By Armbrister S.B. No. 373
74R7172 DWS-F
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 Subdivision (18) to
1-10 read as follows:
1-11 (18) "Trade association" means a nonprofit,
1-12 cooperative, and voluntarily joined association of business or
1-13 professional persons who are employed by public utilities or
1-14 utility competitors to assist the public utility industry, a
1-15 utility competitor, or the industry's or competitor's employees in
1-16 dealing with mutual business or professional problems and in
1-17 promoting their common interest.
1-18 SECTION 1.02. Section 1.005, Public Utility Regulatory Act
1-19 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
1-20 Regular Session, 1995, is amended to read as follows:
1-21 Sec. 1.005. APPLICABILITY OF ADMINISTRATIVE PROCEDURE ACT
1-22 AND OPEN MEETINGS LAW. (a) Chapter 2001, Government Code, applies
1-23 to all proceedings under this Act except to the extent inconsistent
1-24 with this Act. Communications of members and employees of the
2-1 commission with a party, a party's representative, or other persons
2-2 are governed by Section 2001.061, Government Code.
2-3 (b) The commission is subject to Chapter 551, Government
2-4 Code.
2-5 SECTION 1.03. Subtitle A, Title I, Public Utility Regulatory
2-6 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
2-7 Legislature, Regular Session, 1995, is amended by adding Section
2-8 1.006 to read as follows:
2-9 Sec. 1.006. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN
2-10 MANNER OTHER THAN BY SETTING OF RATES. In this Act, an entity,
2-11 utility competitor, or utility supplier is considered to be
2-12 affected in a manner other than by the setting of rates for that
2-13 class of customer if during a relevant calendar year the entity
2-14 provides fuel, utility-related goods, utility-related products, or
2-15 utility-related services to a regulated or unregulated provider of
2-16 telecommunications or electric services or to an affiliated
2-17 interest in an amount equal to the greater of $10,000 or 10 percent
2-18 of the person's business.
2-19 SECTION 1.04. Sections 1.021(c) and (d), Public Utility
2-20 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
2-21 74th Legislature, Regular Session, 1995, are amended to read as
2-22 follows:
2-23 (c) The governor shall designate a member of the commission
2-24 as presiding officer of the commission to serve in that capacity at
2-25 the pleasure of the governor. <At its first meeting following the
2-26 biennial appointment and qualification of a commissioner, the
2-27 commission shall elect one of the commissioners chairman.>
3-1 (d) Appointments to the commission shall be made without
3-2 regard to the race, color, disability <creed>, sex, religion, age,
3-3 or national origin of the appointees.
3-4 SECTION 1.05. Section 1.022, Public Utility Regulatory Act
3-5 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-6 Regular Session, 1995, is amended to read as follows:
3-7 Sec. 1.022. SUNSET PROVISION. The Public Utility Commission
3-8 of Texas and the Office of Public Utility Counsel are subject to
3-9 Chapter 325, Government Code (Texas Sunset Act). Unless continued
3-10 in existence as provided by that chapter, the commission and the
3-11 office are abolished and this Act expires September 1, 2001 <1995>.
3-12 SECTION 1.06. Section 1.023, Public Utility Regulatory Act
3-13 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
3-14 Regular Session, 1995, is amended to read as follows:
3-15 Sec. 1.023. QUALIFICATIONS; OATH <AND BOND>; PROHIBITED
3-16 ACTIVITIES. (a) To be eligible for appointment as a commissioner,
3-17 a person must be a qualified voter, <not less than 30 years of
3-18 age,> a citizen of the United States, <and> a resident of the State
3-19 of Texas, and a representative of the general public.
3-20 (b) Each commissioner shall qualify for office by taking the
3-21 oath prescribed for other state officers <and shall execute a bond
3-22 for $5,000 payable to the state and conditioned on the faithful
3-23 performance of his duties>.
3-24 (c) A person is not eligible for appointment as a
3-25 commissioner if at any time during the two-year period immediately
3-26 preceding his appointment he personally served as an officer,
3-27 director, owner, employee, partner, or legal representative of any
4-1 public utility, <or any> affiliated interest, or direct competitor
4-2 of a public utility or he owned or controlled, directly or
4-3 indirectly, stocks or bonds of any class with a value of $10,000 or
4-4 more in a public utility, <or any> affiliated interest, or direct
4-5 competitor of a public utility.
4-6 (d) A person who is required to register as a lobbyist under
4-7 Chapter 305, Government Code, because of the person's activities
4-8 for compensation on behalf of a profession related to the operation
4-9 of the commission may not serve as a member of the commission or
4-10 public utility counsel or act as the general counsel to the
4-11 commission.
4-12 (e) A person is not eligible for appointment as a public
4-13 member of the commission or for employment as the general counsel
4-14 or executive director of the commission if:
4-15 (1) the person serves on the board of directors of a
4-16 company that supplies fuel, utility-related services, or
4-17 utility-related products to regulated or unregulated electric or
4-18 telecommunications utilities; or
4-19 (2) the person or the person's spouse:
4-20 (A) is employed by or participates in the
4-21 management of a business entity or other organization regulated by
4-22 the commission or receiving funds from the commission;
4-23 (B) owns or controls, directly or indirectly,
4-24 more than a 10 percent interest or a pecuniary interest with a
4-25 value exceeding $10,000 in:
4-26 (i) a business entity or other
4-27 organization regulated by the commission or receiving funds from
5-1 the commission; or
5-2 (ii) any utility competitor, utility
5-3 supplier, or other entity affected by a commission decision in a
5-4 manner other than by the setting of rates for that class of
5-5 customer;
5-6 (C) uses or receives a substantial amount of
5-7 tangible goods, services, or funds from the commission, other than
5-8 compensation or reimbursement authorized by law for commission
5-9 membership, attendance, or expenses; or
5-10 (D) notwithstanding Paragraph (B) of this
5-11 subdivision, has an interest in a mutual fund or retirement fund in
5-12 which more than 10 percent of the fund's holdings at the time of
5-13 appointment is in a single utility, utility competitor, or utility
5-14 supplier in this state and the person does not disclose this
5-15 information to the governor, senate, commission, or other entity,
5-16 as appropriate.
5-17 (f) Notwithstanding any other provision of this Act, a
5-18 person otherwise ineligible because of the application of
5-19 Subsection (e)(2)(B) of this section may be appointed to the
5-20 commission and serve as a commissioner or may be employed as the
5-21 general counsel or executive director if the person:
5-22 (1) notifies the attorney general and commission that
5-23 the person is ineligible because of the application of Subsection
5-24 (e)(2)(B) of this section; and
5-25 (2) divests the person or the person's spouse of the
5-26 ownership or control before beginning service or employment, or
5-27 within a reasonable time if the person is already serving or
6-1 employed at the time Subsection (e)(2)(B) of this section first
6-2 applies to the person.
6-3 (g) An officer, employee, or paid consultant of a trade
6-4 association in the field of public utilities may not be a member or
6-5 employee of the commission who is exempt from the state's position
6-6 classification plan or is compensated at or above the amount
6-7 prescribed by the General Appropriations Act for step 1, salary
6-8 group 17, of the position classification salary schedule.
6-9 (h) A person who is a spouse of an officer, manager, or paid
6-10 consultant of a trade association in the field of public utilities
6-11 may not be a commission member and may not be a commission employee
6-12 who is exempt from the state's position classification plan or is
6-13 compensated at or above the amount prescribed by the General
6-14 Appropriations Act for step 1, salary group 17, of the position
6-15 classification salary schedule.
