiliated interest, or direct competitor of a
8-2 public utility, or any agent, representative, attorney, employee,
8-3 officer, owner, director, or partner of any public utility, <or>
8-4 affiliated interest, or direct competitor of a public utility, or
8-5 any person, corporation, firm, association, or business furnishing
8-6 goods or services to any public utility, <or> affiliated interest,
8-7 or direct competitor of a public utility may not give or offer to
8-8 give any gift, gratuity, employment, or entertainment whatsoever to
8-9 any member or employee of the commission except as allowed by
8-10 Subdivision (3) of Subsection (a) of this section, nor may any such
8-11 public utility, <or> affiliated interest, or direct competitor of a
8-12 public utility or any such person, corporation, firm, association,
8-13 or business aid, abet, or participate with any member, employee, or
8-14 former employee of the commission in any activity or conduct that
8-15 would constitute a violation of this subsection or Subdivision (3)
8-16 of Subsection (a) of this section.
8-17 (e) It is not a violation of this section if a member of the
8-18 commission or a person employed by the commission, upon becoming
8-19 the owner of any stocks or bonds or other pecuniary interest in a
8-20 public utility, <or> affiliated interest, or direct competitor of a
8-21 public utility <under the jurisdiction of the commission> otherwise
8-22 than voluntarily, informs the commission and the attorney general
8-23 of such ownership and divests himself of the ownership or interest
8-24 within a reasonable time. In this section, a "pecuniary interest"
8-25 includes income, compensation, and payment of any kind, in addition
8-26 to ownership interests. It is not a violation of this section if
8-27 such a pecuniary interest is held indirectly by ownership of an
9-1 interest in a retirement system, institution, or fund which in the
9-2 normal course of business invests in diverse securities
9-3 independently of the control of the commissioner or employee.
9-4 SECTION 1.08. Section 1.025, Public Utility Regulatory Act
9-5 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-6 Regular Session, 1995, is amended to read as follows:
9-7 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
9-8 (a) A commissioner may not within two years, and an employee of
9-9 the commission or an employee of the State Office of Administrative
9-10 Hearings involved in hearing utility cases may not, within one year
9-11 after his employment with the commission or the State Office of
9-12 Administrative Hearings has ceased, be employed by a public utility
9-13 which was in the scope of the commissioner's or employee's official
9-14 responsibility while the commissioner or employee was associated
9-15 with the commission or the State Office of Administrative Hearings.
9-16 (b) During the time a commissioner or employee of the
9-17 commission or an employee of the State Office of Administrative
9-18 Hearings involved in hearing utility cases is associated with the
9-19 commission or State Office of Administrative Hearings or at any
9-20 time after, the commissioner or employee may not represent a
9-21 person, corporation, or other business entity before the commission
9-22 or State Office of Administrative Hearings or a court in a matter
9-23 in which the commissioner or employee was personally involved while
9-24 associated with the commission or State Office of Administrative
9-25 Hearings or a matter that was within the commissioner's or
9-26 employee's official responsibility while the commissioner or
9-27 employee was associated with the commission or State Office of
10-1 Administrative Hearings.
10-2 (c) The executive director or the executive director's
10-3 designee <commission> shall provide to <require its> members of the
10-4 commission and to agency employees <to read this section and
10-5 Section 1.024 of this Act and> as often as necessary <shall
10-6 provide> information regarding their qualifications for office or
10-7 employment under this Act and their responsibilities under
10-8 applicable laws relating to standards of conduct for state officers
10-9 and employees.
10-10 SECTION 1.09. Section 1.026, Public Utility Regulatory Act
10-11 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-12 Regular Session, 1995, is amended to read as follows:
10-13 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
10-14 (a) It is a ground for removal from the commission if a member:
10-15 (1) does not have at the time of appointment the
10-16 qualifications required by Section 1.023 of this Act <for
10-17 appointment to the commission>; <or>
10-18 (2) does not maintain during <the> service on the
10-19 commission the qualifications required by Section 1.023 of this
10-20 Act;
10-21 (3) violates a prohibition established by Section
10-22 1.023, 1.024, or 1.025 of this Act;
10-23 (4) cannot discharge the member's duties for a
10-24 substantial part of the term for which the member is appointed
10-25 because of illness or disability; or
10-26 (5) is absent from more than half of the regularly
10-27 scheduled commission meetings that the member is eligible to attend
11-1 during a calendar year unless the absence is excused by majority
11-2 vote of <for appointment to> the commission.
11-3 (b) The validity of an action of the commission is not
11-4 affected by the fact that it is <was> taken when a ground for
11-5 removal of a commission member exists <of the commission existed>.
11-6 (c) If the executive director has knowledge that a potential
11-7 ground for removal exists, the executive director shall notify the
11-8 presiding officer of the commission of the potential ground. The
11-9 presiding officer shall then notify the governor and the attorney
11-10 general that a potential ground for removal exists. If the
11-11 potential ground for removal involves the presiding officer of the
11-12 commission, the executive director shall notify the next highest
11-13 officer of the commission, who shall notify the governor and the
11-14 attorney general that a potential ground for removal exists.
11-15 (d) Before a member of the commission may assume the
11-16 member's duties and before the member may be confirmed by the
11-17 senate, the member must complete at least one course of the
11-18 training program established under this section.
11-19 (e) A training program established under this section shall
11-20 provide information to the member regarding:
11-21 (1) the enabling legislation that created the
11-22 commission and its policymaking body to which the member is
11-23 appointed to serve;
11-24 (2) the programs operated by the commission;
11-25 (3) the role and functions of the commission;
11-26 (4) the rules of the commission with an emphasis on
11-27 the rules that relate to disciplinary and investigatory authority;
12-1 (5) the current budget for the commission;
12-2 (6) the results of the most recent formal audit of the
12-3 commission;
12-4 (7) the requirements of Chapters 551, 552, and 2001,
12-5 Government Code;
12-6 (8) the requirements of the conflict of interest laws
12-7 and other laws relating to public officials; and
12-8 (9) any applicable ethics policies adopted by the
12-9 commission or the Texas Ethics Commission.
12-10 SECTION 1.10. Subsections (a), (b), and (e), Section 1.028,
12-11 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
12-12 Acts of the 74th Legislature, Regular Session, 1995, are amended to
12-13 read as follows:
12-14 (a) The commission shall employ an executive director, a
12-15 general counsel, and such officers<, administrative law judges,
12-16 hearing examiners, investigators, lawyers, engineers, economists,
12-17 consultants, statisticians, accountants, administrative assistants,
12-18 inspectors, clerical staff,> and other employees as it deems
12-19 necessary to carry out the provisions of this Act. All employees
12-20 receive such compensation as is fixed by the legislature. The
12-21 commission shall develop and implement policies that clearly define
12-22 the respective responsibilities of the commission and the staff of
12-23 the commission.
12-24 (b) The executive director is responsible for the day-to-day
12-25 operations of the commission and shall coordinate the activities of
12-26 commission employees <commission shall employ the following:>
12-27 <(1) an executive director;>
13-1 <(2) a director of hearings who has wide experience in
13-2 utility regulation and rate determination;>
13-3 <(3) a chief engineer who is a registered engineer and
13-4 an expert in public utility engineering and rate matters;>
13-5 <(4) a chief accountant who is a certified public
13-6 accountant, experienced in public utility accounting;>
13-7 <(5) a director of research who is experienced in the
13-8 conduct of analyses of industry, economics, energy, fuel, and other
13-9 related matters that the commission may want to undertake;>
13-10 <(6) a director of consumer affairs and public
13-11 information;>
13-12 <(7) a director of utility evaluation;>
13-13 <(8) a director of energy conservation; and>
13-14 <(9) a general counsel.>
13-15 <(e) The commission shall employ administrative law judges
13-16 to preside at hearings of major importance before the commission.
13-17 An administrative law judge must be a licensed attorney with not
13-18 less than five years' general experience or three years' experience
13-19 in utility regulatory law. The administrative law judge shall
13-20 perform his duties independently from the commission>.
13-21 SECTION 1.11. Section 1.029, Public Utility Regulatory Act
13-22 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
13-23 Regular Session, 1995, is amended to read as follows:
13-24 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
13-25 or the executive director's <his> designee shall develop an
13-26 intra-agency career ladder program that addresses opportunities for
13-27 mobility and advancement for employees of the commission. The
14-1 program shall require intra-agency posting of all positions
14-2 concurrently with<, one part of which shall be the intra-agency
14-3 posting of all nonentry level positions for at least 10 days
14-4 before> any public posting. The executive director or the
14-5 executive director's <his> designee shall develop a system of
14-6 annual performance evaluations that are based on documented
14-7 employee performance <measurable job tasks>. All merit pay for
14-8 commission employees must be based on the system established under
14-9 this section.
14-10 (b) The executive director or the executive director's
14-11 <his/her> designee shall prepare and maintain a written policy
14-12 statement <plan> to assure implementation of a program of equal
14-13 employment opportunity under which <whereby> all personnel
14-14 transactions are made without regard to race, color, disability,
14-15 sex, religion, age, or national origin. The policy statement must
14-16 <plan shall> include:
14-17 (1) personnel policies that comply with Chapter 21,
14-18 Labor Code, including policies relating to recruitment, evaluation,
14-19 selection, appointment, training, and promotion of personnel;
14-20 (2) a comprehensive analysis of the commission
14-21 workforce that meets federal and state guidelines;
14-22 (3) procedures by which a determination can be made
14-23 about the extent of underuse in the commission workforce of all
14-24 persons for whom federal or state guidelines encourage a more
14-25 equitable balance; and
14-26 (4) reasonable methods to appropriately address the
14-27 underuse. <a comprehensive analysis of all the agency's workforce
15-1 by race, sex, ethnic origin, class of position, and salary or wage;>
15-2 <(2) plans for recruitment, evaluation, selection,
15-3 appointment, training, promotion, and other personnel policies;>
15-4 <(3) steps reasonably designed to overcome any
15-5 identified underutilization of minorities and women in the agency's
15-6 workforce; and>
15-7 <(4) objectives and goals, timetables for the
15-8 achievement of the objectives and goals, and assignments of
15-9 responsibility for their achievement.>
15-10 (c) The policy statement <plan> required under Subsection
15-11 (b) of this section must <shall be filed with the governor's office
15-12 within 60 days of the effective date of this Act,> cover an annual
15-13 period, <and> be updated at least annually and reviewed by the
15-14 Commission on Human Rights for compliance with Subsection (b)(1) of
15-15 this section, and<. Progress reports shall> be filed with
15-16 <submitted to> the governor's office <within 30 days of November 1
15-17 and April 1 of each year and shall include the steps the agency has
15-18 taken within the reporting period to comply with these
15-19 requirements>.
15-20 (d) The governor's office shall deliver a biennial report to
15-21 the legislature based on the information received under Subsection
15-22 (c) of this section. The report may be made separately or as a
15-23 part of other biennial reports made to the legislature.
15-24 SECTION 1.12. Section 1.031, Public Utility Regulatory Act
15-25 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
15-26 Regular Session, 1995, is amended to read as follows:
15-27 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
16-1 the commission shall be located in the City of Austin, Texas, and
16-2 shall be open daily during the usual business hours, Saturdays,
16-3 Sundays, and legal holidays excepted. The commission shall hold
16-4 meetings at its office and at such other convenient places in the
16-5 state as shall be expedient and necessary for the proper
16-6 performance of its duties.
16-7 (b) The commission shall develop and implement policies that
16-8 provide the public with a reasonable opportunity to appear before
16-9 the commission and to speak on any issue under the jurisdiction of
16-10 the commission.
16-11 SECTION 1.13. Subsection (a), Section 1.035, Public Utility
16-12 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
16-13 74th Legislature, Regular Session, 1995, is amended to read as
16-14 follows:
16-15 (a) The commission shall prepare annually a complete and
16-16 detailed written report accounting for all funds received and
16-17 disbursed by the commission during the preceding fiscal year. The
16-18 annual report must meet the reporting requirements applicable to
16-19 financial reporting in the General Appropriations Act <publish an
16-20 annual report to the governor, summarizing its proceedings, listing
16-21 its receipts and the sources of its receipts, listing its
16-22 expenditures and the nature of such expenditures, and setting forth
16-23 such other information concerning the operations of the commission
16-24 and the public utility industry as it considers of general
16-25 interest>.
16-26 SECTION 1.14. Section 1.036, Public Utility Regulatory Act
16-27 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
17-1 Regular Session, 1995, is amended to read as follows:
17-2 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
17-3 commission shall prepare information of public <consumer> interest
17-4 describing the <regulatory> functions of the commission and
17-5 <describing> the commission's procedures by which <consumer>
17-6 complaints are filed with and resolved by the commission. The
17-7 commission shall make the information available to the <general>
17-8 public and appropriate state agencies.
17-9 (b) The commission by rule shall establish methods by which
17-10 consumers and service recipients are notified of the name, mailing
17-11 address, and telephone number of the commission for the purpose of
17-12 directing complaints to the commission.
17-13 (c) The commission shall comply with federal and state laws
17-14 related to program and facility accessibility. The commission
17-15 shall also prepare and maintain a written plan that describes how a
17-16 person who does not speak English can be provided reasonable access
17-17 to the commission's programs and services.
17-18 SECTION 1.15. Section 1.051, Public Utility Regulatory Act
17-19 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
17-20 Regular Session, 1995, is amended to read as follows:
17-21 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
17-22 independent Office of Public Utility Counsel represents the
17-23 interests of residential and small commercial consumers.
17-24 (b) The chief executive of the office <Office of Public
17-25 Utility Counsel> is the public utility counsel, hereinafter
17-26 referred to as counsellor. The counsellor is appointed by the
17-27 governor with the advice and consent of the senate to a two-year
18-1 term that expires on February 1 of the final year of the term.
18-2 Appointment of the counsellor shall be made without regard to the
18-3 race, color, disability, sex, religion, age, or national origin of
18-4 the appointee.
18-5 (c) The counsellor shall be a resident of Texas and admitted
18-6 to the practice of law in this state who has demonstrated a strong
18-7 commitment and involvement in efforts to safeguard the rights of
18-8 the public and possesses the knowledge and experience necessary to
18-9 practice effectively in utility proceedings.
18-10 (d) A person is not eligible for appointment as counsellor
18-11 if the person or the person's spouse:
18-12 (1) is employed by or participates in the management
18-13 of a business entity or other organization regulated by the
18-14 commission or receiving funds from the commission;
18-15 (2) owns or controls, directly or indirectly, more
18-16 than a 10 percent interest or a pecuniary interest with a value
18-17 exceeding $10,000 in:
18-18 (A) a business entity or other organization
18-19 regulated by the commission or receiving funds from the commission
18-20 or the office; or
18-21 (B) any utility competitor, utility supplier, or
18-22 other entity affected by a commission decision in a manner other
18-23 than by the setting of rates for that class of customer;
18-24 (3) uses or receives a substantial amount of tangible
18-25 goods, services, or funds from the commission or the office, other
18-26 than compensation or reimbursement authorized by law for counsellor
18-27 or commission membership, attendance, or expenses; or
19-1 (4) notwithstanding Subdivision (2) of this
19-2 subsection, has an interest in a mutual fund or retirement fund in
19-3 which more than 10 percent of the fund's holdings is in a single
19-4 utility, utility competitor, or utility supplier in this state and
19-5 the person does not disclose this information to the governor,
19-6 senate, or other entity, as appropriate.
19-7 (e) A person may not serve as counsellor if the person is
19-8 required to register as a lobbyist under Chapter 305, Government
19-9 Code, because of the person's activities for compensation related
19-10 to the operation of the commission or the office.
19-11 (f) An officer, employee, or paid consultant of a trade
19-12 association in the field of public utilities may not serve as
19-13 counsellor or be an employee of the office who is exempt from the
19-14 state's position classification plan or is compensated at or above
19-15 the amount prescribed by the General Appropriations Act for step 1,
19-16 salary group 17, of the position classification salary schedule. A
19-17 person who is the spouse of an officer, manager, or paid consultant
19-18 of a trade association in the field of public utilities may not
19-19 serve as counsellor and may not be an office employee who is exempt
19-20 from the state's position classification plan or is compensated at
19-21 or above the amount prescribed by the General Appropriations Act
19-22 for step 1, salary group 17, of the position classification salary
19-23 schedule.
19-24 (g) Notwithstanding any other provision of this Act, a
19-25 person otherwise ineligible because of the application of
19-26 Subsection (d)(2) of this section may be appointed as counsellor
19-27 and may serve as counsellor if the person:
20-1 (1) notifies the attorney general and commission that
20-2 the person is ineligible because of the application of Subsection
20-3 (d)(2) of this section; and
20-4 (2) divests the person or the person's spouse of the
20-5 ownership or control before appointment, or within a reasonable
20-6 time if the person is already serving at the time Subsection (d)(2)
20-7 of this section first applies to the person.
20-8 SECTION 1.16. Subtitle C, Title I, Public Utility Regulatory
20-9 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
20-10 Legislature, Regular Session, 1995, is amended by adding Section
20-11 1.0511 to read as follows:
20-12 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
20-13 removal from office if the counsellor:
20-14 (1) does not have at the time of appointment the
20-15 qualifications required by Section 1.051 of this Act;
20-16 (2) does not maintain during service as counsellor the
20-17 qualifications required by Section 1.051 of this Act;
20-18 (3) violates a prohibition established by Section
20-19 1.051 or 1.0512 of this Act; or
20-20 (4) cannot discharge the counsellor's duties for a
20-21 substantial part of the term for which the counsellor is appointed
20-22 because of illness or disability.