6-16 SECTION 1.07. Sections 1.024(a), (d), and (e), Public
6-17 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
6-18 the 74th Legislature, Regular Session, 1995, are amended to read as
6-19 follows:
6-20 (a) A commissioner or employee of the commission may not do
6-21 any of the following during his period of service with the
6-22 commission:
6-23 (1) have any pecuniary interest, either as an officer,
6-24 director, partner, owner, employee, attorney, consultant, or
6-25 otherwise, in any public utility or affiliated interest, or in any
6-26 person or corporation or other business entity a significant
6-27 portion of whose business consists of furnishing goods or services
7-1 to public utilities or affiliated interests, but not including a
7-2 nonprofit group or association solely supported by gratuitous
7-3 contributions of money, property or services, other than a trade
7-4 association;
7-5 (2) own or control any securities in a public utility,
7-6 <or> affiliated interest, or direct competitor of a public utility,
7-7 either directly or indirectly; or
7-8 (3) accept any gift, gratuity, or entertainment
7-9 whatsoever from any public utility, <or> affiliated interest, or
7-10 direct competitor of a public utility, or from any person,
7-11 corporation, agent, representative, employee, or other business
7-12 entity a significant portion of whose business consists of
7-13 furnishing goods or services to public utilities, <or> affiliated
7-14 interests, or direct competitors of public utilities, or from any
7-15 agent, representative, attorney, employee, officer, owner,
7-16 director, or partner of any such business entity or of any public
7-17 utility, <or> affiliated interest, or direct competitor of a public
7-18 utility; provided, however, that the receipt and acceptance of any
7-19 gifts, gratuities, or entertainment after termination of service
7-20 with the commission whose cumulative value in any one-year period
7-21 is less than $100 does not constitute a violation of this Act.
7-22 (d) A public utility, <or> affiliated interest, or direct
7-23 competitor of a public utility, or any person, corporation, firm,
7-24 association, or business that furnishes goods or services to any
7-25 public utility, <or> affiliated interest, or direct competitor of a
7-26 public utility, or any agent, representative, attorney, employee,
7-27 officer, owner, director, or partner of any public utility, <or>
8-1 affiliated interest, or direct competitor of a public utility, or
8-2 any person, corporation, firm, association, or business furnishing
8-3 goods or services to any public utility, <or> affiliated interest,
8-4 or direct competitor of a public utility may not give or offer to
8-5 give any gift, gratuity, employment, or entertainment whatsoever to
8-6 any member or employee of the commission except as allowed by
8-7 Subdivision (3) of Subsection (a) of this section, nor may any such
8-8 public utility, <or> affiliated interest, or direct competitor of a
8-9 public utility or any such person, corporation, firm, association,
8-10 or business aid, abet, or participate with any member, employee, or
8-11 former employee of the commission in any activity or conduct that
8-12 would constitute a violation of this subsection or Subdivision (3)
8-13 of Subsection (a) of this section.
8-14 (e) It is not a violation of this section if a member of the
8-15 commission or a person employed by the commission, upon becoming
8-16 the owner of any stocks or bonds or other pecuniary interest in a
8-17 public utility, <or> affiliated interest, or direct competitor of a
8-18 public utility <under the jurisdiction of the commission> otherwise
8-19 than voluntarily, informs the commission and the attorney general
8-20 of such ownership and divests himself of the ownership or interest
8-21 within a reasonable time. In this section, a "pecuniary interest"
8-22 includes income, compensation, and payment of any kind, in addition
8-23 to ownership interests. It is not a violation of this section if
8-24 such a pecuniary interest is held indirectly by ownership of an
8-25 interest in a retirement system, institution, or fund which in the
8-26 normal course of business invests in diverse securities
8-27 independently of the control of the commissioner or employee.
9-1 SECTION 1.08. Section 1.025, Public Utility Regulatory Act
9-2 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
9-3 Regular Session, 1995, is amended to read as follows:
9-4 Sec. 1.025. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
9-5 (a) A commissioner may not within two years, and an employee of
9-6 the commission or an employee of the State Office of Administrative
9-7 Hearings involved in hearing utility cases may not, within one year
9-8 after his employment with the commission or the State Office of
9-9 Administrative Hearings has ceased, be employed by:
9-10 (1) a public utility or affiliate which was in the
9-11 scope of the commissioner's or employee's official responsibility
9-12 while the commissioner or employee was associated with the
9-13 commission or the State Office of Administrative Hearings; or
9-14 (2) a utility competitor, utility supplier, or other
9-15 entity affected in a manner other than by the setting of rates for
9-16 that class of customer.
9-17 (b) During the time a commissioner or employee of the
9-18 commission or an employee of the State Office of Administrative
9-19 Hearings involved in hearing utility cases is associated with the
9-20 commission or State Office of Administrative Hearings or at any
9-21 time after, the commissioner or employee may not represent a
9-22 person, corporation, or other business entity before the commission
9-23 or State Office of Administrative Hearings or a court in a matter
9-24 in which the commissioner or employee was personally involved while
9-25 associated with the commission or State Office of Administrative
9-26 Hearings or a matter that was within the commissioner's or
9-27 employee's official responsibility while the commissioner or
10-1 employee was associated with the commission or State Office of
10-2 Administrative Hearings.
10-3 (c) The commission shall require its members and employees
10-4 to read this section and Section 1.024 of this Act and as often as
10-5 necessary shall provide information regarding their qualifications
10-6 for office or employment under this Act and their responsibilities
10-7 under applicable laws relating to standards of conduct for state
10-8 officers and employees.
10-9 SECTION 1.09. Section 1.026, Public Utility Regulatory Act
10-10 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
10-11 Regular Session, 1995, is amended to read as follows:
10-12 Sec. 1.026. GROUNDS FOR REMOVAL; VALIDITY OF ACTIONS.
10-13 (a) It is a ground for removal from the commission if a member:
10-14 (1) does not have at the time of appointment the
10-15 qualifications required by Section 1.023 of this Act <for
10-16 appointment to the commission>; <or>
10-17 (2) does not maintain during <the> service on the
10-18 commission the qualifications required by Section 1.023 of this
10-19 Act;
10-20 (3) violates a prohibition established by Section
10-21 1.023, 1.024, or 1.025 of this Act;
10-22 (4) cannot discharge the member's duties for a
10-23 substantial part of the term for which the member is appointed
10-24 because of illness or disability; or
10-25 (5) is absent from more than half of the regularly
10-26 scheduled commission meetings that the member is eligible to attend
10-27 during a calendar year unless the absence is excused by majority
11-1 vote of <for appointment to> the commission.
11-2 (b) The validity of an action of the commission is not
11-3 affected by the fact that it is <was> taken when a ground for
11-4 removal of a commission member exists <of the commission existed>.
11-5 (c) If the executive director has knowledge that a potential
11-6 ground for removal exists, the executive director shall notify the
11-7 presiding officer of the commission of the potential ground. The
11-8 presiding officer shall then notify the governor and the attorney
11-9 general that a potential ground for removal exists. If the
11-10 potential ground for removal involves the presiding officer of the
11-11 commission, the executive director shall notify the next highest
11-12 officer of the commission, who shall notify the governor and the
11-13 attorney general that a potential ground for removal exists.
11-14 (d) Before a member of the commission may assume the
11-15 member's duties and before the member may be confirmed by the
11-16 senate, the member must complete at least one course of the
11-17 training program established under this section.
11-18 (e) A training program established under this section shall
11-19 provide information to the member regarding:
11-20 (1) the enabling legislation that created the
11-21 commission and its policymaking body to which the member is
11-22 appointed to serve;
11-23 (2) the programs operated by the commission;
11-24 (3) the role and functions of the commission;
11-25 (4) the rules of the commission with an emphasis on
11-26 the rules that relate to disciplinary and investigatory authority;
11-27 (5) the current budget for the commission;
12-1 (6) the results of the most recent formal audit of the
12-2 commission;
12-3 (7) the requirements of Chapters 551, 552, and 2001,
12-4 Government Code;
12-5 (8) the requirements of the conflict of interest laws
12-6 and other laws relating to public officials; and
12-7 (9) any applicable ethics policies adopted by the
12-8 commission or the Texas Ethics Commission.
12-9 SECTION 1.10. Sections 1.028(a), (b), and (e), Public
12-10 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of
12-11 the 74th Legislature, Regular Session, 1995, are amended to read as
12-12 follows:
12-13 (a) The commission shall employ an executive director, a
12-14 general counsel, and such officers<, administrative law judges,
12-15 hearing examiners, investigators, lawyers, engineers, economists,
12-16 consultants, statisticians, accountants, administrative assistants,
12-17 inspectors, clerical staff,> and other employees as it deems
12-18 necessary to carry out the provisions of this Act. All employees
12-19 receive such compensation as is fixed by the legislature. The
12-20 commission shall develop and implement policies that clearly define
12-21 the respective responsibilities of the commission and the staff of
12-22 the commission.
12-23 (b) The executive director is responsible for the day-to-day
12-24 operations of the commission and shall coordinate the activities of
12-25 commission employees. The executive director shall coordinate with
12-26 the general counsel in providing assistance and technical advice to
12-27 the commissioners in evaluating the evidence and recommendations
13-1 offered by the utility division of the State Office of
13-2 Administrative Hearings. <The commission shall employ the
13-3 following:>
13-4 <(1) an executive director;>
13-5 <(2) a director of hearings who has wide experience in
13-6 utility regulation and rate determination;>
13-7 <(3) a chief engineer who is a registered engineer and
13-8 an expert in public utility engineering and rate matters;>
13-9 <(4) a chief accountant who is a certified public
13-10 accountant, experienced in public utility accounting;>
13-11 <(5) a director of research who is experienced in the
13-12 conduct of analyses of industry, economics, energy, fuel, and other
13-13 related matters that the commission may want to undertake;>
13-14 <(6) a director of consumer affairs and public
13-15 information;>
13-16 <(7) a director of utility evaluation;>
13-17 <(8) a director of energy conservation; and>
13-18 <(9) a general counsel.>
13-19 <(e) The commission shall employ administrative law judges
13-20 to preside at hearings of major importance before the commission.
13-21 An administrative law judge must be a licensed attorney with not
13-22 less than five years' general experience or three years' experience
13-23 in utility regulatory law. The administrative law judge shall
13-24 perform his duties independently from the commission.>
13-25 SECTION 1.11. Section 1.029, Public Utility Regulatory Act
13-26 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
13-27 Regular Session, 1995, is amended to read as follows:
14-1 Sec. 1.029. PERSONNEL POLICIES. (a) The executive director
14-2 or the executive director's <his> designee shall develop an
14-3 intra-agency career ladder program that addresses opportunities for
14-4 mobility and advancement for employees of the commission. The
14-5 program shall require intra-agency posting of all positions
14-6 concurrently with<, one part of which shall be the intra-agency
14-7 posting of all nonentry level positions for at least 10 days
14-8 before> any public posting. The executive director or the
14-9 executive director's <his> designee shall develop a system of
14-10 annual performance evaluations that are based on documented
14-11 employee performance <measurable job tasks>. All merit pay for
14-12 commission employees must be based on the system established under
14-13 this section.
14-14 (b) The executive director or the executive director's
14-15 <his/her> designee shall prepare and maintain a written policy
14-16 statement <plan> to assure implementation of a program of equal
14-17 employment opportunity under which <whereby> all personnel
14-18 transactions are made without regard to race, color, disability,
14-19 sex, religion, age, or national origin. The policy statement must
14-20 <plan shall> include:
14-21 (1) personnel policies that comply with Chapter 21,
14-22 Labor Code, including policies relating to recruitment, evaluation,
14-23 selection, appointment, training, and promotion of personnel;
14-24 (2) a comprehensive analysis of the commission
14-25 workforce that meets federal and state guidelines;
14-26 (3) procedures by which a determination can be made
14-27 about the extent of underuse in the commission workforce of all
15-1 persons for whom federal or state guidelines encourage a more
15-2 equitable balance; and
15-3 (4) reasonable methods to appropriately address the
15-4 underuse. <a comprehensive analysis of all the agency's workforce
15-5 by race, sex, ethnic origin, class of position, and salary or wage;>
15-6 <(2) plans for recruitment, evaluation, selection,
15-7 appointment, training, promotion, and other personnel policies;>
15-8 <(3) steps reasonably designed to overcome any
15-9 identified underutilization of minorities and women in the agency's
15-10 workforce; and>
15-11 <(4) objectives and goals, timetables for the
15-12 achievement of the objectives and goals, and assignments of
15-13 responsibility for their achievement.>
15-14 (c) The policy statement <plan> required under Subsection
15-15 (b) of this section must <shall be filed with the governor's office
15-16 within 60 days of the effective date of this Act,> cover an annual
15-17 period, <and> be updated at least annually and reviewed by the
15-18 Texas Commission on Human Rights for compliance with Subsection
15-19 (b)(1) of this section, and<. Progress reports shall> be filed
15-20 with <submitted to> the governor's office <within 30 days of
15-21 November 1 and April 1 of each year and shall include the steps the
15-22 agency has taken within the reporting period to comply with these
15-23 requirements>.
15-24 (d) The governor's office shall deliver a biennial report to
15-25 the legislature based on the information received under Subsection
15-26 (c) of this section. The report may be made separately or as a
15-27 part of other biennial reports made to the legislature.
16-1 SECTION 1.12. Section 1.031, Public Utility Regulatory Act
16-2 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
16-3 Regular Session, 1995, is amended to read as follows:
16-4 Sec. 1.031. OFFICE; MEETINGS. (a) The principal office of
16-5 the commission shall be located in the City of Austin, Texas, and
16-6 shall be open daily during the usual business hours, Saturdays,
16-7 Sundays, and legal holidays excepted. The commission shall hold
16-8 meetings at its office and at such other convenient places in the
16-9 state as shall be expedient and necessary for the proper
16-10 performance of its duties.
16-11 (b) The commission shall develop and implement policies that
16-12 provide the public with a reasonable opportunity to appear before
16-13 the commission and to speak on any issue under the jurisdiction of
16-14 the commission.
16-15 SECTION 1.13. Section 1.035(a), Public Utility Regulatory
16-16 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
16-17 Legislature, Regular Session, 1995, is amended to read as follows:
16-18 (a) The commission shall prepare annually a complete and
16-19 detailed written report accounting for all funds received and
16-20 disbursed by the commission during the preceding fiscal year. The
16-21 annual report must meet the reporting requirements applicable to
16-22 financial reporting in the General Appropriations Act. <The
16-23 commission shall publish an annual report to the governor,
16-24 summarizing its proceedings, listing its receipts and the sources
16-25 of its receipts, listing its expenditures and the nature of such
16-26 expenditures, and setting forth such other information concerning
16-27 the operations of the commission and the public utility industry as
17-1 it considers of general interest.>
17-2 SECTION 1.14. Section 1.036, Public Utility Regulatory Act
17-3 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
17-4 Regular Session, 1995, is amended to read as follows:
17-5 Sec. 1.036. <CONSUMER> INFORMATION; ACCESSIBILITY. (a) The
17-6 commission shall prepare information of public <consumer> interest
17-7 describing the <regulatory> functions of the commission and
17-8 <describing> the commission's procedures by which <consumer>
17-9 complaints are filed with and resolved by the commission. The
17-10 commission shall make the information available to the <general>
17-11 public and appropriate state agencies.
17-12 (b) The commission by rule shall establish methods by which
17-13 consumers and service recipients are notified of the name, mailing
17-14 address, and telephone number of the commission for the purpose of
17-15 directing complaints to the commission.
17-16 (c) The commission shall comply with federal and state laws
17-17 related to program and facility accessibility. The commission
17-18 shall also prepare and maintain a written plan that describes how a
17-19 person who does not speak English can be provided reasonable access
17-20 to the commission's programs and services.
17-21 SECTION 1.15. Section 1.051, Public Utility Regulatory Act
17-22 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
17-23 Regular Session, 1995, is amended to read as follows:
17-24 Sec. 1.051. OFFICE OF PUBLIC UTILITY COUNSEL. (a) The
17-25 independent Office of Public Utility Counsel represents the
17-26 interests of residential and small commercial consumers.
17-27 (b) The chief executive of the office <Office of Public
18-1 Utility Counsel> is the public utility counsel, hereinafter
18-2 referred to as counsellor. The counsellor is appointed by the
18-3 governor with the advice and consent of the senate to a two-year
18-4 term that expires on February 1 of the final year of the term.
18-5 Appointment of the counsellor shall be made without regard to the
18-6 race, color, disability, sex, religion, age, or national origin of
18-7 the appointee.