20-23 (b) The validity of an action of the office is not affected
20-24 by the fact that it is taken when a ground for removal of the
20-25 counsellor exists.
20-26 SECTION 1.17. Subtitle C, Title I, Public Utility Regulatory
20-27 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-1 Legislature, Regular Session, 1995, is amended by adding Section
21-2 1.0512 to read as follows:
21-3 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
21-4 (a) The counsellor may not within two years, and an employee of
21-5 the office may not, within one year after his employment with the
21-6 office has ceased, be employed by a public utility which was in the
21-7 scope of the counsellor's or employee's official responsibility
21-8 while the counsellor or employee was associated with the office.
21-9 (b) During the time the counsellor or an employee of the
21-10 office is associated with the office or at any time after, the
21-11 counsellor or employee may not represent a person, corporation, or
21-12 other business entity before the commission or a court in a matter
21-13 in which the counsellor or employee was personally involved while
21-14 associated with the office or a matter that was within the
21-15 counsellor's or employee's official responsibility while the
21-16 counsellor or employee was associated with the office.
21-17 SECTION 1.18. Subtitle C, Title I, Public Utility Regulatory
21-18 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-19 Legislature, Regular Session, 1995, is amended by adding Section
21-20 1.0513 to read as follows:
21-21 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
21-22 shall prepare annually a complete and detailed written report
21-23 accounting for all funds received and disbursed by the office
21-24 during the preceding fiscal year. The annual report must meet the
21-25 reporting requirements applicable to financial reporting provided
21-26 in the General Appropriations Act.
21-27 (b) The office shall prepare information of public interest
22-1 describing the functions of the office. The office shall make the
22-2 information available to the public and appropriate state agencies.
22-3 (c) The office shall comply with federal and state laws
22-4 related to program and facility accessibility. The office shall
22-5 also prepare and maintain a written plan that describes how a
22-6 person who does not speak English can be provided reasonable access
22-7 to the office's programs and services.
22-8 SECTION 1.19. Section 1.052, Public Utility Regulatory Act
22-9 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
22-10 Regular Session, 1995, is amended to read as follows:
22-11 Sec. 1.052. INTEREST PROHIBITED. During the period of the
22-12 counsellor's employment and for a period of two years following the
22-13 termination of employment, it shall be unlawful for any person
22-14 employed as counsellor to have a direct or indirect interest in any
22-15 utility company regulated under this Act, to provide legal services
22-16 directly or indirectly to or be employed in any capacity by a
22-17 utility company regulated under this Act, its parent, or its
22-18 subsidiary companies, corporations, or cooperatives or a utility
22-19 competitor, utility supplier, or other entity affected in a manner
22-20 other than by the setting of rates for that class of customer; but
22-21 such person may otherwise engage in the private practice of law
22-22 after the termination of employment as counsellor.
22-23 SECTION 1.20. Section 1.053, Public Utility Regulatory Act
22-24 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
22-25 Regular Session, 1995, is amended to read as follows:
22-26 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
22-27 lawyers, economists, engineers, consultants, statisticians,
23-1 accountants, clerical staff, and other employees as he or she deems
23-2 necessary to carry out the provisions of this section. All
23-3 employees shall receive such compensation as is fixed by the
23-4 legislature from the assessment imposed by Section 1.351 of this
23-5 Act.
23-6 (b) The counsellor or the counsellor's designee shall
23-7 develop an intra-agency career ladder program that addresses
23-8 opportunities for mobility and advancement for employees within the
23-9 office. The program shall require intra-agency postings of all
23-10 positions concurrently with any public posting. The counsellor or
23-11 the counsellor's designee shall develop a system of annual
23-12 performance evaluations that are based on documented employee
23-13 performance. All merit pay for office employees must be based on
23-14 the system established under this subsection.
23-15 (c) The counsellor or the counsellor's designee shall
23-16 prepare and maintain a written policy statement to assure
23-17 implementation of a program of equal employment opportunity under
23-18 which all personnel transactions are made without regard to race,
23-19 color, disability, sex, religion, age, or national origin. The
23-20 policy statement must include:
23-21 (1) personnel policies that comply with Chapter 21,
23-22 Labor Code, including policies relating to recruitment, evaluation,
23-23 selection, appointment, training, and promotion of personnel;
23-24 (2) a comprehensive analysis of the office workforce
23-25 that meets federal and state guidelines;
23-26 (3) procedures by which a determination can be made
23-27 about the extent of underuse in the office workforce of all persons
24-1 for whom federal or state guidelines encourage a more equitable
24-2 balance; and
24-3 (4) reasonable methods to appropriately address the
24-4 underuse.
24-5 (d) A policy statement prepared under Subsection (c) of this
24-6 section must cover an annual period, be updated at least annually
24-7 and reviewed by the Commission on Human Rights for compliance with
24-8 Subsection (c)(1) of this section, and be filed with the governor's
24-9 office. The governor's office shall deliver a biennial report to
24-10 the legislature based on the information received under this
24-11 subsection. The report may be made separately or as a part of
24-12 other biennial reports made to the legislature.
24-13 (e) The office shall provide to its employees, as often as
24-14 necessary, information regarding their qualification for office or
24-15 employment under this Act and their responsibilities under
24-16 applicable laws relating to standards of conduct for state officers
24-17 or employees.
24-18 SECTION 1.21. Section 1.101, Public Utility Regulatory Act
24-19 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
24-20 Regular Session, 1995, is amended to read as follows:
24-21 Sec. 1.101. GENERAL POWER; RULES; HEARINGS<; AUDITS>.
24-22 (a) The commission has the general power to regulate and supervise
24-23 the business of every public utility within its jurisdiction and to
24-24 do all things, whether specifically designated in this Act or
24-25 implied herein, necessary and convenient to the exercise of this
24-26 power and jurisdiction.
24-27 (b) The commission shall make and enforce rules reasonably
25-1 required in the exercise of its powers and jurisdiction, including
25-2 rules governing practice and procedure before the commission and,
25-3 as applicable, practice and procedure before the utility division
25-4 of the State Office of Administrative Hearings. The commission
25-5 shall adopt rules authorizing an administrative law judge to:
25-6 (1) limit the amount of time that a party may have to
25-7 present its case;
25-8 (2) limit the number of requests for information that
25-9 a party may make in a contested case;
25-10 (3) require a party to a contested case to identify
25-11 contested issues and facts before the hearing begins and to limit
25-12 cross-examination to only those issues and facts and to any new
25-13 issues that may arise as a result of the discovery process; and
25-14 (4) group parties, other than the office, that have
25-15 the same position on an issue to facilitate cross-examination on
25-16 that issue, provided that each party in a group is entitled to
25-17 present that party's witnesses for cross-examination during the
25-18 hearing.
25-19 (c) Rules adopted under Subsection (b) of this section must
25-20 ensure that all parties receive due process.
25-21 (d) The commission may call and hold hearings, administer
25-22 oaths, receive evidence at hearings, issue subpoenas to compel the
25-23 attendance of witnesses and the production of papers and documents,
25-24 and make findings of fact and decisions with respect to
25-25 administering the provisions of this Act or the rules, orders, or
25-26 other actions of the commission.
25-27 (e) Hearings in contested cases not conducted by one or more
26-1 commissioners shall be conducted by the utility division of the
26-2 State Office of Administrative Hearings. The <(d) Notwithstanding
26-3 any other provision of this Act or other law, in proceedings other
26-4 than those involving major rate changes, the> commission may
26-5 delegate to the utility division of the State Office of
26-6 Administrative Hearings <an administrative law judge or hearings
26-7 examiner> the authority to make a final decision and to issue
26-8 findings of fact, conclusions of law, and other necessary orders in
26-9 a proceeding in which there is no contested issue of fact or law.
26-10 The commission by rule shall define the procedures by which it
26-11 delegates final decision-making authority authorized by this
26-12 section. For review purposes the final decision of the
26-13 administrative law judge <or hearings examiner> has the same effect
26-14 as a final decision of the commission unless a commissioner
26-15 requests formal review of the decision.
26-16 SECTION 1.22. Subsection (b), Section 1.102, Public Utility
26-17 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
26-18 74th Legislature, Regular Session, 1995, is amended to read as
26-19 follows:
26-20 (b) The commission may audit each utility under the
26-21 jurisdiction of the commission as frequently as needed<, but shall
26-22 audit each utility at least once every 10 years>. Six months after
26-23 any audit, the utility shall report to the commission on the status
26-24 of the implementation of the recommendations of the audit and shall
26-25 file subsequent reports at such times as the commission deems
26-26 appropriate.
26-27 SECTION 1.23. Subtitle D, Title I, Public Utility Regulatory
27-1 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
27-2 Legislature, Regular Session, 1995, is amended by adding Section
27-3 1.104 to read as follows:
27-4 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
27-5 adopt procedures governing the use of settlements to resolve
27-6 contested cases.
27-7 (b) The rules shall ensure that:
27-8 (1) each party retains the right to:
27-9 (A) have a full hearing before the commission on
27-10 issues that remain in dispute; and
27-11 (B) judicial review of issues that remain in
27-12 dispute;
27-13 (2) an issue of fact raised by a nonsettling party
27-14 cannot be waived by a settlement or stipulation of the other
27-15 parties; and
27-16 (3) the nonsettling party may use the issue of fact
27-17 raised by that party as the basis for judicial review.
27-18 SECTION 1.24. Section 1.202, Public Utility Regulatory Act
27-19 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
27-20 Regular Session, 1995, is amended to read as follows:
27-21 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
27-22 have the power to:
27-23 (1) require that public utilities report to it such
27-24 information relating to themselves and to transactions between
27-25 themselves and affiliated interests both within and without the
27-26 State of Texas to the extent that those transactions are subject to
27-27 the jurisdiction of the commission <as it may consider useful in
28-1 the administration of this Act>;
28-2 (2) establish forms for all reports;
28-3 (3) determine the time for reports and the frequency
28-4 with which any reports are to be made;
28-5 (4) require that any reports be made under oath;
28-6 (5) require that a copy of any contract or arrangement
28-7 between any public utility and any affiliated interest be filed
28-8 with it. It may require any such contract or arrangement not in
28-9 writing to be reduced to writing and filed with it;
28-10 (6) require that a copy of any report filed with any
28-11 federal agency or any governmental agency or body of any other
28-12 state be filed with it; and
28-13 (7) require that a copy of annual reports showing all
28-14 payments of compensation (other than salary or wages subject to the
28-15 withholding of federal income tax) to residents of Texas, or with
28-16 respect to legal, administrative, or legislative matters in Texas,
28-17 or for representation before the Texas Legislature or any
28-18 governmental agency or body be filed with it.
28-19 (b) <The railroad commission shall have the power to review
28-20 and approve, for purposes of the Outer Continental Shelf Lands Act
28-21 Amendments of 1978 and any other federal authorities, applications
28-22 by gas utilities for the purchase of natural gas from producing
28-23 affiliates.>
28-24 <(c)> On the request of the governing body of any
28-25 municipality, the commission may provide sufficient staff members
28-26 to advise and consult with such municipality on any pending matter.
28-27 SECTION 1.25. Subsection (b), Section 1.251, Public Utility
29-1 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
29-2 74th Legislature, Regular Session, 1995, is amended to read as
29-3 follows:
29-4 (b) All transactions involving the sale of 50 percent or
29-5 more of the stock of a public utility shall also be reported to the
29-6 commission within a reasonable time. On the filing of a report
29-7 with the commission, the commission shall investigate the same with
29-8 or without public hearing to determine whether the action is
29-9 consistent with the public interest. In reaching its
29-10 determination, the commission shall take into consideration the
29-11 reasonable value of the property, facilities, or securities to be
29-12 acquired, disposed of, merged, transferred, or consolidated and
29-13 whether such a transaction will adversely affect the health or
29-14 safety of customers or employees, result in the transfer of jobs of
29-15 Texas citizens to workers domiciled outside the State of Texas, or
29-16 result in the decline of service, that the public utility will
29-17 receive consideration equal to the reasonable value of the assets
29-18 when it sells, leases, or transfers assets, and that the
29-19 transaction is consistent with the public interest.
29-20 SECTION 1.26. Section 1.271, Public Utility Regulatory Act
29-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
29-22 Regular Session, 1995, is amended to read as follows:
29-23 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
29-24 commission shall have jurisdiction over affiliated interests having
29-25 transactions with public utilities under the jurisdiction of the
29-26 commission to the extent of access to all accounts and records of
29-27 such affiliated interests relating to such transactions, including
30-1 but in no way limited to accounts and records of joint or general
30-2 expenses, any portion of which may be applicable to such
30-3 transactions. Any accounts or records obtained by the commission
30-4 related to sales of electrical energy at wholesale by an affiliated
30-5 interest to the public utility shall be confidential and not
30-6 subject to disclosure under Chapter 552, Government Code.
30-7 SECTION 1.27. Subtitle I, Title I, Public Utility Regulatory
30-8 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
30-9 Legislature, Regular Session, 1995, is amended by adding Section
30-10 1.3215 to read as follows:
30-11 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
30-12 may impose an administrative penalty against a person regulated
30-13 under this Act who violates this Act or a rule or order adopted
30-14 under this Act.
30-15 (b) The penalty for a violation may be in an amount not to
30-16 exceed $5,000. Each day a violation continues or occurs is a
30-17 separate violation for purposes of imposing a penalty.
30-18 (c) The amount of the penalty shall be based on:
30-19 (1) the seriousness of the violation, including the
30-20 nature, circumstances, extent, and gravity of any prohibited acts,
30-21 and the hazard or potential hazard created to the health, safety,
30-22 or economic welfare of the public;
30-23 (2) the economic harm to property or the environment
30-24 caused by the violation;
30-25 (3) the history of previous violations;
30-26 (4) the amount necessary to deter future violations;
30-27 (5) efforts to correct the violation; and
31-1 (6) any other matter that justice may require.
31-2 (d) If the executive director determines that a violation
31-3 has occurred, the executive director may issue to the commission a
31-4 report that states the facts on which the determination is based
31-5 and the director's recommendation on the imposition of a penalty,
31-6 including a recommendation on the amount of the penalty.
31-7 (e) Within 14 days after the date the report is issued, the
31-8 executive director shall give written notice of the report to the
31-9 person. The notice may be given by certified mail. The notice
31-10 must include a brief summary of the alleged violation and a
31-11 statement of the amount of the recommended penalty and must inform
31-12 the person that the person has a right to a hearing on the
31-13 occurrence of the violation, the amount of the penalty, or both the
31-14 occurrence of the violation and the amount of the penalty. Before
31-15 any penalty may be assessed under this section, the person against
31-16 whom the penalty may be assessed shall be given 30 days after
31-17 receiving from the executive director the notice of the report
31-18 summarizing the alleged violation pursuant to this subsection in
31-19 which to cure the violation and the person must fail to cure the
31-20 alleged violation within the 30-day period. The person against
31-21 whom the penalty may be assessed who claims to have cured the
31-22 alleged violation shall have the burden of proving to the
31-23 commission that the alleged violation was cured and was accidental
31-24 or inadvertent.
31-25 (f) Within 20 days after the date the person receives the
31-26 notice, the person in writing may accept the determination and
31-27 recommended penalty of the executive director or may make a written
32-1 request for a hearing on the occurrence of the violation, the
32-2 amount of the penalty, or both the occurrence of the violation and
32-3 the amount of the penalty.
32-4 (g) If the person accepts the determination and recommended
32-5 penalty of the executive director, the commission by order shall
32-6 approve the determination and impose the recommended penalty.
32-7 (h) If the person requests a hearing or fails to respond
32-8 timely to the notice, the executive director shall set a hearing
32-9 and give notice of the hearing to the person. The hearing shall be
32-10 held by an administrative law judge of the State Office of
32-11 Administrative Hearings. The administrative law judge shall make
32-12 findings of fact and conclusions of law and promptly issue to the
32-13 commission a proposal for a decision about the occurrence of the
32-14 violation and the amount of a proposed penalty. Based on the
32-15 findings of fact, conclusions of law, and proposal for a decision,
32-16 the commission by order may find that a violation has occurred and
32-17 impose a penalty or may find that no violation occurred.
32-18 (i) The notice of the commission's order given to the person
32-19 under Chapter 2001, Government Code, must include a statement of
32-20 the right of the person to judicial review of the order.
32-21 (j) Within 30 days after the date the commission's order is
32-22 final as provided by Section 2001.144, Government Code, the person
32-23 shall:
32-24 (1) pay the amount of the penalty;
32-25 (2) pay the amount of the penalty and file a petition
32-26 for judicial review contesting the occurrence of the violation, the
32-27 amount of the penalty, or both the occurrence of the violation and
33-1 the amount of the penalty; or
33-2 (3) without paying the amount of the penalty, file a
33-3 petition for judicial review contesting the occurrence of the
33-4 violation, the amount of the penalty, or both the occurrence of the
33-5 violation and the amount of the penalty.