18-8 (c) The counsellor shall be a resident of Texas and admitted
18-9 to the practice of law in this state who has demonstrated a strong
18-10 commitment and involvement in efforts to safeguard the rights of
18-11 the public and possesses the knowledge and experience necessary to
18-12 practice effectively in utility proceedings.
18-13 (d) A person is not eligible for appointment as counsellor
18-14 if the person or the person's spouse:
18-15 (1) is employed by or participates in the management
18-16 of a business entity or other organization regulated by the
18-17 commission or receiving funds from the commission;
18-18 (2) owns or controls, directly or indirectly, more
18-19 than a 10 percent interest or a pecuniary interest with a value
18-20 exceeding $10,000 in:
18-21 (A) a business entity or other organization
18-22 regulated by the commission or receiving funds from the commission
18-23 or the office; or
18-24 (B) any utility competitor, utility supplier, or
18-25 other entity affected by a commission decision in a manner other
18-26 than by the setting of rates for that class of customer;
18-27 (3) uses or receives a substantial amount of tangible
19-1 goods, services, or funds from the commission or the office, other
19-2 than compensation or reimbursement authorized by law for counsellor
19-3 or commission membership, attendance, or expenses; or
19-4 (4) notwithstanding Subdivision (2) of this
19-5 subsection, has an interest in a mutual fund or retirement fund in
19-6 which more than 10 percent of the fund's holdings is in a single
19-7 utility, utility competitor, or utility supplier in this state and
19-8 the person does not disclose this information to the governor,
19-9 senate, or other entity, as appropriate.
19-10 (e) A person may not serve as counsellor or act as the
19-11 general counsel for the office if the person is required to
19-12 register as a lobbyist under Chapter 305, Government Code, because
19-13 of the person's activities for compensation related to the
19-14 operation of the commission or the office.
19-15 (f) An officer, employee, or paid consultant of a trade
19-16 association in the field of public utilities may not serve as
19-17 counsellor or be an employee of the office who is exempt from the
19-18 state's position classification plan or is compensated at or above
19-19 the amount prescribed by the General Appropriations Act for step 1,
19-20 salary group 17, of the position classification salary schedule. A
19-21 person who is the spouse of an officer, manager, or paid consultant
19-22 of a trade association in the field of public utilities may not
19-23 serve as counsellor and may not be an office employee who is exempt
19-24 from the state's position classification plan or is compensated at
19-25 or above the amount prescribed by the General Appropriations Act
19-26 for step 1, salary group 17, of the position classification salary
19-27 schedule.
20-1 (g) Notwithstanding any other provision of this Act, a
20-2 person otherwise ineligible because of the application of
20-3 Subsection (d)(2) of this section may be appointed as counsellor
20-4 and may serve as counsellor if the person:
20-5 (1) notifies the attorney general and commission that
20-6 the person is ineligible because of the application of Subsection
20-7 (d)(2) of this section; and
20-8 (2) divests the person or the person's spouse of the
20-9 ownership or control before appointment, or within a reasonable
20-10 time if the person is already serving at the time Subsection (d)(2)
20-11 of this section first applies to the person.
20-12 SECTION 1.16. Subtitle C, Title I, Public Utility Regulatory
20-13 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
20-14 Legislature, Regular Session, 1995, is amended by adding Section
20-15 1.0511 to read as follows:
20-16 Sec. 1.0511. GROUNDS FOR REMOVAL. (a) It is a ground for
20-17 removal from office if the counsellor:
20-18 (1) does not have at the time of appointment the
20-19 qualifications required by Section 1.051 of this Act;
20-20 (2) does not maintain during service as counsellor the
20-21 qualifications required by Section 1.051 of this Act;
20-22 (3) violates a prohibition established by Section
20-23 1.051 or 1.0512 of this Act; or
20-24 (4) cannot discharge the counsellor's duties for a
20-25 substantial part of the term for which the counsellor is appointed
20-26 because of illness or disability.
20-27 (b) The validity of an action of the office is not affected
21-1 by the fact that it is taken when a ground for removal of the
21-2 counsellor exists.
21-3 SECTION 1.17. Subtitle C, Title I, Public Utility Regulatory
21-4 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-5 Legislature, Regular Session, 1995, is amended by adding Section
21-6 1.0512 to read as follows:
21-7 Sec. 1.0512. PROHIBITION OF EMPLOYMENT OR REPRESENTATION.
21-8 (a) The counsellor may not within two years, and an employee of
21-9 the office may not, within one year after his employment with the
21-10 office has ceased, be employed by a public utility which was in the
21-11 scope of the counsellor's or employee's official responsibility
21-12 while the counsellor or employee was associated with the office.
21-13 (b) During the time the counsellor or an employee of the
21-14 office is associated with the office or at any time after, the
21-15 counsellor or employee may not represent a person, corporation, or
21-16 other business entity before the commission or a court in a matter
21-17 in which the counsellor or employee was personally involved while
21-18 associated with the office or a matter that was within the
21-19 counsellor's or employee's official responsibility while the
21-20 counsellor or employee was associated with the office.
21-21 SECTION 1.18. Subtitle C, Title I, Public Utility Regulatory
21-22 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
21-23 Legislature, Regular Session, 1995, is amended by adding Section
21-24 1.0513 to read as follows:
21-25 Sec. 1.0513. INFORMATION; ACCESSIBILITY. (a) The office
21-26 shall prepare annually a complete and detailed written report
21-27 accounting for all funds received and disbursed by the office
22-1 during the preceding fiscal year. The annual report must meet the
22-2 reporting requirements applicable to financial reporting provided
22-3 in the General Appropriations Act.
22-4 (b) The office shall prepare information of public interest
22-5 describing the functions of the office. The office shall make the
22-6 information available to the public and appropriate state agencies.
22-7 (c) The office shall comply with federal and state laws
22-8 related to program and facility accessibility. The office shall
22-9 also prepare and maintain a written plan that describes how a
22-10 person who does not speak English can be provided reasonable access
22-11 to the office's programs and services.
22-12 SECTION 1.19. Section 1.052, Public Utility Regulatory Act
22-13 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
22-14 Regular Session, 1995, is amended to read as follows:
22-15 Sec. 1.052. INTEREST PROHIBITED. During the period of the
22-16 counsellor's employment and for a period of two years following the
22-17 termination of employment, it shall be unlawful for any person
22-18 employed as counsellor to have a direct or indirect interest in any
22-19 utility company regulated under this Act, to provide legal services
22-20 directly or indirectly to or be employed in any capacity by a
22-21 utility company regulated under this Act, its parent, or its
22-22 subsidiary companies, corporations, or cooperatives or a utility
22-23 competitor, utility supplier, or other entity affected in a manner
22-24 other than by the setting of rates for that class of customer; but
22-25 such person may otherwise engage in the private practice of law
22-26 after the termination of employment as counsellor.
22-27 SECTION 1.20. Section 1.053, Public Utility Regulatory Act
23-1 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
23-2 Regular Session, 1995, is amended to read as follows:
23-3 Sec. 1.053. EMPLOYEES. (a) The counsellor may employ such
23-4 lawyers, economists, engineers, consultants, statisticians,
23-5 accountants, clerical staff, and other employees as he or she deems
23-6 necessary to carry out the provisions of this section. All
23-7 employees shall receive such compensation as is fixed by the
23-8 legislature from the assessment imposed by Section 1.351 of this
23-9 Act.
23-10 (b) The counsellor or the counsellor's designee shall
23-11 develop an intra-agency career ladder program that addresses
23-12 opportunities for mobility and advancement for employees within the
23-13 commission. The program shall require intra-agency postings of all
23-14 positions concurrently with any public posting. The counsellor or
23-15 the counsellor's designee shall develop a system of annual
23-16 performance evaluations that are based on documented employee
23-17 performance. All merit pay for office employees must be based on
23-18 the system established under this subsection. The counsellor or
23-19 the counsellor's designee shall provide to the public utility
23-20 counsel and its employees, as often as necessary, information
23-21 regarding their qualification for office or employment under this
23-22 Act and their responsibilities under applicable laws relating to
23-23 standards of conduct for state officers or employees.
23-24 (c) The counsellor or the counsellor's designee shall
23-25 prepare and maintain a written policy statement to assure
23-26 implementation of a program of equal employment opportunity under
23-27 which all personnel transactions are made without regard to race,
24-1 color, disability, sex, religion, age, or national origin. The
24-2 policy statement must include:
24-3 (1) personnel policies that comply with Chapter 21,
24-4 Labor Code, including policies relating to recruitment, evaluation,
24-5 selection, appointment, training, and promotion of personnel;
24-6 (2) a comprehensive analysis of the office workforce
24-7 that meets federal and state guidelines;
24-8 (3) procedures by which a determination can be made
24-9 about the extent of underuse in the office workforce of all persons
24-10 for whom federal or state guidelines encourage a more equitable
24-11 balance; and
24-12 (4) reasonable methods to appropriately address the
24-13 underuse.
24-14 (d) A policy statement prepared under Subsection (c) of this
24-15 section must cover an annual period, be updated at least annually
24-16 and reviewed by the Texas Commission on Human Rights for compliance
24-17 with Subsection (c)(1), and be filed with the governor's office.
24-18 The governor's office shall deliver a biennial report to the
24-19 legislature based on the information received under this
24-20 subsection. The report may be made separately or as a part of
24-21 other biennial reports made to the legislature.
24-22 (e) The office shall provide to its employees, as often as
24-23 necessary, information regarding their qualification for office or
24-24 employment under this Act and their responsibilities under
24-25 applicable laws relating to standards of conduct for state officers
24-26 or employees.
24-27 SECTION 1.21. Section 1.054, Public Utility Regulatory Act
25-1 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
25-2 Regular Session, 1995, is amended to read as follows:
25-3 Sec. 1.054. POWERS AND DUTIES. (a) The Office of Public
25-4 Utility Counsel:
25-5 (1) shall assess the impact of utility rate changes
25-6 and other regulatory actions on residential consumers in the State
25-7 of Texas and shall be an advocate in its own name of positions most
25-8 advantageous to a substantial number of such consumers as
25-9 determined by the counsellor;
25-10 (2) may appear or intervene as a matter of right as a
25-11 party or otherwise on behalf of residential consumers, as a class,
25-12 in all proceedings before the commission that affect residential
25-13 consumers;
25-14 (3) may appear or intervene as a matter of right as a
25-15 party or otherwise on behalf of small commercial consumers, as a
25-16 class, in all proceedings where it is deemed by the counsellor that
25-17 small commercial consumers are in need of representation;
25-18 (4) may initiate or intervene as a matter of right or
25-19 otherwise appear in any judicial proceedings involving or arising
25-20 out of any action taken by an administrative agency in a proceeding
25-21 in which the counsellor was authorized to appear;
25-22 (5) may have access as any party, other than staff, to
25-23 all records gathered by the commission under the authority of
25-24 Subsection (a) of Section 1.203 of this Act;
25-25 (6) may obtain discovery of any nonprivileged matter
25-26 which is relevant to the subject matter involved in any proceeding
25-27 or petition before the commission;
26-1 (7) may represent individual residential and small
26-2 commercial consumers with respect to their disputed complaints
26-3 concerning utility services unresolved before the commission; and
26-4 (8) may recommend legislation to the legislature which
26-5 in its judgment would positively affect the interests of
26-6 residential and small commercial consumers.
26-7 (b) <Nothing in this section shall be construed as in any
26-8 way limiting the authority of the commission to represent
26-9 residential or small commercial consumers.>
26-10 <(c)> The appearance of the counsellor in any proceeding in
26-11 no way precludes the appearance of other parties on behalf of
26-12 residential ratepayers or small commercial consumers. The
26-13 counsellor may not be grouped with any other parties.
26-14 SECTION 1.22. Section 1.101, Public Utility Regulatory Act
26-15 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
26-16 Regular Session, 1995, is amended to read as follows:
26-17 Sec. 1.101. GENERAL POWER; RULES; HEARINGS; AUDITS.
26-18 (a) The commission has the general power to regulate and supervise
26-19 the business of every public utility within its jurisdiction and to
26-20 do all things, whether specifically designated in this Act or
26-21 implied herein, necessary and convenient to the exercise of this
26-22 power and jurisdiction.
26-23 (b) The commission shall make and enforce rules reasonably
26-24 required in the exercise of its powers and jurisdiction, including
26-25 rules governing practice and procedure before the commission and,
26-26 as applicable, practice and procedure before the utility division
26-27 of the State Office of Administrative Hearings. The commission
27-1 shall adopt rules authorizing an administrative law judge to:
27-2 (1) limit the amount of time that a party may have to
27-3 present its case;
27-4 (2) limit the number of requests for information that
27-5 a party may make in a contested case;
27-6 (3) require a party to a contested case to identify
27-7 contested issues and facts before the hearing begins and to limit
27-8 cross-examination to only those issues and facts and to any new
27-9 issues that may arise as a result of the discovery process; or
27-10 (4) group parties, other than the office, that have
27-11 the same position on an issue to facilitate cross-examination on
27-12 that issue, provided that each party in a group is entitled to
27-13 present that party's witnesses for cross-examination during the
27-14 hearing.
27-15 (c) Rules adopted under Subsection (b) of this section must
27-16 ensure that all parties receive due process.
27-17 (d) The commission may call and hold hearings, administer
27-18 oaths, receive evidence at hearings, issue subpoenas to compel the
27-19 attendance of witnesses and the production of papers and documents,
27-20 and make findings of fact and decisions with respect to
27-21 administering the provisions of this Act or the rules, orders, or
27-22 other actions of the commission.
27-23 (e) Hearings in contested cases not conducted by one or more
27-24 commissioners shall be conducted by the utility division of the
27-25 State Office of Administrative Hearings. The <(d) Notwithstanding
27-26 any other provision of this Act or other law, in proceedings other
27-27 than those involving major rate changes, the> commission may
28-1 delegate to the utility division of the State Office of
28-2 Administrative Hearings <an administrative law judge or hearings
28-3 examiner> the authority to make a final decision and to issue
28-4 findings of fact, conclusions of law, and other necessary orders in
28-5 a proceeding in which there is no contested issue of fact or law.
28-6 The commission by rule shall define the procedures by which it
28-7 delegates final decision-making authority authorized by this
28-8 section. For review purposes the final decision of the
28-9 administrative law judge <or hearings examiner> has the same effect
28-10 as a final decision of the commission unless a commissioner
28-11 requests formal review of the decision.
28-12 SECTION 1.23. Subtitle D, Title I, Public Utility Regulatory
28-13 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
28-14 Legislature, Regular Session, 1995, is amended by adding Section
28-15 1.104 to read as follows:
28-16 Sec. 1.104. SETTLEMENTS. (a) The commission by rule shall
28-17 adopt procedures governing the use of settlements to resolve
28-18 contested cases.
28-19 (b) The rules shall ensure that:
28-20 (1) each party retains the right to:
28-21 (A) have a full hearing before the commission on
28-22 issues that remain in dispute; and
28-23 (B) judicial review of issues that remain in
28-24 dispute;
28-25 (2) an issue of fact raised by a nonsettling party
28-26 cannot be waived by a settlement or stipulation of the other
28-27 parties; and
29-1 (3) the nonsettling party may use the issue of fact
29-2 raised by that party as the basis for judicial review.
29-3 SECTION 1.24. Section 1.202, Public Utility Regulatory Act
29-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
29-5 Regular Session, 1995, is amended to read as follows:
29-6 Sec. 1.202. POWERS OF COMMISSION. (a) The commission shall
29-7 have the power to:
29-8 (1) require that public utilities report to it such
29-9 information relating to transactions between themselves and
29-10 affiliated interests both within and without the State of Texas to
29-11 the extent that those transactions are subject to the jurisdiction
29-12 of the commission <as it may consider useful in the administration
29-13 of this Act>;
29-14 (2) establish forms for all reports;
29-15 (3) determine the time for reports and the frequency
29-16 with which any reports are to be made;
29-17 (4) require that any reports be made under oath;
29-18 (5) require that a copy of any contract or arrangement
29-19 between any public utility and any affiliated interest be filed
29-20 with it. It may require any such contract or arrangement not in
29-21 writing to be reduced to writing and filed with it;
29-22 (6) require that a copy of any report filed with any
29-23 federal agency or any governmental agency or body of any other
29-24 state be filed with it; and
29-25 (7) require that a copy of annual reports showing all
29-26 payments of compensation (other than salary or wages subject to the
29-27 withholding of federal income tax) to residents of Texas, or with
30-1 respect to legal, administrative, or legislative matters in Texas,
30-2 or for representation before the Texas Legislature or any
30-3 governmental agency or body be filed with it.