33-6 (k) Within the 30-day period, a person who acts under
33-7 Subsection (j)(3) of this section may:
33-8 (1) stay enforcement of the penalty by:
33-9 (A) paying the amount of the penalty to the
33-10 court for placement in an escrow account; or
33-11 (B) giving to the court a supersedeas bond that
33-12 is approved by the court for the amount of the penalty and that is
33-13 effective until all judicial review of the commission's order is
33-14 final; or
33-15 (2) request the court to stay enforcement of the
33-16 penalty by:
33-17 (A) filing with the court a sworn affidavit of
33-18 the person stating that the person is financially unable to pay the
33-19 amount of the penalty and is financially unable to give the
33-20 supersedeas bond; and
33-21 (B) giving a copy of the affidavit to the
33-22 executive director by certified mail.
33-23 (l) The executive director, on receipt of a copy of an
33-24 affidavit under Subsection (k)(2) of this section, may file with
33-25 the court, within five days after the date the copy is received, a
33-26 contest to the affidavit. The court shall hold a hearing on the
33-27 facts alleged in the affidavit as soon as practicable and shall
34-1 stay the enforcement of the penalty on finding that the alleged
34-2 facts are true. The person who files an affidavit has the burden
34-3 of proving that the person is financially unable to pay the amount
34-4 of the penalty and to give a supersedeas bond.
34-5 (m) If the person does not pay the amount of the penalty and
34-6 the enforcement of the penalty is not stayed, the executive
34-7 director may refer the matter to the attorney general for
34-8 collection of the amount of the penalty.
34-9 (n) Judicial review of the order of the commission:
34-10 (1) is instituted by filing a petition as provided by
34-11 Subchapter G, Chapter 2001, Government Code; and
34-12 (2) is under the substantial evidence rule.
34-13 (o) If the court sustains the occurrence of the violation,
34-14 the court may uphold or reduce the amount of the penalty and order
34-15 the person to pay the full or reduced amount of the penalty. If
34-16 the court does not sustain the occurrence of the violation, the
34-17 court shall order that no penalty is owed.
34-18 (p) When the judgment of the court becomes final, the court
34-19 shall proceed under this subsection. If the person paid the amount
34-20 of the penalty and if that amount is reduced or is not upheld by
34-21 the court, the court shall order that the appropriate amount plus
34-22 accrued interest be remitted to the person. The rate of the
34-23 interest is the rate charged on loans to depository institutions by
34-24 the New York Federal Reserve Bank, and the interest shall be paid
34-25 for the period beginning on the date the penalty was paid and
34-26 ending on the date the penalty is remitted. If the person gave a
34-27 supersedeas bond and if the amount of the penalty is not upheld by
35-1 the court, the court shall order the release of the bond. If the
35-2 person gave a supersedeas bond and if the amount of the penalty is
35-3 reduced, the court shall order the release of the bond after the
35-4 person pays the amount.
35-5 (q) A penalty collected under this section shall be remitted
35-6 to the comptroller for deposit in the general revenue fund.
35-7 (r) All proceedings under this section are subject to
35-8 Chapter 2001, Government Code.
35-9 (s) The executive director may delegate to a person that the
35-10 executive director designates any power or duty given the executive
35-11 director by this section.
35-12 SECTION 1.28. Section 1.324, Public Utility Regulatory Act
35-13 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
35-14 Regular Session, 1995, is repealed.
35-15 SECTION 1.29. Subsection (b), Section 1.351, Public Utility
35-16 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
35-17 74th Legislature, Regular Session, 1995, is amended to read as
35-18 follows:
35-19 (b) The legislature may <commission shall, subject to the
35-20 approval of the legislature,> adjust this assessment to provide a
35-21 level of income sufficient to fund the commission and the office of
35-22 public utility counsel.
35-23 SECTION 1.30. Section 1.354, Public Utility Regulatory Act
35-24 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
35-25 Regular Session, 1995, is amended to read as follows:
35-26 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
35-27 FUND. (a) All fees, penalties, and interest paid under the
36-1 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
36-2 shall be collected by the comptroller of public accounts and paid
36-3 into the general revenue fund. <The commission shall notify the
36-4 comptroller of public accounts of any adjustment of the assessment
36-5 imposed in Section 1.351 when made.>
36-6 (b) All money paid to the commission or to the office under
36-7 this Act is subject to Subchapter F, Chapter 404, Government Code.
36-8 SECTION 1.31. Section 1.355, Public Utility Regulatory Act
36-9 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
36-10 Regular Session, 1995, is amended to read as follows:
36-11 Sec. 1.355. GRANTS OF FEDERAL FUNDS. (a) The commission
36-12 may apply to any appropriate agency or officer of the United States
36-13 to receive and spend federal funds which it may obtain from grants
36-14 or other similar forms of financial assistance. Nothing in this
36-15 section shall inhibit the commission's ability to contract with or
36-16 otherwise receive assistance from any state, local, or other
36-17 authorized source of funds.
36-18 (b) Sections 403.094 and 403.095, Government Code, do not
36-19 apply to the special account established under this section.
36-20 <APPROVAL OF BUDGET. The budget of the commission shall be subject
36-21 to legislative approval as part of the appropriations act.>
36-22 SECTION 1.32. Subtitle J, Title I, Public Utility Regulatory
36-23 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
36-24 Legislature, Regular Session, 1995, is amended by adding Section
36-25 1.357 to read as follows:
36-26 Sec. 1.357. APPROVAL OF BUDGET. The budget of the
36-27 commission shall be subject to legislative approval as part of the
37-1 General Appropriations Act.
37-2 SECTION 1.33. Subsections (a) and (b), Section 1.401, Public
37-3 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
37-4 the 74th Legislature, Regular Session, 1995, are amended to read as
37-5 follows:
37-6 (a) Any affected person may complain to the regulatory
37-7 authority in writing setting forth any act or thing done or omitted
37-8 to be done by any public utility in violation or claimed violation
37-9 of any law which the regulatory authority has jurisdiction to
37-10 administer or of any order, ordinance, rule, or regulation of the
37-11 regulatory authority. The commission shall keep <an> information
37-12 <file> about each complaint filed with the commission <relating to
37-13 a utility>. The commission shall retain the information <file> for
37-14 a reasonable period. The information shall include:
37-15 (1) the date the complaint is received;
37-16 (2) the name of the complainant;
37-17 (3) the subject matter of the complaint;
37-18 (4) a record of all persons contacted in relation to
37-19 the complaint;
37-20 (5) a summary of the results of the review or
37-21 investigation of the complaint; and
37-22 (6) for complaints for which the commission took no
37-23 action, an explanation of the reason the complaint was closed
37-24 without action.
37-25 (b) The commission shall keep a file about each <If a>
37-26 written complaint <is> filed with the commission that the
37-27 commission has authority to resolve. The commission shall provide
38-1 to the person filing the complaint and to the persons or entities
38-2 complained about the commission's policies and procedures
38-3 pertaining to complaint investigation and resolution. The
38-4 <relating to a utility, the> commission, at least <as frequently
38-5 as> quarterly and until final disposition of the complaint, shall
38-6 notify the person filing <parties to> the complaint and each person
38-7 or entity complained about of the status of the complaint unless
38-8 the notice would jeopardize an undercover investigation.
38-9 SECTION 1.34. Subchapter C, Chapter 2003, Government Code,
38-10 is amended by adding Section 2003.047 to read as follows:
38-11 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
38-12 establish a utility division to perform the contested case hearings
38-13 for the Public Utility Commission of Texas as prescribed by the
38-14 Public Utility Regulatory Act of 1995 and other applicable law.
38-15 (b) The utility division shall conduct hearings relating to
38-16 contested cases before the commission, other than a hearing
38-17 conducted by one or more commissioners. The commission by rule may
38-18 delegate the responsibility to hear any other matter before the
38-19 commission if consistent with the duties and responsibilities of
38-20 the division.
38-21 (c) Only an administrative law judge in the utility division
38-22 may conduct a hearing on behalf of the commission. An
38-23 administrative law judge in the utility division may conduct
38-24 hearings for other state agencies as time allows. The office may
38-25 transfer an administrative law judge into the division on a
38-26 temporary or permanent basis and may contract with qualified
38-27 individuals to serve as temporary administrative law judges as
39-1 necessary.
39-2 (d) To be eligible to preside at a hearing, an
39-3 administrative law judge, regardless of temporary or permanent
39-4 status, must be licensed to practice law in this state and have not
39-5 less than five years of general experience or three years of
39-6 experience in utility regulatory law.
39-7 (e) At the time the office receives jurisdiction of a
39-8 proceeding, the commission shall provide to the administrative law
39-9 judge a list of issues or areas that must be addressed. In
39-10 addition, the commission may identify and provide to the
39-11 administrative law judge at any time additional issues or areas
39-12 that must be addressed.
39-13 (f) The office and the commission shall jointly adopt rules
39-14 providing for certification to the commission of an issue that
39-15 involves an ultimate finding of compliance with or satisfaction of
39-16 a statutory standard the determination of which is committed to the
39-17 discretion or judgment of the commission by law. The rules must
39-18 address, at a minimum, the issues that are appropriate for
39-19 certification and the procedure to be used in certifying the issue.
39-20 Each agency shall publish the jointly adopted rules.
39-21 (g) Notwithstanding Section 2001.058, the commission may
39-22 change a finding of fact or conclusion of law made by the
39-23 administrative law judge or vacate or modify an order issued by the
39-24 administrative law judge only if the commission:
39-25 (1) determines that the administrative law judge:
39-26 (A) did not properly apply or interpret
39-27 applicable law, commission rules or policies, or prior
40-1 administrative decisions; or
40-2 (B) issued a finding of fact that is not
40-3 supported by a preponderance of the evidence; or
40-4 (2) determines that a commission policy or a prior
40-5 administrative decision on which the administrative law judge
40-6 relied is incorrect or should be changed.
40-7 (h) The commission shall state in writing the specific
40-8 reason and legal basis for its determination under Subsection (g).
40-9 (i) An administrative law judge, on the judge's own motion
40-10 or on motion of a party and after notice and an opportunity for a
40-11 hearing, may impose appropriate sanctions as provided by Subsection
40-12 (j) against a party or its representative for:
40-13 (1) filing a motion or pleading that is groundless and
40-14 brought:
40-15 (A) in bad faith;
40-16 (B) for the purpose of harassment; or
40-17 (C) for any other improper purpose, such as to
40-18 cause unnecessary delay or needless increase in the cost of the
40-19 proceeding;
40-20 (2) abuse of the discovery process in seeking, making,
40-21 or resisting discovery; or
40-22 (3) failure to obey an order of the administrative law
40-23 judge or the commission.
40-24 (j) A sanction imposed under Subsection (i) may include, as
40-25 appropriate and justified, issuance of an order:
40-26 (1) disallowing further discovery of any kind or of a
40-27 particular kind by the offending party;
41-1 (2) charging all or any part of the expenses of
41-2 discovery against the offending party or its representative;
41-3 (3) holding that designated facts be deemed admitted
41-4 for purposes of the proceeding;
41-5 (4) refusing to allow the offending party to support
41-6 or oppose a designated claim or defense or prohibiting the party
41-7 from introducing designated matters in evidence;
41-8 (5) disallowing in whole or in part requests for
41-9 relief by the offending party and excluding evidence in support of
41-10 such requests;
41-11 (6) punishing the offending party or its
41-12 representative for contempt to the same extent as a district court;
41-13 (7) requiring the offending party or its
41-14 representative to pay, at the time ordered by the administrative
41-15 law judge, the reasonable expenses, including attorney's fees,
41-16 incurred by other parties because of the sanctionable behavior; and
41-17 (8) striking pleadings or testimony, or both, in whole
41-18 or in part, or staying further proceedings until the order is
41-19 obeyed.
41-20 (k) Hearings conducted for the commission by the office
41-21 shall be held in hearing rooms provided by the commission. The
41-22 commission shall also provide the utility division access to its
41-23 computer systems, databases, and library resources.
41-24 (l) The office shall charge the commission a fixed annual
41-25 fee rather than an hourly rate for services rendered by the utility
41-26 division to the commission. The office and the commission shall
41-27 negotiate the amount of the fixed fee biennially, subject to the
42-1 approval of the governor, to coincide with the commission's
42-2 legislative appropriations request.
42-3 SECTION 1.35. (a) A task force is established to administer
42-4 the transfer of the hearings division from the Public Utility
42-5 Commission of Texas to the State Office of Administrative Hearings.
42-6 The task force is composed of:
42-7 (1) the governor or the governor's designee;
42-8 (2) the Legislative Budget Board or the board's
42-9 designee;
42-10 (3) the chairman of the Public Utility Commission of
42-11 Texas;
42-12 (4) the public utility counsel; and
42-13 (5) the chief administrative law judge of the State
42-14 Office of Administrative Hearings.
42-15 (b) The governor or the governor's designee is the presiding
42-16 officer of the task force.
42-17 (c) The task force shall:
42-18 (1) determine the personnel, equipment, data,
42-19 facilities, and other items that will be transferred under this Act
42-20 and the schedule for the transfers; and
42-21 (2) mediate and resolve disputes between the
42-22 respective agencies relating to a transfer.
42-23 (d) After the transfers have been completed, the task force
42-24 shall prepare a written report detailing the specifics of the
42-25 transfers and shall submit the report to the governor and the
42-26 legislature.
42-27 (e) In determining a transfer under this Act, the task force
43-1 shall ensure that the transfer does not adversely affect a
43-2 proceeding before the Public Utility Commission of Texas or the
43-3 rights of the parties to the proceeding.
43-4 (f) This section takes effect immediately.
43-5 SECTION 1.36. (a) On September 1, 1995, all personnel,
43-6 including hearings examiners and administrative law judges,
43-7 equipment, data, facilities, and other items of the hearings
43-8 division of the Public Utility Commission of Texas, other than the
43-9 personnel, equipment, data, facilities, and other items of the
43-10 central records office, are transferred to the utility division of
43-11 the State Office of Administrative Hearings. Until September 1,
43-12 1996, an employee transferred to the utility division may be
43-13 terminated or subject to salary reduction only for cause and only
43-14 in relation to poor performance or unacceptable conduct. A
43-15 hearings examiner transferred to the State Office of Administrative
43-16 Hearings becomes an administrative law judge on the date of
43-17 transfer.
43-18 (b) A hearings examiner or administrative law judge
43-19 transferred from the Public Utility Commission of Texas to the
43-20 State Office of Administrative Hearings shall continue to hear any
43-21 case assigned to the person as if the transfer had not occurred.
43-22 (c) The changes in law made by this Act that relate to the
43-23 procedures governing a hearing before the utility division of the
43-24 State Office of Administrative Hearings apply only to a case that
43-25 is filed on or after September 1, 1995. In addition, the
43-26 procedures prescribed by the provisions amended by this Act shall
43-27 continue to be used in a hearing as those provisions existed on
44-1 August 31, 1995. The former law is continued in effect for those
44-2 purposes.
44-3 (d) The Public Utility Commission of Texas is not required
44-4 by this Act or amendments made by this Act to adopt new rules
44-5 governing practice and procedure before the Public Utility
44-6 Commission of Texas or the utility division of the State Office of
44-7 Administrative Hearings. The rules in effect on the effective date
44-8 of this Act remain in effect until amended or repealed as required
44-9 by law. Any rules adopted after the effective date of this Act
44-10 governing practice and procedure before the utility division of the
44-11 State Office of Administrative Hearings must be adopted jointly by
44-12 that office and the commission.
44-13 SECTION 1.37. Section 1.3215, Public Utility Regulatory Act
44-14 of 1995, as added by this Act, applies only to a violation
44-15 committed on or after the effective date of this Act. A violation
44-16 committed before the effective date of this Act is governed by the
44-17 law in effect when the violation occurred, and that law is
44-18 continued in effect for that purpose.
44-19 SECTION 1.38. Section 1.104, Public Utility Regulatory Act
44-20 of 1995, as added by this Act, applies only to a proceeding for
44-21 which a final order has not been issued before the effective date
44-22 of this Act and does not apply to an electric utility merger
44-23 proceeding filed before January 1, 1995, in which a final order has
44-24 not been issued. Except as otherwise provided by this section, on
44-25 or after the effective date of this Act, the Public Utility
44-26 Commission of Texas may not approve a settlement unless the
44-27 settlement has been reached in accordance with rules adopted under
45-1 Section 1.104, Public Utility Regulatory Act of 1995, as added by
45-2 this Act.
45-3 SECTION 1.39. The changes in law made by this Act relating
45-4 to the requirements for membership on the Public Utility Commission
45-5 of Texas, to the requirements for service as public utility
45-6 counsel, or to employment as executive director or general counsel
45-7 of the commission apply only to a person appointed or hired, as
45-8 appropriate, on or after the effective date of this Act and do not
45-9 affect the entitlement of a member serving on the commission on
45-10 August 31, 1995, to continue to hold office for the remainder of
45-11 the term for which the person was appointed or the ability of a
45-12 person serving as public utility counsel, executive director, or
45-13 general counsel on August 31, 1995, to continue to hold that
45-14 position.