30-4 (b) <The railroad commission shall have the power to review
30-5 and approve, for purposes of the Outer Continental Shelf Lands Act
30-6 Amendments of 1978 and any other federal authorities, applications
30-7 by gas utilities for the purchase of natural gas from producing
30-8 affiliates.>
30-9 <(c)> On the request of the governing body of any
30-10 municipality, the commission may provide sufficient staff members
30-11 to advise and consult with such municipality on any pending matter.
30-12 SECTION 1.25. Section 1.271, Public Utility Regulatory Act
30-13 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
30-14 Regular Session, 1995, is amended to read as follows:
30-15 Sec. 1.271. JURISDICTION OVER AFFILIATED INTERESTS. The
30-16 commission shall have jurisdiction over <affiliated interests
30-17 having> transactions between <with> public utilities under the
30-18 jurisdiction of the commission and affiliated interests to the
30-19 extent of access to all accounts and records of such affiliated
30-20 interests relating to such transactions, including but in no way
30-21 limited to accounts and records of joint or general expenses, any
30-22 portion of which may be applicable to such transactions. Any
30-23 accounts or records obtained by the commission related to sales of
30-24 electrical energy at wholesale by an affiliated interest to the
30-25 public utility shall be confidential and not subject to disclosure
30-26 under Chapter 552, Government Code.
30-27 SECTION 1.26. Subtitle I, Title I, Public Utility Regulatory
31-1 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
31-2 Legislature, Regular Session, 1995, is amended by adding Section
31-3 1.3215 to read as follows:
31-4 Sec. 1.3215. ADMINISTRATIVE PENALTY. (a) The commission
31-5 may impose an administrative penalty against a person regulated
31-6 under this Act who violates this Act or a rule or order adopted
31-7 under this Act.
31-8 (b) The penalty for a violation may be in an amount not to
31-9 exceed $5,000. Each day a violation continues or occurs is a
31-10 separate violation for purposes of imposing a penalty.
31-11 (c) The amount of the penalty shall be based on:
31-12 (1) the seriousness of the violation, including the
31-13 nature, circumstances, extent, and gravity of any prohibited acts,
31-14 and the hazard or potential hazard created to the health, safety,
31-15 or economic welfare of the public;
31-16 (2) the economic harm to property or the environment
31-17 caused by the violation;
31-18 (3) the history of previous violations;
31-19 (4) the amount necessary to deter future violations;
31-20 (5) efforts to correct the violation; and
31-21 (6) any other matter that justice may require.
31-22 (d) If the executive director determines that a violation
31-23 has occurred, the executive director may issue to the commission a
31-24 report that states the facts on which the determination is based
31-25 and the director's recommendation on the imposition of a penalty,
31-26 including a recommendation on the amount of the penalty.
31-27 (e) Within 14 days after the date the report is issued, the
32-1 executive director shall given written notice of the report to the
32-2 person. The notice may be given by certified mail. The notice
32-3 must include a brief summary of the alleged violation and a
32-4 statement of the amount of the recommended penalty and must inform
32-5 the person that the person has a right to a hearing on the
32-6 occurrence of the violation, the amount of the penalty, or both the
32-7 occurrence of the violation and the amount of the penalty.
32-8 (f) Within 20 days after the date the person receives the
32-9 notice, the person in writing may accept the determination and
32-10 recommended penalty of the executive director or may make a written
32-11 request for a hearing on the occurrence of the violation, the
32-12 amount of the penalty, or both the occurrence of the violation and
32-13 the amount of the penalty.
32-14 (g) If the person accepts the determination and recommended
32-15 penalty of the executive director, the commission by order shall
32-16 approve the determination and impose the recommended penalty.
32-17 (h) If the person requests a hearing or fails to respond
32-18 timely to the notice, the executive director shall set a hearing
32-19 and give notice of the hearing to the person. The hearing shall be
32-20 held by an administrative law judge of the State Office of
32-21 Administrative Hearings. The administrative law judge shall make
32-22 findings of fact and conclusions of law and promptly issue to the
32-23 commission a proposal for a decision about the occurrence of the
32-24 violation and the amount of a proposed penalty. Based on the
32-25 findings of fact, conclusions of law, and proposal for a decision,
32-26 the commission by order may find that a violation has occurred and
32-27 impose a penalty or may find that no violation occurred.
33-1 (i) The notice of the commission's order given to the person
33-2 under Chapter 2001, Government Code, must include a statement of
33-3 the right of the person to judicial review of the order.
33-4 (j) Within 30 days after the date the commission's order is
33-5 final as provided by Section 2001.144, Government Code, the person
33-6 shall:
33-7 (1) pay the amount of the penalty;
33-8 (2) pay the amount of the penalty and file a petition
33-9 for judicial review contesting the occurrence of the violation, the
33-10 amount of the penalty, or both the occurrence of the violation and
33-11 the amount of the penalty; or
33-12 (3) without paying the amount of the penalty, file a
33-13 petition for judicial review contesting the occurrence of the
33-14 violation, the amount of the penalty, or both the occurrence of the
33-15 violation and the amount of the penalty.
33-16 (k) Within the 30-day period, a person who acts under
33-17 Subsection (j)(3) of this section may:
33-18 (1) stay enforcement of the penalty by:
33-19 (A) paying the amount of the penalty to the
33-20 court for placement in an escrow account; or
33-21 (B) giving to the court a supersedeas bond that
33-22 is approved by the court for the amount of the penalty and that is
33-23 effective until all judicial review of the commission's order is
33-24 final; or
33-25 (2) request the court to stay enforcement of the
33-26 penalty by:
33-27 (A) filing with the court a sworn affidavit of
34-1 the person stating that the person is financially unable to pay the
34-2 amount of the penalty and is financially unable to give the
34-3 supersedeas bond; and
34-4 (B) giving a copy of the affidavit to the
34-5 executive director by certified mail.
34-6 (l) The executive director, on receipt of a copy of an
34-7 affidavit under Subsection (k)(2) of this section, may file with
34-8 the court, within five days after the date the copy is received, a
34-9 contest to the affidavit. The court shall hold a hearing on the
34-10 facts alleged in the affidavit as soon as practicable and shall
34-11 stay the enforcement of the penalty on finding that the alleged
34-12 facts are true. The person who files an affidavit has the burden
34-13 of proving that the person is financially unable to pay the amount
34-14 of the penalty and to give a supersedeas bond.
34-15 (m) If the person does not pay the amount of the penalty and
34-16 the enforcement of the penalty is not stayed, the executive
34-17 director may refer the matter to the attorney general for
34-18 collection of the amount of the penalty.
34-19 (n) Judicial review of the order of the commission:
34-20 (1) is instituted by filing a petition as provided by
34-21 Subchapter G, Chapter 2001, Government Code; and
34-22 (2) is under the substantial evidence rule.
34-23 (o) If the court sustains the occurrence of the violation,
34-24 the court may uphold or reduce the amount of the penalty and order
34-25 the person to pay the full or reduced amount of the penalty. If
34-26 the court does not sustain the occurrence of the violation, the
34-27 court shall order that no penalty is owed.
35-1 (p) When the judgment of the court becomes final, the court
35-2 shall proceed under this subsection. If the person paid the amount
35-3 of the penalty and if that amount is reduced or is not upheld by
35-4 the court, the court shall order that the appropriate amount plus
35-5 accrued interest be remitted to the person. The rate of the
35-6 interest is the rate charged on loans to depository institutions by
35-7 the New York Federal Reserve Bank, and the interest shall be paid
35-8 for the period beginning on the date the penalty was paid and
35-9 ending on the date the penalty is remitted. If the person gave a
35-10 supersedeas bond and if the amount of the penalty is not upheld by
35-11 the court, the court shall order the release of the bond. If the
35-12 person gave a supersedeas bond and if the amount of the penalty is
35-13 reduced, the court shall order the release of the bond after the
35-14 person pays the amount.