45-15 ARTICLE 2
45-16 SECTION 2.01. Subtitle A, Title II, Public Utility
45-17 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
45-18 74th Legislature, Regular Session, 1995, is amended by amending
45-19 Section 2.001 and adding Sections 2.0011 and 2.0012 to read as
45-20 follows:
45-21 Sec. 2.001. LEGISLATIVE POLICY CONCERNING REGULATION OF THE
45-22 ELECTRIC UTILITY INDUSTRY. (a) This title is enacted to protect
45-23 the public interest inherent in the rates and services of public
45-24 utilities. The legislature finds that public utilities are by
45-25 definition monopolies in many of the services they provide and in
45-26 many of the areas they serve, and that therefore the normal forces
45-27 of competition that operate to regulate prices in a free enterprise
46-1 society do not always operate, and that therefore, except as
46-2 otherwise provided for in this Act, utility rates, operations, and
46-3 services are regulated by public agencies. The purpose of this
46-4 title is to establish a comprehensive regulatory system that is
46-5 adequate to the task of regulating public utilities as defined in
46-6 this title, to assure rates, operations, and services that are just
46-7 and reasonable to consumers and to the utilities. The legislature
46-8 finds that the wholesale electric industry through federal
46-9 legislative, judicial, and administrative actions is becoming a
46-10 more competitive industry which does not lend itself to traditional
46-11 electric utility regulatory rules, policies, and principles and
46-12 that, therefore, the public interest requires that new rules,
46-13 policies, and principles be formulated and applied to protect the
46-14 public interest in a more competitive marketplace. The development
46-15 of a competitive wholesale electric market that allows for
46-16 increased participation by both utilities and certain nonutilities
46-17 is in the public interest.
46-18 (b) On application by a public utility, the regulatory
46-19 authority may approve wholesale tariffs or contracts containing
46-20 charges that are less than rates approved by the regulatory
46-21 authority but equal to or greater than the utility's marginal cost.
46-22 The charges must be in accordance with the principles of this Act
46-23 and may not be unreasonably preferential, prejudicial,
46-24 discriminatory, predatory, or anticompetitive.
46-25 (c) The methodology for calculating the marginal cost of the
46-26 electric utility shall consist of energy and capacity components.
46-27 The energy component shall include variable operation and
47-1 maintenance expense and marginal fuel or the energy component of
47-2 purchased power. The capacity component included shall be based on
47-3 the annual economic value of deferring, accelerating, or avoiding
47-4 the next increment of any needed capacity, whether such capacity is
47-5 purchased or built. The commission shall ensure that the
47-6 methodology for determining marginal cost is consistently applied
47-7 among utilities but may recognize in any case the individual load
47-8 and resource requirements of the utility.
47-9 (d) Notwithstanding any other provision of this Act, the
47-10 commission shall ensure that the utility's allocable costs of
47-11 serving customers paying discounted rates under this section or
47-12 Section 2.052 are not borne by the utility's other customers. The
47-13 mark-ups, if any, approved pursuant to Sections 2.051 and 2.1511
47-14 are an exceptional form of rate relief which may be recovered from
47-15 ratepayers only on entry of a finding by the commission that such
47-16 relief is necessary to maintain the financial integrity of the
47-17 utility.
47-18 Sec. 2.0011. DEFINITIONS. In this title:
47-19 (1) "Public<, "public> utility" or "utility" means any
47-20 person, corporation, river authority, cooperative corporation, or
47-21 any combination thereof, other than a municipal corporation, or
47-22 their lessees, trustees, and receivers, now or hereafter owning or
47-23 operating for compensation in this state equipment or facilities
47-24 for producing, generating, transmitting, distributing, selling, or
47-25 furnishing electricity in this state (hereinafter "electric
47-26 utility"); provided, however, that this definition may not be
47-27 construed to apply to or include a qualifying facility <small power
48-1 producer or qualifying cogenerator, as defined in Sections 3(17)(D)
48-2 and 3(18)(C) of the Federal Power Act, as amended (16 U.S.C.
48-3 Sections 796(17)(D) and 796(18)(C))>. The term does not include an
48-4 exempt wholesale generator, a power marketer, or a corporation as
48-5 prescribed by Section 2.0012 of this Act, or any person or
48-6 corporation not otherwise a public utility that:
48-7 (A) <(1)> furnishes the services or commodity
48-8 described in this section only to itself, its employees, or its
48-9 tenants as an incident of such employee service or tenancy, when
48-10 such service or commodity is not resold to or used by others;
48-11 (B) <(2)> owns or operates in this state
48-12 equipment or facilities for producing, generating, transmitting,
48-13 distributing, selling, or furnishing electric energy to an electric
48-14 utility, if the equipment or facilities are used primarily for the
48-15 production and generation of electric energy for consumption by the
48-16 person or corporation; or
48-17 (C) <(3)> owns or operates in this state a
48-18 recreational vehicle park that provides metered electric service in
48-19 accordance with Article 1446d-2, Revised Statutes, provided that a
48-20 recreational vehicle park owner is considered a public utility if
48-21 the owner fails to comply with Article 1446d-2, Revised Statutes,
48-22 with regard to the metered sale of electricity at the recreational
48-23 vehicle park.
48-24 (2) "Exempt wholesale generator" means a person that
48-25 is engaged directly, or indirectly through one or more affiliates,
48-26 exclusively in the business of owning, operating, or both owning
48-27 and operating all or part of one or more facilities for the
49-1 generation of electric energy and selling electric energy at
49-2 wholesale and that:
49-3 (A) does not own facilities for the transmission
49-4 of electricity, other than essential interconnecting transmission
49-5 facilities necessary to effect a sale of electric energy at
49-6 wholesale; and
49-7 (B) has applied to the Federal Energy Regulatory
49-8 Commission for a determination under Section 32, Public Utility
49-9 Holding Company Act (15 U.S.C. Section 79z-5a), or has registered
49-10 as an exempt wholesale generator as required by this Act.
49-11 (3) "Power marketer" means a person that:
49-12 (A) becomes owner of electric energy in this
49-13 state for the purpose of buying and selling the electric energy at
49-14 wholesale;
49-15 (B) does not own generation, transmission, or
49-16 distribution facilities in this state;
49-17 (C) does not have a certificated service area;
49-18 and
49-19 (D) has been granted authority by the Federal
49-20 Energy Regulatory Commission to sell electric energy at
49-21 market-based rates or has registered as a power marketer under this
49-22 Act.
49-23 (4) "Qualifying cogenerator" and "qualifying small
49-24 power producer" have the meanings assigned by Sections 3(18)(C) and
49-25 3(17)(D), Federal Power Act (16 U.S.C. Sections 796(18)(C) and
49-26 796(17)(D)).
49-27 (5) "Qualifying facility" means a qualifying
50-1 cogenerator or qualifying small power producer.
50-2 (6) "Rate" means and includes every compensation,
50-3 tariff, charge, fare, toll, rental, and classification, or any of
50-4 them demanded, observed, charged, or collected whether directly or
50-5 indirectly by any public utility for any service, product, or
50-6 commodity described in the definition of "utility" in Section 2.001
50-7 or 3.001 of this Act and any rules, regulations, practices, or
50-8 contracts affecting any such compensation, tariff, charge, fare,
50-9 toll, rental, or classification that must be approved by a
50-10 regulatory authority.
50-11 (7) "Transmission service" includes construction or
50-12 enlargement of facilities, transmission over distribution
50-13 facilities, control area services, scheduling resources, regulation
50-14 service, providing operating reserves, reactive power support,
50-15 voltage control, and any other associated electrical services
50-16 deemed appropriate by the commission.
50-17 Sec. 2.0012. CERTAIN RIVER AUTHORITIES. (a)
50-18 Notwithstanding any other provision of this Act to the contrary,
50-19 the commission shall not have the authority to regulate directly or
50-20 indirectly the revenue requirements, rates, fuel costs, fuel
50-21 charges, or fuel acquisitions that are related to the generation
50-22 and sale of electricity at wholesale and not to ultimate consumers
50-23 by a river authority operating one or more steam generating plants.
50-24 Subject to the provisions of this section, the term "public
50-25 utility," "retail public utility," or "utility" shall not include a
50-26 corporation authorized by Chapter 245, Acts of the 67th
50-27 Legislature, Regular Session, 1981 (Article 717p, Vernon's Texas
51-1 Civil Statutes), and acting on behalf of the river authority to the
51-2 extent that the corporation sells electricity exclusively at
51-3 wholesale and not to ultimate consumers.
51-4 (b) This section shall constitute full authority for any
51-5 river authority operating one or more steam generating plants to
51-6 acquire, finance, construct, rebuild, repower, and use new and
51-7 existing power plants, equipment, transmission lines, and other
51-8 assets, for the sale of electricity exclusively at wholesale and
51-9 not at retail to any purchaser within San Saba, Llano, Burnet,
51-10 Travis, Bastrop, Blanco, Colorado, and Fayette counties and any
51-11 purchaser within the area served by the river authority on
51-12 January 1, 1975.
51-13 (c) This section shall constitute full authority for a
51-14 corporation described in Subsection (a) of this section to acquire,
51-15 finance, construct, rebuild, repower, operate, or sell facilities
51-16 directly related to the generation of electricity and sell the
51-17 output of such facilities, to the extent that such corporation
51-18 sells such electricity to any purchaser at any location in this
51-19 state exclusively at wholesale, and not to ultimate consumers,
51-20 notwithstanding any provisions to the contrary in the river
51-21 authority's enabling legislation or Chapter 245, Acts of the 67th
51-22 Legislature, Regular Session, 1981 (Article 717p, Vernon's Texas
51-23 Civil Statutes), provided that nothing in this section shall
51-24 preclude the corporation from purchasing transmission and related
51-25 services from such river authority. Except as provided in this
51-26 section, the development, financing, ownership, and operation of
51-27 such facilities by such corporation shall be subject to the
52-1 provisions of all applicable laws other than this Act, and the
52-2 property, gross receipts, and income of such corporation acting on
52-3 behalf of a river authority pursuant to this section shall be
52-4 subject to, and such corporation shall pay, taxes and assessments
52-5 of the federal government or of this state or of any municipal
52-6 corporation, county, or other political subdivision or taxing
52-7 district of this state on the same basis as an exempt wholesale
52-8 generator. No proceeds from the sale of bonds or other
52-9 obligations, the interest on which is exempt from taxation, issued
52-10 by the corporation or river authority, other than as may be
52-11 available to investor-owned utilities or exempt wholesale
52-12 generators, shall be used, or shall have been used, to finance the
52-13 construction or acquisition of or rebuilding or repowering of any
52-14 facilities for the generation of electricity by the corporation.
52-15 (d) This section shall not authorize the river authority to
52-16 acquire, install, construct, make additions to, or operate steam
52-17 generating plants whose aggregate capacity is greater than 5,000
52-18 megawatts to serve purchasers within the area served by the river
52-19 authority on January 1, 1975. In addition, any river authority
52-20 subject to this section and any corporation acting on behalf of
52-21 such river authority may provide retail service only to those
52-22 retail customers served by the river authority or corporation
52-23 acting on behalf of the river authority on September 1, 1995.
52-24 (e) Nothing in this section shall otherwise limit the powers
52-25 granted a river authority in its enabling legislation and other
52-26 applicable law.
52-27 SECTION 2.02. Subtitle A, Title II, Public Utility
53-1 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
53-2 74th Legislature, Regular Session, 1995, is amended by adding
53-3 Section 2.003 to read as follows:
53-4 Sec. 2.003. SCOPE OF COMPETITION. Before January 15 of each
53-5 odd-numbered year, the commission shall report to the legislature
53-6 on the scope of competition in electric markets and the impact of
53-7 competition and industry restructuring on customers in both
53-8 competitive and noncompetitive markets. The report shall include
53-9 an assessment of the impact of competition on the rates and
53-10 availability of electric services for residential and small
53-11 commercial customers and a summary of commission actions over the
53-12 preceding two years that reflect changes in the scope of
53-13 competition in regulated electric markets. The report shall also
53-14 include recommendations to the legislature for further legislation
53-15 that the commission finds appropriate to promote the public
53-16 interest in the context of a partially competitive electric market.
53-17 SECTION 2.03. Section 2.051, Public Utility Regulatory Act
53-18 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
53-19 Regular Session, 1995, is amended to read as follows:
53-20 Sec. 2.051. INTEGRATED RESOURCE PLANNING. (a) The
53-21 commission by rule shall develop an integrated resource planning
53-22 process to provide reliable energy service at the lowest reasonable
53-23 system cost. In determining the lowest reasonable system cost of
53-24 an electric utility's plan, the commission shall consider in
53-25 addition to direct costs the following:
53-26 (1) the effect on the rates and bills of various types
53-27 of customers;
54-1 (2) minimization of the risks of future fuel costs and
54-2 regulations;
54-3 (3) the appropriateness and reliability of the mix of
54-4 resources; and
54-5 (4) the costs of compliance with the environmental
54-6 protection requirements of all applicable state and federal laws,
54-7 rules, and orders.
54-8 (b) The commission by rule shall adopt and periodically
54-9 update a statewide integrated resource plan that includes the
54-10 commission's long-term resource planning goals. The commission
54-11 shall send a report on the plan to the governor when it adopts or
54-12 revises the plan and notify each public utility of the approval of
54-13 the statewide plan. The commission shall make the report available
54-14 to the public.
54-15 (c) The report on the statewide plan shall include:
54-16 (1) historical data for electric consumption statewide
54-17 and by utility;
54-18 (2) historical data for electric generation by utility
54-19 and by type of capacity, including alternative energy sources;
54-20 (3) an inventory of generation capacity statewide and
54-21 by utility;
54-22 (4) quantitative data on demand-side management
54-23 programs to the extent the commission determines necessary;
54-24 (5) each generating utility's forecast without
54-25 adjustment;
54-26 (6) the commission's long-term resource planning goals
54-27 included in the plan;
55-1 (7) a projection of the need for electric services;
55-2 (8) a description of the approved individual
55-3 integrated resource plans of public utilities; and
55-4 (9) an assessment of transmission planning being
55-5 performed by utilities within this state.
55-6 (d) In prescribing the requirements under this section,
55-7 including reporting requirements, the commission shall consider and
55-8 recognize the differences in capabilities of small and large
55-9 utilities.
55-10 (e) Generating public utilities as well as non-generating
55-11 public utilities planning to construct generating resources shall
55-12 submit to the commission a preliminary integrated resource plan.
55-13 Preliminary integrated resource plans shall be submitted every
55-14 three years and cover a 10-year period. The commission by rule:
55-15 (1) shall:
55-16 (A) prescribe a staggered schedule for the
55-17 submission of plans by utilities;
55-18 (B) prescribe the form and manner in which a
55-19 plan must be submitted;
55-20 (C) adopt filing requirements and schedules; and
55-21 (D) prescribe the methods by which a utility may
55-22 recover supply-side and demand-side costs; and
55-23 (2) may:
55-24 (A) define the scope and nature of public
55-25 participation in the development of the plan; and
55-26 (B) establish the general guidelines to be used
55-27 by utilities in evaluating and selecting or rejecting resources,
56-1 including procedures governing the solicitation process.
56-2 (f) A preliminary plan submitted under this section must
56-3 include:
56-4 (1) the utility's forecast of future demands;
56-5 (2) an estimate of the energy savings and demand
56-6 reduction the utility can achieve during the 10-year period by use
56-7 of demand-side management resources and the range of possible costs
56-8 for those resources;
56-9 (3) if additional supply-side resources are needed to
56-10 meet future demand, an estimate of:
56-11 (A) the amount and operational characteristics
56-12 of the additional capacity needed;
56-13 (B) the types of viable supply-side resources
56-14 for meeting that need; and
56-15 (C) the range of probable costs of those
56-16 resources;
56-17 (4) if necessary, proposed requests for proposals for
56-18 demand-side or supply-side resources, or both;
56-19 (5) the specific criteria the utility will use to
56-20 evaluate and select or reject those resources, which criteria may
56-21 deviate from the general guidelines on a showing of good cause;
56-22 (6) the methods by which the utility intends to
56-23 monitor those resources after selection;
56-24 (7) the method by which the utility intends to
56-25 allocate costs;
56-26 (8) a description of how each utility will achieve
56-27 equity among customer classes and provide demand-side programs to
57-1 each customer class including tenants and low income ratepayers;
57-2 (9) any proposed incentive factors; and
57-3 (10) any other information the commission requires.
57-4 (g) Every three years, a municipally owned utility shall
57-5 submit to the commission a report containing all of the information
57-6 required in a preliminary integrated resource plan under Subsection
57-7 (f) of this section, but shall not otherwise be subject to the
57-8 requirements of this section.
57-9 (h) If the utility's preliminary plan does not include a
57-10 proposed solicitation under Subsection (f)(4) of this section, the
57-11 plan shall be filed with the commission so that the commission may
57-12 compile the report required in Subsection (c) of this section.
57-13 Only if the utility's preliminary plan includes a proposed
57-14 solicitation under Subsection (f)(4) of this section may the
57-15 commission, on its own motion or on the motion of the utility or of
57-16 an affected person, convene a public hearing on the adequacy and
57-17 merits of the preliminary plan. At the hearing, any interested
57-18 person may intervene, present evidence, and cross-examine witnesses
57-19 regarding the contents and adequacy of the preliminary plan.
57-20 Discovery is limited to an issue relating to the development of the
57-21 preliminary plan, a fact issue included in the preliminary plan,
57-22 and other issues the commission is required to decide relating to
57-23 the preliminary plan. A commission hearing is not required for a
57-24 preliminary plan filed by a river authority or generating electric
57-25 cooperative that does not intend to build a new generating plant or
57-26 for a preliminary plan filed by a municipally owned public utility.
57-27 (i) After the hearing, the commission shall determine:
58-1 (1) whether the utility's preliminary plan is based on
58-2 substantially accurate data and an adequate method of forecasting;
58-3 (2) whether the utility's preliminary plan identifies
58-4 and takes into account any present and projected reductions in the
58-5 demand for energy that may result from cost-effective measures to
58-6 improve conservation and energy efficiency in various customer
58-7 classes of the area being served;
58-8 (3) if additional supply-side resources are needed to
58-9 meet future demand, whether the utility's preliminary plan
58-10 adequately demonstrates:
58-11 (A) the amount and operational characteristics
58-12 of the additional capacity needed;
58-13 (B) the types of viable supply-side resources
58-14 for meeting that need; and
58-15 (C) the range of probable costs of those
58-16 resources;
58-17 (4) whether the utility's preliminary plan
58-18 demonstrates the opportunities for appropriate persons to
58-19 participate in the development of the preliminary plan;
58-20 (5) whether the specific criteria the utility will use
58-21 to evaluate and select or reject resources are reasonable and
58-22 consistent with the guidelines of the integrated resource planning
58-23 process;
58-24 (6) whether the cost allocation method proposed by the
58-25 utility is reasonable;
58-26 (7) how the utility will achieve equity among customer
58-27 classes and provide demand-side programs to each customer class,
59-1 including tenants and low income ratepayers; and
59-2 (8) whether any incentive factors are appropriate and,
59-3 if so, the levels of such incentive factors.
59-4 (j) Not later than the 180th day after the date the utility
59-5 files the preliminary plan, the commission shall issue an interim
59-6 order on the preliminary plan. The commission shall approve the
59-7 preliminary plan, modify the preliminary plan, or, if necessary,
59-8 remand the preliminary plan for additional proceedings. The
59-9 180-day period may be extended for a period not to exceed 30 days
59-10 for extenuating circumstances encountered in the development and
59-11 processing of an initial plan, if the extenuating circumstances are
59-12 fully explained and agreed on by the commissioners.
59-13 (k) On approval of the preliminary plan, the utility shall
59-14 conduct solicitations for demand-side and supply-side resources, as
59-15 prescribed in the preliminary plan. In addition to soliciting
59-16 resources from unaffiliated third parties, the utility may:
59-17 (1) prepare and submit a bid of a new utility
59-18 demand-side management program as prescribed by Subsection (m) of
59-19 this section;
59-20 (2) receive bids from one or more affiliates; and
59-21 (3) request a certificate of convenience and necessity
59-22 for a new rate-based generating plant.
59-23 (l) Each bidder, including the utility and its affiliates,
59-24 shall submit two copies of its bid to the commission. The
59-25 commission shall ensure that the utility has access to all bids at
59-26 the same time. The commission shall keep a copy of each bid
59-27 submitted by the utility or an affiliate to determine whether the
60-1 utility complied with the criteria established for conduct of the
60-2 solicitation. A bid submitted under this subsection or retained
60-3 under this subsection is confidential and is not subject to
60-4 disclosure under Chapter 552, Government Code.
60-5 (m) If a utility wants to use a proposed demand-side
60-6 management program to meet a need identified in the preliminary
60-7 plan, the utility must prepare a bid reflecting that resource. A
60-8 bid prepared by the utility under this subsection must comply with
60-9 the solicitation, evaluation, selection, and rejection criteria
60-10 specified in the preliminary plan. The utility may not give
60-11 preferential treatment or consideration to a bid prepared under
60-12 this subsection.
60-13 (n) The utility shall evaluate each bid submitted, including
60-14 an affiliate bid, in accordance with the criteria specified in the
60-15 preliminary plan and shall negotiate necessary contracts. The
60-16 utility is not required to accept a bid and may reject any or all
60-17 bids in accordance with the selection and rejection criteria
60-18 specified in the preliminary plan. If the results of the
60-19 solicitations and contract negotiations do not meet the supply-side
60-20 needs identified in the preliminary plan, the utility may apply for
60-21 a certificate of convenience and necessity for a utility-owned
60-22 resource addition notwithstanding the fact a solicitation was
60-23 conducted and the addition was not included in the approved
60-24 preliminary plan.
60-25 (o) After conducting the solicitations and negotiating the
60-26 contracts, the utility shall submit to the commission a proposed
60-27 final integrated resource plan. The proposed final plan must
61-1 include:
61-2 (1) the results of the solicitations;
61-3 (2) the contracts for resources;
61-4 (3) the terms and conditions under which the utility
61-5 will provide resources to meet a need identified in the preliminary
61-6 plan, if the utility accepts a bid submitted under Subsection (m)
61-7 of this section; and
61-8 (4) an application for a certificate of convenience
61-9 and necessity, if necessary.
61-10 (p) The commission shall, on request by any affected person
61-11 and within 90 days after the date a utility files its final
61-12 integrated resource plan under this section, convene a public
61-13 hearing on the reasonableness and cost-effectiveness of the
61-14 proposed final plan. At the hearing, any interested person may
61-15 intervene, present evidence, and cross-examine witnesses regarding
61-16 the reasonableness and cost-effectiveness of the proposed final
61-17 plan. Parties will not be allowed to litigate or conduct discovery
61-18 on issues that were litigated or could have been litigated in
61-19 connection with the filing of the utility's preliminary plan. To
61-20 the extent permitted by federal law, the commission may issue a
61-21 written order for access to the books, accounts, memoranda,
61-22 contracts, or records of any exempt wholesale generator or power
61-23 marketer selling energy at wholesale to a utility, if the
61-24 examination is required for the effective discharge of the
61-25 commission's regulatory responsibilities under this Act, except
61-26 that if the commission issues such an order, the books, accounts,
61-27 memoranda, contracts, and records obtained by the commission are
62-1 confidential and not subject to disclosure under Chapter 552,
62-2 Government Code.
62-3 (q) After the hearing, the commission shall determine
62-4 whether:
62-5 (1) the utility's proposed final plan was developed in
62-6 accordance with the preliminary plan and commission rules;
62-7 (2) the resource solicitations, evaluations,
62-8 selections, and rejections were conducted in accordance with the
62-9 criteria included in the preliminary plan;
62-10 (3) the utility's proposed final plan is
62-11 cost-effective;
62-12 (4) the final plan is equitable among customer classes
62-13 and provides demand-side programs to each customer class, including
62-14 tenants and low income ratepayers;
62-15 (5) the commission should certify the contracts and
62-16 any utility bid submitted under Subsection (m) of this section that
62-17 resulted from the solicitations; and
62-18 (6) the commission should grant a requested
62-19 certificate of convenience and necessity for a utility-owned
62-20 resource addition.
62-21 (r)(1) In determining whether to certify a supply-side or
62-22 demand-side contract that results from the solicitations, the
62-23 commission shall consider the reliability, financial condition, and
62-24 safety of that resource contract and whether the solicitation,
62-25 evaluation, and selection of that resource contract was conducted
62-26 in accordance with the criteria included in the preliminary plan.
62-27 The commission shall not certify contracts for new purchases of
63-1 power by a utility unless the utility has determined, after giving
63-2 consideration to consistently applied regional or national
63-3 reliability standards, guidelines, or criteria, that the contract
63-4 would not unreasonably impair the continued reliability of electric
63-5 systems affected by the purchase, and the purchase can reasonably
63-6 be expected to produce benefits to customers of the purchasing
63-7 utility. Commission certification of a resource contract does not
63-8 negate the necessity of the resource to comply with all applicable
63-9 environmental and siting regulations. In addition, if the contract
63-10 is with a utility affiliate, the commission shall determine whether
63-11 the utility treated and considered the affiliate's bid in the same
63-12 manner it treated and considered other bids intended to meet the
63-13 same resource needs and shall further determine, in connection with
63-14 such purchase, whether:
63-15 (A) the transaction will benefit consumers;
63-16 (B) the transaction violates any state law,
63-17 including least cost planning;
63-18 (C) the transaction provides the utility
63-19 affiliate any unfair competitive advantage by virtue of its
63-20 affiliation or association with the utility;
63-21 (D) the transaction is in the public interest;
63-22 and
63-23 (E) the commission has sufficient regulatory
63-24 authority, resources, and access to the books and records of the
63-25 utility and its affiliate to make these determinations.
63-26 (2) In setting a public utility's rates for a period
63-27 during which a certified contract is effective, the regulatory
64-1 authority shall consider payments made under the contract to be
64-2 reasonable and necessary operating expenses of the public utility.
64-3 The regulatory authority may provide for monthly recovery of the
64-4 approved costs of the contract as those costs are incurred,
64-5 including the allowed mark-up determined by the commission.
64-6 (s) In determining whether to grant a requested certificate
64-7 of convenience and necessity, the commission shall consider the
64-8 effect of the granting of a certificate on the recipient of the
64-9 certificate and on any public utility of the same kind already
64-10 serving the proximate area. The commission shall also consider
64-11 other factors such as community values, recreational and park
64-12 areas, historical and aesthetic values, environmental integrity,
64-13 and the probable improvement of service or lowering of cost to
64-14 consumers in that area if the certificate is granted. The
64-15 commission shall grant the certificate as part of the approval of
64-16 the final plan if it finds that:
64-17 (1) the proposed addition is necessary under the final
64-18 plan;
64-19 (2) the proposed addition is the best and most
64-20 economical choice of technology for that service area; and
64-21 (3) cost-effective conservation and other
64-22 cost-effective alternative energy sources cannot reasonably meet
64-23 the need.
64-24 (t) Not later than the 180th day after the date the utility
64-25 files the proposed final plan, the commission shall issue a final
64-26 order on the plan. The commission shall approve the proposed final
64-27 plan, modify the proposed final plan, or, if necessary, remand the
65-1 proposed final plan for additional proceedings.
65-2 (u) The commission shall adopt rules allowing a utility to
65-3 add, consistent with the utility's last approved integrated
65-4 resource planning goals, new or incremental resources outside the
65-5 solicitation process, including resources listed in Subsection (x)
65-6 of this section.
65-7 (v) In addition to its other authority and responsibility
65-8 under this section, the commission shall establish rules and
65-9 guidelines that will promote the development of renewable energy
65-10 technologies consistent with the guidelines of the integrated
65-11 resource planning process.
65-12 (w) In carrying out its duties related to the integrated
65-13 resource planning process, the commission may:
65-14 (1) allow timely recovery of reasonable costs of
65-15 conservation, load management, and purchased power, notwithstanding
65-16 Section 2.212(g)(1) of this Act;
65-17 (2) authorize additional incentives for conservation,
65-18 load management, purchased power, and renewable resources; and
65-19 (3) review the state's transmission system to
65-20 determine and make recommendations to public utilities on the need
65-21 to build new power lines, upgrade power lines, and make other
65-22 improvements and additions as necessary.
65-23 (x) Consistent with the utility's last approved integrated
65-24 resource planning goals, if any, the utility, including a
65-25 nongenerating utility, may add new or incremental resources outside
65-26 the solicitation process such as:
65-27 (1) contract renegotiation for existing capacity from
66-1 an electric cooperative or nonaffiliated power generating
66-2 facilities;
66-3 (2) electric cooperative or nonaffiliated demand-side
66-4 management programs or renewable resources;
66-5 (3) capacity purchases with terms of two years or less
66-6 from an electric cooperative or nonaffiliated power suppliers or
66-7 capacity purchases necessary to satisfy unanticipated emergency
66-8 conditions;
66-9 (4) the exercise of an option in a purchased power
66-10 contract with an electric cooperative or nonaffiliated supplier;
66-11 and
66-12 (5) renewable distributed resources, located at or
66-13 near the point of consumption, if they are less costly than
66-14 transmission extensions or upgrades.
66-15 (y) The addition of new or incremental resources by a
66-16 utility under Subsection (x) of this section does not require an
66-17 amendment to the utility's integrated resource plan.
66-18 (z)(1) If a qualifying facility submits a bid under this
66-19 section, regardless of whether that bid is accepted or rejected,
66-20 and only with respect to the capacity need for which the bid has
66-21 been submitted, the submission of the bid:
66-22 (A) constitutes a waiver by the qualifying
66-23 facility of any rights it may otherwise have under law to sell
66-24 capacity to the utility;
66-25 (B) represents the qualifying facility's
66-26 agreement to negotiate a rate for purchase of capacity and terms
66-27 and conditions relating to any purchase of capacity by the utility
67-1 that differ from the rate or terms and conditions that would
67-2 otherwise be required by 18 CFR Chapter I, Subchapter K, Part 292,
67-3 Subpart C; and
67-4 (C) constitutes a waiver by the qualifying
67-5 facility of its right to the rate, terms, or conditions for
67-6 purchases of capacity by the utility that might otherwise be
67-7 required by that subpart.
67-8 (2) For the purpose of determining a utility's avoided
67-9 capacity costs under 18 CFR Chapter I, Subchapter K, Part 292,
67-10 Subpart C, on submitting a preliminary integrated resource plan to
67-11 the commission under Section 2.051 of this Act, the utility's
67-12 avoided capacity costs shall be deemed to be $0 and shall remain
67-13 $0, with respect to any capacity needs shown in such preliminary
67-14 integrated resource plan or final integrated resource plan that are
67-15 to be satisfied by resources approved in the utility's final
67-16 integrated resource plan.
67-17 (3) Nothing in this subsection shall affect the
67-18 validity of any contract entered into between a qualifying facility
67-19 and an electric utility for any purchase.
67-20 (aa) In this section, "utility" includes a river authority
67-21 subject to Section 2.0012 of this Act with respect to the area
67-22 served by the river authority on January 1, 1975.
67-23 (bb) Nongenerating utilities not planning to construct
67-24 generating resources are not required to submit an integrated
67-25 resource plan to the commission. If such a utility seeks to
67-26 purchase more than 25 percent of its peak demand or more than 70
67-27 megawatts from a wholesale power supplier other than its existing
68-1 power supplier, the utility shall conduct a solicitation for
68-2 resources. However, no solicitation is required for purchases from
68-3 an existing power supplier, and new or incremental resources may be
68-4 added outside the solicitation process as provided in Subsection
68-5 (x) of this section. If requested by such a utility, the
68-6 commission may review the reasonableness of any contract for
68-7 resources resulting from the solicitation. On a finding by the
68-8 commission that such a contract is reasonable, the commission shall
68-9 certify the contract. The commission shall make its determination
68-10 within 90 days after the date the proposed contract is submitted.
68-11 Nothing in this subsection is intended to alter or amend existing
68-12 wholesale power supply contracts.
68-13 (cc) To the extent that the commission authorizes utilities
68-14 to recover costs of demand-side management programs, conservation,
68-15 load management, or purchased power through various cost recovery
68-16 factors, the commission shall make a final reconciliation of the
68-17 costs recovered through those cost recovery factors. The
68-18 commission shall adopt rules regarding when the reconciliations
68-19 will occur for each of the cost recovery factors, what type of
68-20 information utilities need to file in support of the
68-21 reconciliation, and other matters necessary to perform the
68-22 reconciliation. The reconciliation shall (1) review the
68-23 reasonableness of the utility's administration of the contracts and
68-24 programs whose costs are being reconciled and (2) reconcile the
68-25 revenue collected under each cost recovery factor and the costs
68-26 that the utility incurred on purchased power, demand-side
68-27 management, conservation, or load management during the
69-1 reconciliation period.
69-2 (dd) To provide for the orderly transition to an integrated
69-3 resource planning process and to avoid delays in the construction
69-4 of resources necessary to provide electric service, an integrated
69-5 resource plan shall not be required prior to the issuance of a
69-6 certificate of convenience and necessity for the construction of
69-7 generating facilities if:
69-8 (1) the commission has approved the utility's notice
69-9 of intent prior to the effective date of this section;
69-10 (2) the utility has conducted a solicitation for
69-11 resources to meet the need identified in the utility's notice of
69-12 intent in accordance with commission rules then in effect; and
69-13 (3) the utility has submitted to the commission the
69-14 results of the solicitation and an application for certification of
69-15 facilities to meet the need identified in the utility's notice of
69-16 intent. A certificate of convenience and necessity shall be
69-17 granted by the commission if the facilities are needed to meet
69-18 future demand, the facilities are the best and most economical
69-19 choice of technology for the service area, and cost-effective
69-20 conservation and cost-effective alternative energy sources cannot
69-21 reasonably meet the need.