35-15 (q) A penalty collected under this section shall be remitted
35-16 to the comptroller for deposit in the general revenue fund.
35-17 (r) All proceedings under this section are subject to
35-18 Chapter 2001, Government Code.
35-19 SECTION 1.27. Section 1.351(b), Public Utility Regulatory
35-20 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
35-21 Legislature, Regular Session, 1995, is amended to read as follows:
35-22 (b) The legislature may <commission shall, subject to the
35-23 approval of the legislature,> adjust this assessment to provide a
35-24 level of income sufficient to fund the commission and the office of
35-25 public utility counsel.
35-26 SECTION 1.28. Section 1.354, Public Utility Regulatory Act
35-27 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
36-1 Regular Session, 1995, is amended to read as follows:
36-2 Sec. 1.354. COLLECTION AND PAYMENT INTO GENERAL REVENUE
36-3 FUND. (a) All fees, penalties, and interest paid under the
36-4 provisions of Sections 1.351, <and> 1.352, and 1.353 of this Act
36-5 shall be collected by the comptroller of public accounts and paid
36-6 into the general revenue fund. <The commission shall notify the
36-7 comptroller of public accounts of any adjustment of the assessment
36-8 imposed in Section 1.351 when made.>
36-9 (b) All money paid to the commission or to the office under
36-10 this Act is subject to Subchapter F, Chapter 404, Government Code.
36-11 SECTION 1.29. Sections 1.401(a) and (b), Public Utility
36-12 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
36-13 74th Legislature, Regular Session, 1995, are amended to read as
36-14 follows:
36-15 (a) Any affected person may complain to the regulatory
36-16 authority in writing setting forth any act or thing done or omitted
36-17 to be done by any public utility in violation or claimed violation
36-18 of any law which the regulatory authority has jurisdiction to
36-19 administer or of any order, ordinance, rule, or regulation of the
36-20 regulatory authority. The commission shall keep <an> information
36-21 <file> about each complaint filed with the commission <relating to
36-22 a utility>. The commission shall retain the information <file> for
36-23 a reasonable period. The information shall include:
36-24 (1) the date the complaint is received;
36-25 (2) the name of the complainant;
36-26 (3) the subject matter of the complaint;
36-27 (4) a record of all persons contacted in relation to
37-1 the complaint;
37-2 (5) a summary of the results of the review or
37-3 investigation of the complaint; and
37-4 (6) for complaints for which the commission took no
37-5 action, an explanation of the reason the complaint was closed
37-6 without action.
37-7 (b) The commission shall keep a file about each <If a>
37-8 written complaint <is> filed with the commission. The commission
37-9 shall provide to the person filing the complaint and to the persons
37-10 or entities complained about the commission's policies and
37-11 procedures pertaining to complaint investigation and resolution.
37-12 The <relating to a utility, the> commission, at least <as
37-13 frequently as> quarterly and until final disposition of the
37-14 complaint, shall notify the person filing <parties to> the
37-15 complaint and each person or entity complained about of the status
37-16 of the complaint unless the notice would jeopardize an undercover
37-17 investigation.
37-18 SECTION 1.30. Subchapter C, Chapter 2003, Government Code,
37-19 is amended by adding Section 2003.047 to read as follows:
37-20 Sec. 2003.047. UTILITY DIVISION. (a) The office shall
37-21 establish a utility division to perform the contested case hearings
37-22 for the Public Utility Commission of Texas as prescribed by the
37-23 Public Utility Regulatory Act of 1995 and other applicable law.
37-24 (b) The utility division shall conduct hearings relating to
37-25 contested cases before the commission, other than a hearing
37-26 conducted by one or more commissioners. The commission by rule may
37-27 delegate the responsibility to hear any other matter before the
38-1 commission if consistent with the duties and responsibilities of
38-2 the division.
38-3 (c) Only an administrative law judge in the utility division
38-4 may conduct a hearing on behalf of the commission. An
38-5 administrative law judge in the utility division may conduct
38-6 hearings for other state agencies as time allows. The office may
38-7 transfer an administrative law judge into the division on a
38-8 temporary or permanent basis and may contract with qualified
38-9 individuals to serve as temporary administrative law judges as
38-10 necessary.
38-11 (d) To be eligible to preside at a hearing, an
38-12 administrative law judge, regardless of temporary or permanent
38-13 status, must be licensed to practice law in this state and have not
38-14 less than five years of general experience or three years of
38-15 experience in utility regulatory law.
38-16 (e) At the time the office receives jurisdiction of a
38-17 proceeding, the commission shall provide to the administrative law
38-18 judge a list of issues or areas that must be addressed. In
38-19 addition, the commission may identify and provide to the
38-20 administrative law judge at any time additional issues or areas
38-21 that must be addressed.
38-22 (f) The office and the commission shall jointly adopt rules
38-23 providing for certification to the commission of an issue that
38-24 involves an ultimate finding of compliance with or satisfaction of
38-25 a statutory standard the determination of which is committed to the
38-26 discretion or judgment of the commission by law. The rules must
38-27 address, at a minimum, the issues that are appropriate for
39-1 certification and the procedure to be used in certifying the issue.
39-2 Each agency shall publish the jointly adopted rules.
39-3 (g) Notwithstanding Section 2001.058, the commission may
39-4 change a finding of fact or conclusion of law made by the
39-5 administrative law judge or vacate or modify an order issued by the
39-6 administrative law judge only if the commission:
39-7 (1) determines that the administrative law judge:
39-8 (A) did not properly apply or interpret
39-9 applicable law, commission rules or policies, or prior
39-10 administrative decisions; or
39-11 (B) issued a finding of fact that is not
39-12 supported by a preponderance of the evidence; or
39-13 (2) determines that a commission policy or a prior
39-14 administrative decision on which the administrative law judge
39-15 relied is incorrect or should be changed.
39-16 (h) The commission shall state in writing the specific
39-17 reason and legal basis for its determination under Subsection (g).
39-18 (i) An administrative law judge, on the judge's own motion
39-19 or on motion of a party and after notice and an opportunity for a
39-20 hearing, may impose appropriate sanctions as provided by Subsection
39-21 (j) against a party or its representative for:
39-22 (1) filing a motion or pleading that is groundless and
39-23 brought:
39-24 (A) in bad faith;
39-25 (B) for the purpose of harassment; or
39-26 (C) for any other improper purpose, such as to
39-27 cause unnecessary delay or needless increase in the cost of the
40-1 proceeding;
40-2 (2) abuse of the discovery process in seeking, making,
40-3 or resisting discovery; or
40-4 (3) failure to obey an order of the administrative law
40-5 judge or the commission.
40-6 (j) A sanction imposed under Subsection (i) may include, as
40-7 appropriate and justified, issuance of an order:
40-8 (1) disallowing further discovery of any kind or of a
40-9 particular kind by the offending party;
40-10 (2) charging all or any part of the expenses of
40-11 discovery against the offending party or its representative;
40-12 (3) holding that designated facts be deemed admitted
40-13 for purposes of the proceeding;
40-14 (4) refusing to allow the offending party to support
40-15 or oppose a designated claim or defense or prohibiting the party
40-16 from introducing designated matters in evidence;
40-17 (5) disallowing in whole or in part requests for
40-18 relief by the offending party and excluding evidence in support of
40-19 such requests;
40-20 (6) punishing the offending party or its
40-21 representative for contempt to the same extent as a district court;
40-22 (7) requiring the offending party or its
40-23 representative to pay, at the time ordered by the administrative
40-24 law judge, the reasonable expenses, including attorney's fees,
40-25 incurred by other parties because of the sanctionable behavior; and
40-26 (8) striking pleadings or testimony, or both, in whole
40-27 or in part, or staying further proceedings until the order is
41-1 obeyed.