69-22 (ee) To the extent that the public utility is required by
69-23 the commission to reimburse a municipality for expenses the
69-24 municipality incurred for its participation in a proceeding under
69-25 this section, the commission shall, as part of its determination
69-26 approving the public utility's integrated resource plan, authorize
69-27 a surcharge to be included in the public utility's rates to recover
70-1 the municipality's expenses for participating in the integrated
70-2 resource plan proceeding before the public utility's next
70-3 preliminary integrated resource plan is filed. <ELECTRICAL
70-4 FORECAST. (a) The commission shall develop a long-term statewide
70-5 electrical energy forecast which shall be sent to the governor
70-6 biennially. The forecast will include an assessment of how
70-7 alternative energy sources, conservation, and load management will
70-8 meet the state's electricity needs.>
70-9 <(b) Every generating electric utility in the state shall
70-10 prepare and transmit to the commission every two years a report
70-11 specifying at least a 10-year forecast for assessments of load and
70-12 resources for its service area. The report shall include a list of
70-13 facilities which will be required to supply electric power during
70-14 the forecast periods. The report shall be in a form prescribed by
70-15 the commission. The report shall include:>
70-16 <(1) a tabulation of estimated peak load, resources,
70-17 and reserve margins for each year during the forecast or assessment
70-18 period;>
70-19 <(2) a list of existing electric generating plants in
70-20 service with a description of planned and potential generating
70-21 capacity at existing sites;>
70-22 <(3) a list of facilities which will be needed to
70-23 serve additional electrical requirements identified in the
70-24 forecasts or assessments, the general location of such facilities,
70-25 and the anticipated types of fuel to be utilized in the proposed
70-26 facilities, including an estimation of shutdown costs and disposal
70-27 of spent fuel for nuclear power plants;>
71-1 <(4) a description of additional system capacity which
71-2 might be achieved through, among other things, improvements in:>
71-3 <(A) generating or transmission efficiency;>
71-4 <(B) importation of power;>
71-5 <(C) interstate or interregional pooling;>
71-6 <(D) other improvements in efficiencies of
71-7 operation; and>
71-8 <(E) conservation measures;>
71-9 <(5) an estimation of the mix and type of fuel
71-10 resources for the forecast or assessment period;>
71-11 <(6) an annual load duration curve and a forecast of
71-12 anticipated peak loads for the forecast or assessment period for
71-13 the residential, commercial, industrial, and such other major
71-14 demand sectors in the service area of the electric utility as the
71-15 commission shall determine; and>
71-16 <(7) a description of projected population growth,
71-17 urban development, industrial expansion, and other growth factors
71-18 influencing increased demand for electric energy and the basis for
71-19 such projections.>
71-20 <(c) The commission shall establish and every electric
71-21 utility shall utilize a reporting methodology for preparation of
71-22 the forecasts of future load and resources.>
71-23 <(d) The commission shall review and evaluate the electric
71-24 utilities' forecast of load and resources and any public comment on
71-25 population growth estimates prepared by the Bureau of Business
71-26 Research, The University of Texas at Austin.>
71-27 <(e) Within 12 months after the receipt of the reports
72-1 required by this section, the commission shall hold a public
72-2 hearing and subsequently issue a final report to the governor and
72-3 notify every electric utility of the commission's electric forecast
72-4 for that utility. The commission shall consider its electric
72-5 forecast in all certification proceedings covering new generation
72-6 plants.>
72-7 SECTION 2.04. Section 2.052, Public Utility Regulatory Act
72-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
72-9 Regular Session, 1995, is amended to read as follows:
72-10 Sec. 2.052. ENCOURAGEMENT OF ECONOMICAL PRODUCTION.
72-11 (a) The commission shall make and enforce rules to encourage the
72-12 economical production of electric energy by qualifying cogenerators
72-13 and qualifying small power producers.
72-14 (b) On application by a public utility, the regulatory
72-15 authority may approve retail tariffs or contracts containing
72-16 charges that are less than rates approved by the regulatory
72-17 authority but equal to or greater than the utility's marginal cost.
72-18 The charges must be in accordance with the principles of this Act
72-19 and may not be unreasonably preferential, prejudicial,
72-20 discriminatory, predatory, or anticompetitive.
72-21 (c) The methodology for calculating the marginal cost of the
72-22 electric utility shall consist of energy and capacity components.
72-23 The energy component shall include variable operation and
72-24 maintenance expense and marginal fuel or the energy component of
72-25 purchased power. The capacity component included shall be based on
72-26 the annual economic value of deferring, accelerating, or avoiding
72-27 the next increment of any needed capacity, whether such capacity is
73-1 purchased or built. The commission shall ensure that the
73-2 methodology for determining marginal cost is consistently applied
73-3 among utilities but may recognize in any case the individual load
73-4 and resource requirements of the utility.
73-5 SECTION 2.05. Subtitle B, Title II, Public Utility
73-6 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
73-7 74th Legislature, Regular Session, 1995, is amended by adding
73-8 Section 2.053 to read as follows:
73-9 Sec. 2.053. EXEMPT WHOLESALE GENERATORS AND POWER MARKETERS.
73-10 (a) An exempt wholesale generator or power marketer may sell
73-11 electric energy only at wholesale.
73-12 (b) The commission has the following jurisdiction over
73-13 exempt wholesale generators and power marketers that sell electric
73-14 energy in this state:
73-15 (1) to require registration as provided by Subsection
73-16 (c) of this section; and
73-17 (2) to require the filing of reports the commission
73-18 prescribes by rule.
73-19 (c) Each exempt wholesale generator and power marketer
73-20 shall, within 30 days after the date it becomes subject to this
73-21 section, register with the commission or provide proof that it has
73-22 registered with the Federal Energy Regulatory Commission or been
73-23 authorized by the Federal Energy Regulatory Commission to sell
73-24 electric energy at market-based rates. Registration may be
73-25 accomplished by filing with the commission a description of the
73-26 location of any facility used to provide service, the type of
73-27 service provided, a copy of any information filed with the Federal
74-1 Energy Regulatory Commission in connection with registration with
74-2 that commission, and other information the commission prescribes by
74-3 rule.
74-4 SECTION 2.06. Subtitle B, Title II, Public Utility
74-5 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
74-6 74th Legislature, Regular Session, 1995, is amended by adding
74-7 Section 2.054 to read as follows:
74-8 Sec. 2.054. EXEMPT WHOLESALE GENERATOR AND POWER MARKETER
74-9 AFFILIATES. (a) An affiliate of a public utility may be an exempt
74-10 wholesale generator or power marketer and may sell electric energy
74-11 to its affiliated public utility in accordance with Section 2.051
74-12 of this Act and other provisions of law governing wholesale sales
74-13 of electric energy.
74-14 (b) If a rate or charge for or in connection with the
74-15 construction of a facility, or for electric energy produced by the
74-16 construction of a facility, or for electric energy produced by a
74-17 facility other than any portion of a rate or charge which
74-18 represents recovery of the cost of a wholesale rate or charge was
74-19 in effect as of the date of enactment of this section, the facility
74-20 shall not be sold or transferred to an affiliate, or otherwise
74-21 considered an eligible facility as defined by federal law, provided
74-22 that the commission may, after notice and hearing, allow such
74-23 facility to be sold or transferred to an affiliate, or become an
74-24 eligible facility only if such sale or transfer will benefit
74-25 ratepayers of the utility making the sale or transfer, is in the
74-26 public interest, and otherwise complies with state law.
74-27 (c) Any transfer of assets from a utility to an affiliated
75-1 exempt wholesale generator or power marketer shall be valued at the
75-2 greater of net book cost or fair market value. Any transfer of
75-3 assets from an exempt wholesale generator or power marketer to an
75-4 affiliated public utility shall be valued at the lesser of net book
75-5 cost or fair market value. At the time the transfer is approved,
75-6 the commission shall order the utility to adjust its rates so that
75-7 its tariffs reflect benefits from the proceeds of the sale and
75-8 exclude any costs associated with the transferred facility.
75-9 SECTION 2.07. Subtitle B, Title II, Public Utility
75-10 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
75-11 74th Legislature, Regular Session, 1995, is amended by adding
75-12 Section 2.056 to read as follows:
75-13 Sec. 2.056. TRANSMISSION SERVICE. (a) The commission may
75-14 require a utility, including a municipally owned utility, to
75-15 provide transmission service at wholesale to another utility, a
75-16 qualifying facility, an exempt wholesale generator, or a power
75-17 marketer and may determine whether the terms and conditions for the
75-18 transmission service are reasonable. The commission may require
75-19 transmission service at wholesale, including construction or
75-20 enlargement of facilities, in a proceeding not related to approval
75-21 of an integrated resource plan. The commission may not issue a
75-22 decision or rule relating to transmission service that is contrary
75-23 to an applicable decision, rule, or policy statement of a federal
75-24 regulatory agency having jurisdiction.
75-25 (b) The commission, with the advice and consent of the
75-26 governor, shall appoint a five-person interstate connection
75-27 committee to investigate the most economical, reliable, and
76-1 efficient means to synchronously interconnect the alternating
76-2 current electric facilities of the electric facilities of electric
76-3 utilities within the Electric Reliability Council of Texas
76-4 reliability area to the alternating current electric facilities of
76-5 the electric facilities of electric utilities within the Southwest
76-6 Power Pool reliability area. The committee shall report an
76-7 estimate of the cost and benefit to effect the interconnection, an
76-8 estimate of the time to construct the interconnecting facilities,
76-9 and the service territory of the utilities in which those
76-10 facilities will be located. The committee shall submit its report
76-11 to the legislature by September 1, 1997, at which time the
76-12 committee shall be dissolved.
76-13 SECTION 2.08. Subtitle B, Title II, Public Utility
76-14 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
76-15 74th Legislature, Regular Session, 1995, is amended by adding
76-16 Section 2.057 to read as follows:
76-17 Sec. 2.057. WHOLESALE COMPETITION. (a) A public utility
76-18 that owns or operates transmission facilities shall provide
76-19 wholesale transmission service at rates, terms of access, and
76-20 conditions that are comparable to the rates, terms of access, and
76-21 conditions of the utility's use of its system. The commission
76-22 shall ensure that utilities provide nondiscriminatory access to
76-23 transmission service for qualifying facilities, exempt wholesale
76-24 generators, power marketers, and public utilities. The commission
76-25 shall adopt rules within 180 days of the effective date of this
76-26 section relating to wholesale transmission service, rates, and
76-27 access. The rules shall be consistent with the standards in this
77-1 section, shall not be contrary to federal law, including any
77-2 applicable policy statement, decision, or rule of a federal
77-3 regulatory agency, having jurisdiction and shall require
77-4 transmission services that are not less than the transmission
77-5 services the Federal Energy Regulatory Commission may require in
77-6 similar circumstances. The rules shall also provide that all
77-7 ancillary services associated with a utility's discounted wholesale
77-8 sales shall be provided by the utility at the same prices and under
77-9 the same terms and conditions as such services are provided to
77-10 third persons, and all ancillary services provided by the utility
77-11 and associated with its discounted wholesale sales also be provided
77-12 to third persons upon request. All public utilities that own or
77-13 operate transmission facilities shall file tariffs implementing
77-14 such rules within 60 days after the commission has adopted
77-15 transmission pricing and access rules pursuant to this section
77-16 unless the terms and conditions for access and pricing are included
77-17 in the tariff of another utility. Such tariffs shall be filed with
77-18 the appropriate state or federal regulatory agency having
77-19 jurisdiction over the transmission service of the entity filing the
77-20 tariff.
77-21 (b) The commission shall adopt rules relating to the
77-22 registration and reporting requirements of qualifying facilities,
77-23 exempt wholesale generators, and power marketers.
77-24 (c) To the extent a utility provides transmission of
77-25 electric energy at the request of a third party, the commission
77-26 shall ensure that the costs of the transmission are not borne by
77-27 the utility's other customers by requiring the utility to recover
78-1 from the entity for which the transmission is provided all
78-2 reasonable costs incurred by the utility in providing transmission
78-3 services necessary for the transaction.
78-4 (d) For the purposes of administering these rules, the
78-5 commission may require that parties to a dispute over the prices,
78-6 terms, and conditions of wholesale transmission service engage in a
78-7 nonbinding alternative dispute resolution process before seeking a
78-8 resolution of a dispute from the commission.
78-9 (e) The commission shall submit a report to the 75th
78-10 Legislature on methods or procedures for quantifying the magnitude
78-11 of stranded investment, procedures for allocating costs, and the
78-12 acceptable methods of recovering stranded costs.
78-13 (f) Affiliates of public utilities, exempt wholesale
78-14 generators, qualifying facilities, and all other providers of
78-15 generation may compete for the business of selling power. In
78-16 accordance with the applicable provisions of this Act, a public
78-17 utility may purchase power from an affiliate. A public utility may
78-18 not grant undue preference to any person in connection with the
78-19 utility's purchase or sale of electric energy at wholesale or other
78-20 utility services.
78-21 (g) Notwithstanding any other provision in this Act, the
78-22 commission shall entertain proposals for, and from such proposals
78-23 adopt, one pilot program to require public utilities, on order of
78-24 the commission, to provide transmission service for transactions
78-25 between end users of electricity and qualifying facilities, exempt
78-26 wholesale generators, power marketers, or public utilities. The
78-27 transmission service shall be for the purpose of permitting end
79-1 users of electricity to acquire new capacity and energy resources,
79-2 and to replace existing electricity purchases, through direct
79-3 purchases from qualifying facilities, exempt wholesale generators,
79-4 power marketers, or public utilities. The commission shall
79-5 ensure, to the maximum extent feasible, that all classes of
79-6 customers, including residential, commercial, and other customer
79-7 classes, are provided a full opportunity to participate in the
79-8 pilot program. The pilot program shall be designed to prevent the
79-9 shifting of capacity costs that are currently paid by program
79-10 participants to other ratepayers of the transmitting utility and
79-11 shall ensure that program participants make their appropriate
79-12 capacity contribution to utility revenues, as determined by the
79-13 commission. Notwithstanding any other provision of this Act, the
79-14 commission may authorize a qualifying facility, exempt wholesale
79-15 generator, power marketer, or public utility to participate in this
79-16 pilot program. The pilot program shall remain in effect for an
79-17 initial period of six years from the date the commission issues a
79-18 final order initiating the program. Not later than January 15,
79-19 2001, the commission shall evaluate the program and report to the
79-20 legislature on its results. During the pilot project under this
79-21 subsection, the regulatory authority may not require a public
79-22 utility to wheel or transmit electricity over that public utility's
79-23 facilities from another entity to an ultimate consumer of
79-24 electricity in the utility's certificated service area, including
79-25 wheeling or transmitting electricity to another location of that
79-26 other entity, if the entity is an ultimate consumer of electricity.
79-27 This subsection expires January 15, 2001.
80-1 (h) For the purposes of this section, the term "public
80-2 utility" shall include municipally owned utilities.
80-3 SECTION 2.09. Section 2.105, Public Utility Regulatory Act
80-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
80-5 Regular Session, 1995, is amended by adding Subsection (c) to read
80-6 as follows:
80-7 (c) Not later than the 31st day before the date a utility
80-8 files a statement of intent under Section 2.212(a) of this Act, the
80-9 utility shall provide to each municipality having original
80-10 jurisdiction notice of intent to file the statement. Not later
80-11 than the 30th day after the date a municipality receives notice of
80-12 intent to file a statement, the municipality may request that the
80-13 utility file with the municipality a statement of intent in
80-14 accordance with Section 2.212(a) of this Act. If requested, the
80-15 utility shall file the statement of intent with the municipality at
80-16 the same time the statement is filed with the commission.
80-17 SECTION 2.10. Subsection (g), Section 2.108, Public Utility
80-18 Regulatory Act of 1995, as enacted by S.B. 319, Acts of the 74th
80-19 Legislature, Regular Session, 1995, is amended to read as follows:
80-20 (g) The commission shall hear such appeal de novo based on
80-21 the test year presented to the municipality and by its final order
80-22 shall fix such rates as the municipality should have fixed in the
80-23 ordinance from which the appeal was taken. In the event that the
80-24 commission fails to enter its final order: (1) for proceedings
80-25 involving the rates of a municipally owned utility, within 185 days
80-26 from the date on which the appeal is perfected or on which the
80-27 utility files a rate application as prescribed by Subsection (c) of
81-1 this section; or (2) for proceedings in which similar relief has
81-2 also been concurrently sought from the commission under its
81-3 original jurisdiction, within 120 days from the date such appeal is
81-4 perfected or the date upon which final action must be taken in the
81-5 similar proceedings so filed with the commission whichever shall
81-6 last occur; or (3) in all other proceedings, within 185 days from
81-7 the date such appeal is perfected, the schedule of rates proposed
81-8 by the utility shall be deemed to have been approved by the
81-9 commission and effective upon the expiration of said applicable
81-10 period. Any rates, whether temporary or permanent, set by the
81-11 commission shall be prospective and observed from and after the
81-12 applicable order of the commission, except interim rate orders
81-13 necessary to effect uniform system-wide rates or to provide the
81-14 utility the opportunity to avoid confiscation during the period
81-15 beginning on the date of filing of a petition for review with the
81-16 commission and ending on the date of a final order setting rates.
81-17 The commission shall order interim rates on a prima facie showing
81-18 by the utility that it has experienced confiscation during that
81-19 period. For purposes of this subsection, confiscation includes
81-20 negative cash flow experienced by the utility at any time during
81-21 the pendency of a rate case proceeding. The utility concerned
81-22 shall refund or credit against future bills all sums collected
81-23 during the period of interim rates in excess of the rate finally
81-24 ordered plus interest at the current rate as finally determined by
81-25 the commission.
81-26 SECTION 2.11. Subtitle D, Title II, Public Utility
81-27 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
82-1 74th Legislature, Regular Session, 1995, is amended by adding
82-2 Section 2.1511 to read as follows:
82-3 Sec. 2.1511. MARK-UP. Any cost recovery factor established
82-4 for recovery of purchased power costs may include the costs
82-5 incurred by the utility for the purchase of capacity and energy,
82-6 together with a mark-up added to the costs or other mechanism, as
82-7 determined by the commission, to reasonably compensate the utility
82-8 for financial risks, if any, to the utility associated with
82-9 purchased power obligations and the value added by the utility in
82-10 making the purchased power available to its customers. The
82-11 mark-ups and cost recovery factors, if allowed, may be those that
82-12 are necessary to encourage the utility to include economical
82-13 purchased power as part of its energy and capacity resource supply
82-14 plan.
82-15 SECTION 2.12. Section 2.152, Public Utility Regulatory Act
82-16 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
82-17 Regular Session, 1995, is amended by adding Subsection (e) to read
82-18 as follows:
82-19 (e) Reasonable costs of participating in a proceeding under
82-20 this Act may be allowed, not to exceed the amount approved by the
82-21 regulatory authority.
82-22 SECTION 2.13. Subsection (b), Section 2.154, Public Utility
82-23 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
82-24 74th Legislature, Regular Session, 1995, is amended to read as
82-25 follows:
82-26 (b) Every public utility shall file with, and as a part of
82-27 such schedules, all rules and regulations relating to or affecting
83-1 the rates, public utility service, product, or commodity furnished
83-2 by such utility. The commission shall treat customer names and
83-3 addresses, prices, individual customer contracts, and expected load
83-4 and usage data as highly sensitive trade secrets, and such
83-5 information shall not be subject to disclosure under the open
83-6 records law, Chapter 552, Government Code.
83-7 SECTION 2.14. Subtitle E, Title II, Public Utility
83-8 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
83-9 74th Legislature, Regular Session, 1995, is amended by adding
83-10 Section 2.2011 to read as follows:
83-11 Sec. 2.2011. ELECTRIC COOPERATIVE EXEMPTION. (a) An
83-12 electric cooperative corporation that provides retail electric
83-13 utility service at distribution voltage is exempt from rate
83-14 regulation if a majority of the members voting in an election on
83-15 the deregulation of the electric cooperative vote to approve the
83-16 exemption and the electric cooperative sends notice of the action
83-17 to each applicable regulatory authority. An electric cooperative
83-18 that wants to hold an election under this section shall send a
83-19 ballot by mail to each electric cooperative member. The electric
83-20 cooperative may include the ballot in a monthly billing. The
83-21 ballot shall provide for voting for or against rate deregulation of
83-22 the electric cooperative. If the proposition is approved, the
83-23 electric cooperative shall send each ballot to the commission not
83-24 later than the 10th day after the date the electric cooperative
83-25 counts the ballots. Based on the ballots received, the commission
83-26 shall administratively certify that the electric cooperative is or
83-27 is not deregulated for rate-making purposes. An electric
84-1 cooperative may not hold another election on the issue of being
84-2 exempt from rate regulation before the first anniversary of the
84-3 most recent election on the issue. Subsections (b) through (n) of
84-4 this section apply to an electric cooperative that has elected to
84-5 be exempt from rate regulation.
84-6 (b) No regulatory authority shall fix and regulate the rates
84-7 of an electric cooperative that has made an election under this
84-8 section to be exempt from rate regulation except as provided for
84-9 the commission in Subsections (g) and (i) of this section.
84-10 Notwithstanding Section 2.101(a) of this Act, the commission has
84-11 exclusive original jurisdiction in all of the electric
84-12 cooperative's service area in a proceeding initiated under
84-13 Subsection (g) or (i) of this section.
84-14 (c) An electric cooperative may change its rates by:
84-15 (1) adopting a resolution approving the proposed
84-16 change;
84-17 (2) mailing notice of the proposed change to:
84-18 (A) the commission;
84-19 (B) each affected municipality;
84-20 (C) each affected customer, which notice may be
84-21 included in a monthly billing; and
84-22 (D) each electric utility providing retail
84-23 service in the electric cooperative's service area or in the
84-24 adjoining service area; and
84-25 (3) making available at each of the electric
84-26 cooperative's business offices for review by all interested persons
84-27 a cost-of-service study that:
85-1 (A) is not more than five years old at the time
85-2 the electric cooperative adopts rates under this subsection; and
85-3 (B) bears the certification of a professional
85-4 engineer or certified public accountant.
85-5 (d)(1) The notice required by Subsection (c) of this section
85-6 must contain the following information:
85-7 (A) the increase or decrease in total operating
85-8 revenues over actual test year revenues or over test year revenues
85-9 adjusted to annualize the recovery of changes in the cost of
85-10 purchased electricity, stated both as a dollar amount and as a
85-11 percentage;
85-12 (B) the classes of utility customers affected
85-13 and the creation and application of any new rate classes;
85-14 (C) the increase or decrease for each class
85-15 stated as a percentage of actual test year revenues for the class
85-16 or of test year revenues for the class adjusted to annualize the
85-17 recovery of changes in the cost of purchased electricity;
85-18 (D) a statement that the commission may review
85-19 the rate change if the commission receives a petition within 60
85-20 days in accordance with Subsection (g) of this section;
85-21 (E) the address and telephone number of the
85-22 commission;
85-23 (F) a statement that a customer opposed to the
85-24 rate change should notify the electric cooperative in writing of
85-25 the person's opposition and should provide a return address; and
85-26 (G) a statement that members may review a copy
85-27 of any written opposition the electric cooperative receives.
86-1 (2) The electric cooperative may not be required to
86-2 include additional information in the notice.
86-3 (e) The electric cooperative shall make available for review
86-4 by a member of the cooperative at each of the electric
86-5 cooperative's business offices a copy of any written opposition to
86-6 the rate change the electric cooperative receives.
86-7 (f) The electric cooperative shall file tariffs with the
86-8 commission. If the electric cooperative complies with Subsection
86-9 (c) of this section, the commission shall approve the tariffs not
86-10 later than the 10th day after the 60-day period prescribed by
86-11 Subsection (g) of this section expires, unless a review is required
86-12 under Subsection (g) or (i) of this section. If the tariffs are
86-13 approved or if a review is not required and the commission fails to
86-14 act during the period prescribed by this subsection, the change in
86-15 rates takes effect on the 70th day after the date the electric
86-16 cooperative first complies with all requirements of Subsection (c)
86-17 of this section or on a later date determined by the electric
86-18 cooperative. Except as provided by Subsections (g) and (i) of this
86-19 section, the rates of the electric cooperative are not subject to
86-20 review.
86-21 (g) The commission shall review a change in rates under this
86-22 section if, not later than the 60th day after the date the electric
86-23 cooperative first complies with all requirements of Subsection (c)
86-24 of this section, the commission receives a petition requesting
86-25 review signed by:
86-26 (1) at least 10 percent of the members of the electric
86-27 cooperative;
87-1 (2) members of the electric cooperative who purchased
87-2 more than 50 percent of the electric cooperative's annual energy
87-3 sales to a customer class in the test year, provided that the
87-4 petition includes a certification of the purchases; or
87-5 (3) an executive officer of an affected electric
87-6 utility, provided that the petition prescribes the particular class
87-7 or classes for which a review is requested.
87-8 (h) When a person files a petition under Subsection (g) of
87-9 this section, the person shall notify the electric cooperative in
87-10 writing of the action.
87-11 (i) The commission may on its own motion review the rates of
87-12 an electric cooperative if the commission first finds that there is
87-13 good cause to believe that the electric cooperative is earning more
87-14 than a reasonable return on overall system revenues or on revenue
87-15 from a rate class.
87-16 (j) The commission shall conduct a review under Subsection
87-17 (g)(1) or (2) of this section or under Subsection (i) of this
87-18 section in accordance with Section 2.212 of this Act and the other
87-19 applicable rate-setting principles of this subtitle, except that:
87-20 (1) the period for review does not begin until the
87-21 electric cooperative files a rate-filing package as required by
87-22 commission rules;
87-23 (2) the proposed change may not be suspended during
87-24 the pendency of the review; however, the electric cooperative shall
87-25 refund or credit against future bills all sums collected in excess
87-26 of the rate finally set by the commission, if the commission so
87-27 orders; and
88-1 (3) the electric cooperative shall observe the rates
88-2 set by the commission until the rates are changed as provided by
88-3 this section or by other sections of this Act.
88-4 (k) For a review conducted under Subsection (g)(3) of this
88-5 section, the electric cooperative shall file with the commission a
88-6 copy of the cost-of-service study required under Subsection (c)(3)
88-7 of this section not later than the 10th day after the date the
88-8 electric cooperative receives from the affected electric utility
88-9 notice that a petition has been filed. The commission shall
88-10 determine for each class for which review has been requested the
88-11 annual cost of providing service to the class, as stated in the
88-12 electric cooperative's cost-of-service study, and the revenues for
88-13 the class that would be produced by multiplying the rate set by the
88-14 electric cooperative by the annual billing units for the class, as
88-15 stated in the cost-of-service study. If the electric cooperative
88-16 proposes a rate class solely for a new customer, the electric
88-17 cooperative shall estimate the reasonable annual cost of providing
88-18 service to the class, and the electric cooperative shall base class
88-19 revenues on reasonable estimates of billing units.
88-20 (l) The rate for each class for which review has been
88-21 requested under Subsection (g)(3) of this section is suspended
88-22 during the pendency of the review. The commission shall dismiss
88-23 the petition and approve the rates if the revenues for the class
88-24 are equal to or greater than the cost of providing service to the
88-25 class. The commission shall disapprove the rate if the revenues
88-26 for the class are less than the cost of providing service to the
88-27 class; however, this action does not affect reconsideration of the
89-1 rate as a part of any subsequent rate-making proceeding. The rate
89-2 adopted by the electric cooperative is deemed approved and may be
89-3 placed into effect if the commission fails to make its final
89-4 determination administratively not later than the 45th day after
89-5 the date the electric cooperative files its cost-of-service study.
89-6 (m) Except as provided by Subsection (a) of this section,
89-7 the members of an electric cooperative may at any time revoke the
89-8 electric cooperative's election to be exempt from rate regulation
89-9 or elect to again be exempt from rate regulation by majority vote
89-10 of the members voting.
89-11 (n) This section does not affect the application of other
89-12 provisions of this Act not directly related to rates or to the
89-13 authority of the commission to require an electric cooperative to
89-14 file reports required under this Act or rules adopted by the
89-15 commission. A service fee or a service rule or regulation set by
89-16 the electric cooperative under this section must comply with
89-17 commission rules applicable to all electric utilities. The
89-18 commission may determine whether an electric cooperative has
89-19 unlawfully charged, collected, or received a rate for electric
89-20 utility service.
89-21 (o) A single customer may seek a review of the rates of an
89-22 electric cooperative pursuant to Section 2.211 of this Act if the
89-23 customer consumes more than 250,000,000 kwh and purchases more than
89-24 10 percent of the total energy sales or more than 7.5 percent of
89-25 the revenues of the electric cooperative in any period of 12
89-26 consecutive months within the 36 months preceding the date on which
89-27 that customer initiates a proceeding under Section 2.211 of this
90-1 Act. A right conferred by this subsection is in addition to rights
90-2 that the customer has under Subsection (g) of this section and not
90-3 in limitation or in lieu of those rights.
90-4 SECTION 2.15. Subsection (b), Section 2.203, Public Utility
90-5 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
90-6 74th Legislature, Regular Session, 1995, is amended to read as
90-7 follows:
90-8 (b) In fixing a reasonable return on invested capital, the
90-9 regulatory authority shall consider, in addition to other
90-10 applicable factors, efforts to comply with the utility's most
90-11 recently approved individual integrated resource <statewide energy>
90-12 plan, the efforts and achievements of such utility in the
90-13 conservation of resources, the quality of the utility's services,
90-14 the efficiency of the utility's operations, and the quality of the
90-15 utility's management.
90-16 SECTION 2.16. Subsection (b), Section 2.208, Public Utility
90-17 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
90-18 74th Legislature, Regular Session, 1995, is amended to read as
90-19 follows:
90-20 (b) Transactions with Affiliated Interests. Payment to
90-21 affiliated interests for costs of any services or any property,
90-22 right, or thing or for interest expense may not be allowed either
90-23 as capital cost or as expense except to the extent that the
90-24 regulatory authority shall find such payment to be reasonable and
90-25 necessary for each item or class of items as determined by the
90-26 commission, provided that nothing herein requires such findings to
90-27 be made prior to the inclusion of such payments in the utility's
91-1 charges to consumers so long as there is a mechanism for making
91-2 such charges subject to refund pending the making of such findings
91-3 and provided further that no such findings are required where such
91-4 charges have been incurred in connection with a service contracted
91-5 by the utility as part of the utility's integrated resource plan
91-6 approved pursuant to Section 2.051 of this Act. <Any such finding
91-7 shall include specific findings of the reasonableness and necessity
91-8 of each item or class of items allowed and a finding that the price
91-9 to the utility is no higher than prices charged by the supplying
91-10 affiliate to its other affiliates or divisions for the same item or
91-11 class of items or to unaffiliated persons or corporations. The
91-12 price paid by gas utilities to affiliated interests for natural gas
91-13 from Outer Continental Shelf lands shall be subject to a rebuttable
91-14 presumption that such price is reasonable if the price paid does
91-15 not exceed the price permitted by federal regulation if such gas is
91-16 regulated by any federal agency or if not regulated by a federal
91-17 agency does not exceed the price paid by nonaffiliated parties for
91-18 natural gas from Outer Continental Shelf lands. The burden of
91-19 establishing that such a price paid is not reasonable shall be on
91-20 any party challenging the reasonableness of such price.>
91-21 SECTION 2.17. Section 2.211, Public Utility Regulatory Act
91-22 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
91-23 Regular Session, 1995, is amended by adding Subsections (c), (d),
91-24 and (e) to read as follows:
91-25 (c) Not later than the 120th day after the date the
91-26 regulatory authority notifies the utility that the regulatory
91-27 authority has decided to proceed with an inquiry under this section
92-1 relating to the rates of the utility, the utility shall file a
92-2 rate-filing package with the regulatory authority. The regulatory
92-3 authority may grant an extension of the 120-day period or waive the
92-4 rate-filing package requirement on agreement of the parties. The
92-5 regulatory authority shall make a final determination concerning
92-6 the matter not later than the 185th day after the date the utility
92-7 files the rate-filing package. However, the 185-day period is
92-8 extended two days for each one day of actual hearing on the merits
92-9 of the case that exceeds 15 days.
92-10 (d) At any time after an initial complaint is filed under
92-11 this section, the regulatory authority may issue an interim order
92-12 fixing temporary rates for the utility that will continue until a
92-13 final determination on the matter is made. On issuance of a final
92-14 order, the regulatory authority may require the utility to refund
92-15 to customers or to credit against future bills all sums collected
92-16 during the period in which those temporary rates were in effect
92-17 that are in excess of the rate finally ordered, plus interest at
92-18 the current rate as finally determined by the commission or, if the
92-19 amounts collected during the period in which the temporary rates
92-20 were in effect are less than the amounts that would have been
92-21 collected under the rate finally ordered, the regulatory authority
92-22 shall authorize the utility to surcharge bills to recover the
92-23 difference between those amounts, plus interest on the amount of
92-24 the difference at the current rate as finally determined by the
92-25 commission.
92-26 (e) If the 185-day period has been extended as provided by
92-27 Subsection (c) of this section and the regulatory authority has not
93-1 issued a final order or fixed temporary rates on or before the
93-2 185th day, the rates charged by the utility on that 185th day
93-3 automatically become temporary rates. On issuance of a final
93-4 order, the regulatory authority shall require the utility to refund
93-5 to customers or to credit against future bills all sums collected
93-6 during the period in which those temporary rates were in effect
93-7 that are in excess of the rate finally ordered, plus interest at
93-8 the current rate as finally determined by the commission or, if the
93-9 amounts collected during the period in which the temporary rates
93-10 were in effect are less than the amounts that would have been
93-11 collected under the rate finally ordered, the regulatory authority
93-12 shall authorize the utility to surcharge bills to recover the
93-13 difference between those amounts, plus interest on the amount of
93-14 the difference at the current rate as finally determined by the
93-15 commission.
93-16 SECTION 2.18. Subsections (a), (e), and (g), Section 2.212,
93-17 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
93-18 Acts of the 74th Legislature, Regular Session, 1995, are amended to
93-19 read as follows:
93-20 (a) Except as provided by Section 2.105(c) of this Act, a
93-21 <A> utility may not make changes in its rates except by filing a
93-22 statement of intent with the regulatory authority having original
93-23 jurisdiction at least 35 days prior to the effective date of the
93-24 proposed change. The statement of intent shall include proposed
93-25 revisions of tariffs and schedules and a statement specifying in
93-26 detail each proposed change, the effect the proposed change is
93-27 expected to have on the revenues of the company, the classes and
94-1 numbers of utility consumers affected, and such other information
94-2 as may be required by the regulatory authority's rules and
94-3 regulations. A copy of the statement of intent shall be mailed or
94-4 delivered to the appropriate officer of each affected municipality,
94-5 and notice shall be given by publication in conspicuous form and
94-6 place of a notice to the public of such proposed change once in
94-7 each week for four successive weeks prior to the effective date of
94-8 the proposed change in a newspaper having general circulation in
94-9 each county containing territory affected by the proposed change
94-10 and by mail to such other affected persons as may be required by
94-11 the regulatory authority's rules and regulations. The regulatory
94-12 authority may waive the publication of notice requirement
94-13 prescribed by this subsection in a proceeding that involves a rate
94-14 reduction for all affected ratepayers only. The applicant shall
94-15 give notice of the proposed rate change by mail to all affected
94-16 utility customers. The regulatory authority by rule shall also
94-17 define other proceedings for which the publication of notice
94-18 requirement prescribed by this subsection may be waived on a
94-19 showing of good cause, provided that a waiver may not be granted in
94-20 any proceeding involving a rate increase to any class or category
94-21 of ratepayer.
94-22 (e) If the 150-day period has been extended, as provided for
94-23 in Subsection (d) of this section, and the commission fails to make
94-24 its final determination of rates within 150 days from the date that
94-25 the proposed change otherwise would have gone into effect, the
94-26 utility concerned may put a changed rate, not to exceed the
94-27 proposed rate, into effect throughout all areas in which the
95-1 utility sought to change its rates, including the areas over which
95-2 the commission is exercising its appellate and its original
95-3 jurisdiction, on the filing with the commission <regulatory
95-4 authority> of a bond payable to the commission <regulatory
95-5 authority> in an amount and with sureties approved by the
95-6 commission <regulatory authority> conditioned upon refund and in a
95-7 form approved by the commission <regulatory authority>. The
95-8 utility concerned shall refund or credit against future bills all
95-9 sums collected during the period of suspension in excess of the
95-10 rate finally ordered plus interest at the current rate as finally
95-11 determined by the commission <regulatory authority>.
95-12 (g)(1) Except as permitted by Section 2.051 of this Act, a
95-13 <A> rate or tariff set by the commission may not authorize a
95-14 utility to automatically adjust and pass through to its customers
95-15 changes in fuel or other costs of the utility.
95-16 (2)(A) Subdivision (1) of this subsection does not
95-17 prohibit the commission from reviewing and providing for
95-18 adjustments of a utility's fuel factor. The commission by rule
95-19 shall implement procedures that provide for the timely adjustment
95-20 of a utility's fuel factor, with or without a hearing. The
95-21 procedures shall provide that the findings required by Section
95-22 2.208(b) of this Act regarding fuel transactions with affiliated
95-23 interests are made in a fuel reconciliation proceeding or in a rate
95-24 case filed under Subsection (a) of this section or under Section
95-25 2.211 of this Act. The procedures shall provide an affected party
95-26 notice and the opportunity to request a hearing before the
95-27 commission. However, the commission may adjust a utility's fuel
96-1 factor without a hearing if the commission determines that a
96-2 hearing is not necessary. If the commission holds a hearing, the
96-3 <Any revision of a utility's billings to its customers to allow for
96-4 the recovery of additional fuel costs may be made only upon a
96-5 public hearing and order of the commission.>
96-6 <(B) The> commission may consider any evidence
96-7 that is appropriate and in the public interest at such hearing.
96-8 The commission shall render a timely decision approving,
96-9 disapproving, or modifying the adjustment to the utility's fuel
96-10 factor.
96-11 (B) The commission by rule shall provide for the
96-12 reconciliation of a utility's fuel costs on a timely basis.
96-13 (C) A proceeding under this subsection may not
96-14 be considered a rate case under this section.
96-15 (3) <The commission may, after a hearing, grant
96-16 interim relief for fuel cost increases that are the result of
96-17 unusual and emergency circumstances or conditions.>
96-18 <(4)>(A) This subsection applies only to increases or
96-19 decreases in the cost of purchased electricity which have been:
96-20 (i) accepted by a federal regulatory
96-21 authority; or
96-22 (ii) approved after a hearing by the
96-23 commission.
96-24 (B) The commission may utilize any appropriate
96-25 method to provide for the adjustment of the cost of purchased
96-26 electricity upon such terms and conditions as the commission may
96-27 determine. Such purchased electricity costs may be recovered
97-1 concurrently with the effective date of the changed costs to the
97-2 purchasing utility or as soon thereafter as is reasonably
97-3 practical.
97-4 (C) The commission may also provide for a
97-5 mechanism to allow any public utility that has a noncontiguous
97-6 geographical service area, and that purchases power for resale for
97-7 that noncontiguous service area from public utilities that are not
97-8 members of the Electric Reliability Council of Texas, to recover
97-9 purchased power cost for that area in a manner that reflects the
97-10 purchased power cost for that specific geographical noncontiguous
97-11 area. The commission may not, however, require such a mechanism
97-12 for any electric cooperative corporation unless requested by the
97-13 electric cooperative corporation.
97-14 SECTION 2.19. Section 2.214, Public Utility Regulatory Act
97-15 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
97-16 Regular Session, 1995, is amended to read as follows:
97-17 Sec. 2.214. UNREASONABLE PREFERENCE OR PREJUDICE AS TO RATES
97-18 OR SERVICES. A public utility may not, as to rates or services,
97-19 make or grant any unreasonable preference or advantage to any
97-20 corporation or person within any classification or subject any
97-21 corporation or person within any classification to any unreasonable
97-22 prejudice or disadvantage. A public utility may not establish and
97-23 maintain any unreasonable differences as to rates of service either
97-24 as between localities or as between classes of service. Charges to
97-25 individual customers for retail or wholesale electric service that
97-26 are less than the rate approved by the regulatory authority shall
97-27 not constitute an impermissible difference, preference, or
98-1 advantage.
98-2 SECTION 2.20. Subtitle E, Title II, Public Utility
98-3 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
98-4 74th Legislature, Regular Session, 1995, is amended by adding
98-5 Section 2.2141 to read as follows:
98-6 Sec. 2.2141. DISCOUNTED RATES FOR CERTAIN STATE INSTITUTIONS
98-7 OF HIGHER EDUCATION. Notwithstanding any other provision of this
98-8 Act, each public utility and municipally owned utility shall
98-9 discount charges for electric service provided to any facility of
98-10 any four-year state university, upper-level institution, or
98-11 college. The discount shall be a 20 percent reduction of the
98-12 utility's base rates that otherwise would be rendered under the
98-13 applicable tariffed rate. However, if a 20 percent discount
98-14 results in a reduction greater than one percent of the public or
98-15 municipally owned utility's total annual revenues or if the
98-16 municipally owned utility, as of September 1, 1995, discounts base
98-17 commercial rates for electric service provided to all four-year
98-18 state universities or colleges in its service area by 20 percent or
98-19 more, the utility shall be exempt from the provisions of this
98-20 section. Each public utility shall file tariffs with the
98-21 commission reflecting the discount within 30 days of the effective
98-22 date of this section. Such initial tariff filing shall not be
98-23 considered a rate change for purposes of Section 2.212 of this Act.
98-24 This section does not apply to rates charged to a state institution
98-25 of higher education by a municipally owned utility which provides a
98-26 discounted rate to the state for electric services below rates in
98-27 effect on January 1, 1995, and which discounted rates provide a
99-1 greater financial discount to the state than is provided to the
99-2 state institution of higher education through the discount provided
99-3 by this section. An investor-owned public utility may not recover
99-4 the assigned and allocated costs of serving a state university or
99-5 college which receives a discount under this section from
99-6 residential customers or any other customer class.
99-7 SECTION 2.21. Section 2.215, Public Utility Regulatory Act
99-8 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
99-9 Regular Session, 1995, is amended by amending Subsection (a) and by
99-10 adding Subsection (c) to read as follows:
99-11 (a) A public utility may not, directly or indirectly, by any
99-12 device whatsoever or in any manner, charge, demand, collect, or
99-13 receive from any person a greater or less compensation for any
99-14 service rendered or to be rendered by the utility than that
99-15 prescribed in the schedule of rates of the public utility
99-16 applicable thereto when filed in the manner provided in this Act,
99-17 nor may any person knowingly receive or accept any service from a
99-18 public utility for a compensation greater or less than that
99-19 prescribed in the schedules provided that it is lawful for a
99-20 utility to charge individual customers for retail or wholesale
99-21 electric service less than the rate approved by the regulatory
99-22 authority and for a person to pay such lesser charge if such lesser
99-23 charge is in accordance with Section 2.052.
99-24 (c) Notwithstanding any other provision of this Act, if the
99-25 commission has approved as of September 1, 1995, the establishment
99-26 of a separate rate class for electric service for a university and
99-27 has grouped public schools in a separate rate class, the commission
100-1 shall include community colleges in the rate class with public
100-2 school customers.
100-3 SECTION 2.22. Section 2.251, Public Utility Regulatory Act
100-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
100-5 Regular Session, 1995, is amended to read as follows:
100-6 Sec. 2.251. DEFINITION. For the purposes of this subtitle
100-7 only, "retail public utility" means any person, corporation,
100-8 municipality, political subdivision or agency, or cooperative
100-9 corporation, now or hereafter operating, maintaining, or
100-10 controlling in Texas facilities for providing retail public utility
100-11 service, except that a qualifying cogenerator selling electric
100-12 energy at retail to the sole purchaser of the cogenerator's thermal
100-13 output pursuant to Section 2.052 of this Act shall not for that
100-14 reason be considered a retail public utility.
100-15 SECTION 2.23. Subsections (d), (e), and (f), Section 2.255,
100-16 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
100-17 Acts of the 74th Legislature, Regular Session, 1995, are amended to
100-18 read as follows:
100-19 (d) This section does not apply to a certificate of
100-20 convenience and necessity for an electric generating plant that is
100-21 requested under Section 2.051 of this Act. The commission may
100-22 grant a certificate of convenience and necessity for an electric
100-23 generating plant only in accordance with Section 2.051 of this Act.
100-24 (e) <(1) In addition to the requirements of this section, an
100-25 electric utility applying for a certificate of convenience and
100-26 necessity for a new generating plant must first file a notice of
100-27 intent to file an application for certification.>
101-1 <(2) The notice of intent shall set out alternative
101-2 methods considered to help meet the electrical needs, related
101-3 electrical facilities, and the advantages and disadvantages of the
101-4 alternatives. In addition, the notice shall indicate compatibility
101-5 with the most recent long-term forecast provided in this Act.>
101-6 <(3) The commission shall conduct a hearing on the
101-7 notice of intent to determine the appropriateness of the proposed
101-8 generating plant as compared to the alternatives and shall issue a
101-9 report on its findings. In conjunction with the issuance of the
101-10 report, the commission shall render a decision approving or
101-11 disapproving the notice. Such decision shall be rendered within
101-12 180 days from the date of filing the notice of intent.>
101-13 <(e)(1) On approval of the notice of intent, a utility may
101-14 apply for certification for a generating plant, site, and site
101-15 facilities not later than 12 months before construction is to
101-16 commence.>
101-17 <(2) The application for certification shall contain
101-18 such information as the commission may require to justify the
101-19 proposed generating plant, site, and site facilities and to allow a
101-20 determination showing compatibility with the most recent forecast.>
101-21 <(3) Certificates of convenience and necessity shall
101-22 be granted on a nondiscriminatory basis if the commission finds
101-23 that the proposed new plant is required under the service area
101-24 forecast, that it is the best and most economical choice of
101-25 technology for that service area as compatible with the
101-26 commission's forecast, and that conservation and alternative energy
101-27 sources cannot meet the need.>
102-1 <(f)> If the application for a certificate of convenience
102-2 and necessity involves new transmission facilities, the commission
102-3 shall approve or deny the application within one year after the
102-4 date the application is filed. If the commission does not approve
102-5 or deny the application before this deadline, any party may seek a
102-6 writ of mandamus in a district court of Travis County to compel the
102-7 commission to make a decision on the application.
102-8 SECTION 2.24. Section 2302.043, Government Code, is amended
102-9 to read as follows:
102-10 Sec. 2302.043. Order or Ruling. (a) A commission order or
102-11 ruling entered under this chapter is considered to have been
102-12 entered or adopted under the Public Utility Regulatory Act of 1995
102-13 <(Article 1446c, Vernon's Texas Civil Statutes)>.
102-14 (b) A commission order or ruling entered under this chapter
102-15 is enforced under Subtitle I, Title I, <Sections 71 through 77 of
102-16 the> Public Utility Regulatory Act of 1995 <(Article 1446c,
102-17 Vernon's Texas Civil Statutes)>.
102-18 SECTION 2.25. Chapter 166, Acts of the 63rd Legislature,
102-19 Regular Session, 1973 (Article 1435a, Vernon's Texas Civil
102-20 Statutes), is amended by adding Section 4c to read as follows:
102-21 Sec. 4c. (a) An electric cooperative corporation may form a
102-22 joint powers agency with one or more public entities and
102-23 participate in an existing joint powers agency in which at least
102-24 one public entity is a member and participant, as if the electric
102-25 cooperative corporation were a public entity.
102-26 (b) Notwithstanding any state statute to the contrary, a
102-27 joint powers agency formed under this section after the effective
103-1 date of this section is subject to all provisions of the Public
103-2 Utility Regulatory Act of 1995, as enacted by S.B. 319, Acts of the
103-3 74th Legislature, Regular Session, 1995, and is under the
103-4 jurisdiction of the Public Utility Commission of Texas as provided
103-5 by that Act.
103-6 (c) A joint powers agency in which an electric cooperative
103-7 corporation participates under this section is a governmental body
103-8 subject to Chapter 551, Government Code.
103-9 (d) This section may not be construed to authorize or
103-10 entitle an electric cooperative corporation to issue bonds or other
103-11 securities that are exempt from taxation under federal law.
103-12 SECTION 2.26. Section 4A, Electric Cooperative Corporation
103-13 Act (Article 1528b, Vernon's Texas Civil Statutes), is amended to
103-14 read as follows:
103-15 Sec. 4A. Additional Powers. Notwithstanding any other
103-16 provision of this Act, a corporation has authority to generate,
103-17 manufacture, purchase, acquire, and accumulate electric energy and
103-18 to transmit, distribute, sell, furnish, and dispose of such
103-19 electric energy to the following entities if the same are engaged
103-20 in the generation, <and> transmission, or distribution of
103-21 electricity <for resale>:
103-22 (1) firms, associations, corporations<, except those
103-23 who meet the criteria for a small power production facility and/or
103-24 a cogeneration facility under Section 201 of the Public Utility
103-25 Regulatory Policies Act of 1978 (PURPA)>;
103-26 (2) federal agency;
103-27 (3) state or political subdivision of a state <with an
104-1 installed generation capacity in excess of 500 MW>; or
104-2 (4) a municipal power agency or political subdivision
104-3 of a state which is a co-owner with such corporation of a jointly
104-4 owned electric generation facility.
104-5 <A corporation may also sell, furnish, and dispose of the
104-6 electric energy to a political subdivision of the state which is
104-7 engaged in the generation, transmission, or distribution of
104-8 electricity for resale and to which the corporation was selling and
104-9 furnishing electric energy on December 31, 1982.>
104-10 The members-only requirement of Section 4(4) of this Act
104-11 shall continue to apply to all sales by a corporation to other
104-12 persons and entities.
104-13 SECTION 2.27. Section 171.079, Tax Code, is amended to read
104-14 as follows:
104-15 Sec. 171.079. EXEMPTION--ELECTRIC COOPERATIVE CORPORATION.
104-16 An electric cooperative corporation incorporated under the Electric
104-17 Cooperative Corporation Act (Article 1528b, Vernon's Texas Civil
104-18 Statutes) that is not a participant in a joint powers agency is
104-19 exempted from the franchise tax.
104-20 SECTION 2.28. (a) The Public Utility Commission of Texas by
104-21 rule shall adopt a statewide integrated resource planning process
104-22 as required by Section 2.051, Public Utility Regulatory Act of
104-23 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
104-24 Regular Session, 1995, and as amended by this Act, not later than
104-25 September 1, 1996.
104-26 (b) The changes in law made by this Act to Section 2.255,
104-27 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
105-1 Acts of the 74th Legislature, Regular Session, 1995, take effect
105-2 September 1, 1996, and apply only to an application for a
105-3 certificate of convenience and necessity filed on or after that
105-4 date, except that, in the case of a utility for which the
105-5 commission has not yet approved an individual integrated resource
105-6 plan as of September 1, 1996, an application for a certificate of
105-7 convenience and necessity is governed by the law in effect
105-8 immediately preceding the effective date of this Act until the
105-9 commission approves an integrated resource plan for the utility.
105-10 SECTION 2.29. The Public Utility Commission of Texas shall
105-11 adopt the initial rules required by Section 2.057, Public Utility
105-12 Regulatory Act of 1995, as added by this Act, not later than the
105-13 180th day after the effective date of this Act.
105-14 SECTION 2.30. An exempt wholesale generator or power
105-15 marketer required to register under Subsection (c), Section 2.053,
105-16 Public Utility Regulatory Act of 1995, as added by this Act, shall
105-17 register not later than the 90th day after the effective date of
105-18 this Act.
105-19 SECTION 2.31. Except as otherwise provided by this Act, this
105-20 Act takes effect September 1, 1995.
105-21 SECTION 2.32. The importance of this legislation and the
105-22 crowded condition of the calendars in both houses create an
105-23 emergency and an imperative public necessity that the
105-24 constitutional rule requiring bills to be read on three several
105-25 days in each house be suspended, and this rule is hereby suspended,
105-26 and that this Act take effect and be in force according to its
105-27 terms, and it is so enacted.