41-2 SECTION 1.31. (a) A task force is established to administer
41-3 the transfer of the hearings division from the Public Utility
41-4 Commission of Texas to the State Office of Administrative Hearings.
41-5 The task force is composed of:
41-6 (1) the governor or the governor's designee;
41-7 (2) the Legislative Budget Board or the board's
41-8 designee;
41-9 (3) the chairman of the Public Utility Commission of
41-10 Texas;
41-11 (4) the public utility counsel; and
41-12 (5) the chief administrative law judge of the State
41-13 Office of Administrative Hearings.
41-14 (b) The governor or the governor's designee is the presiding
41-15 officer of the task force.
41-16 (c) The task force shall:
41-17 (1) determine the personnel, equipment, data,
41-18 facilities, and other items that will be transferred under this Act
41-19 and the schedule for the transfers; and
41-20 (2) mediate and resolve disputes between the
41-21 respective agencies relating to a transfer.
41-22 (d) After the transfers have been completed, the task force
41-23 shall prepare a written report detailing the specifics of the
41-24 transfers and shall submit the report to the governor and the
41-25 legislature.
41-26 (e) In determining a transfer under this Act, the task force
41-27 shall ensure that the transfer does not adversely affect a
42-1 proceeding before the Public Utility Commission of Texas or the
42-2 rights of the parties to the proceeding.
42-3 (f) This section takes effect immediately.
42-4 SECTION 1.32. (a) On September 1, 1995, all personnel,
42-5 including hearings examiners and administrative law judges,
42-6 equipment, data, facilities, and other items of the hearings
42-7 division of the Public Utility Commission of Texas, other than the
42-8 personnel, equipment, data, facilities, and other items of the
42-9 central records office, are transferred to the utility division of
42-10 the State Office of Administrative Hearings. Until September 1,
42-11 1996, an employee transferred to the utility division may be
42-12 terminated or subject to salary reduction only for cause and only
42-13 in relation to poor performance or unacceptable conduct. A
42-14 hearings examiner transferred to the State Office of Administrative
42-15 Hearings becomes an administrative law judge on the date of
42-16 transfer.
42-17 (b) A hearings examiner or administrative law judge
42-18 transferred from the Public Utility Commission of Texas to the
42-19 State Office of Administrative Hearings shall continue to hear any
42-20 case assigned to the person as if the transfer had not occurred.
42-21 (c) The changes in law made by this Act that relate to the
42-22 procedures governing a hearing before the utility division of the
42-23 State Office of Administrative Hearings apply only to a case that
42-24 is filed on or after September 1, 1995. In addition, the
42-25 procedures prescribed by the provisions amended by this Act shall
42-26 continue to be used in a hearing as those provisions existed on
42-27 August 31, 1995. The former law is continued in effect for those
43-1 purposes.
43-2 (d) The Public Utility Commission of Texas is not required
43-3 by this Act or amendments made by this Act to adopt new rules
43-4 governing practice and procedure before the Public Utility
43-5 Commission of Texas or the utility division of the State Office of
43-6 Administrative Hearings. The rules in effect on the effective date
43-7 of this Act remain in effect until amended or repealed as required
43-8 by law. Any rules adopted after the effective date of this Act
43-9 governing practice and procedure before the utility division of the
43-10 State Office of Administrative Hearings must be adopted jointly by
43-11 that office and the commission.
43-12 SECTION 1.33. Section 1.3215, Public Utility Regulatory Act
43-13 of 1995, as added by this Act, applies only to a violation
43-14 committed on or after the effective date of this Act. A violation
43-15 committed before the effective date of this Act is governed by the
43-16 law in effect when the violation occurred, and that law is
43-17 continued in effect for that purpose.
43-18 SECTION 1.34. Section 1.104, Public Utility Regulatory Act
43-19 of 1995, as added by this Act, applies only to a proceeding for
43-20 which a final order has not been issued before the effective date
43-21 of this Act and does not apply to an electric utility merger
43-22 proceeding filed before January 1, 1995, in which a final order has
43-23 not been issued. Except as otherwise provided by this section, on
43-24 or after the effective date of this Act, the Public Utility
43-25 Commission of Texas may not approve a settlement unless the
43-26 settlement has been reached in accordance with rules adopted under
43-27 Section 1.104, Public Utility Regulatory Act of 1995, as added by
44-1 this Act.
44-2 SECTION 1.35. The changes in law made by this Act relating
44-3 to the requirements for membership on the Public Utility Commission
44-4 of Texas, to the requirements for service as public utility
44-5 counsel, or to employment as executive director or general counsel
44-6 of the commission apply only to a person appointed or hired, as
44-7 appropriate, on or after the effective date of this Act and do not
44-8 affect the entitlement of a member serving on the commission on
44-9 August 31, 1995, to continue to hold office for the remainder of
44-10 the term for which the person was appointed or the ability of a
44-11 person serving as public utility counsel, executive director, or
44-12 general counsel on August 31, 1995, to continue to hold that
44-13 position.
44-14 ARTICLE 2
44-15 SECTION 2.01. Subtitle A, Title II, Public Utility
44-16 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
44-17 74th Legislature, Regular Session, 1995, is amended by amending
44-18 Section 2.001 and adding Sections 2.0011 and 2.0012 to read as
44-19 follows:
44-20 Sec. 2.001. LEGISLATIVE POLICY AND PURPOSE. This title is
44-21 enacted to protect the public interest inherent in the rates and
44-22 services of public utilities. The legislature finds that public
44-23 utilities are by definition monopolies in many of the services they
44-24 provide and in many of the areas they serve, and that therefore the
44-25 normal forces of competition that operate to regulate prices in a
44-26 free enterprise society do not always operate, and that therefore
44-27 utility rates, operations, and services are regulated by public
45-1 agencies where competition does not operate, with the objective
45-2 that this regulation shall operate as a substitute for competition.
45-3 The purpose of this title is to establish a comprehensive
45-4 regulatory system that is adequate to the task of regulating public
45-5 utilities as defined in this title where the forces of competition
45-6 do not operate, to assure rates, operations, and services that are
45-7 just and reasonable to consumers and to the utilities. While
45-8 retail electric service maintains the attributes that make
45-9 regulation of monopolies appropriate, the public interest warrants
45-10 a competitive wholesale electric market.
45-11 Sec. 2.0011. DEFINITIONS. In this title:
45-12 (1) "Public <, "public> utility" or "utility" means
45-13 any person, corporation, river authority, cooperative corporation,
45-14 or any combination thereof, other than a municipal corporation, or
45-15 their lessees, trustees, and receivers, now or hereafter owning or
45-16 operating for compensation in this state equipment or facilities
45-17 for producing, generating, transmitting, distributing, selling, or
45-18 furnishing electricity in this state (hereinafter "electric
45-19 utility"); provided, however, that this definition may not be
45-20 construed to apply to or include a qualifying facility <small power
45-21 producer or qualifying cogenerator, as defined in Sections 3(17)(D)
45-22 and 3(18)(C) of the Federal Power Act, as amended (16 U.S.C.
45-23 Sections 796(17)(D) and 796(18)(C))>. The term does not include an
45-24 exempt wholesale generator, a power marketer, a river authority or
45-25 nonprofit corporation as prescribed by Section 2.0012 of this Act,
45-26 or any person or corporation not otherwise a public utility that:
45-27 (A) <(1)> furnishes the services or commodity
46-1 described in this section only to itself<, its employees, or its
46-2 tenants as an incident of such employee service or tenancy,> when
46-3 such service or commodity is not resold to or used by others and is
46-4 not transmitted beyond the property where the service or commodity
46-5 originates;
46-6 (B) <(2)> owns or operates in this state
46-7 equipment or facilities for producing, generating, transmitting,
46-8 distributing, selling, or furnishing electric energy to an electric
46-9 utility, if the equipment or facilities are otherwise used only
46-10 <primarily> for the production and generation of electric energy
46-11 for consumption by the person or corporation; or
46-12 (C) <(3)> owns or operates in this state a
46-13 recreational vehicle park that provides metered electric service in
46-14 accordance with Article 1446d-2, Revised Statutes, provided that a
46-15 recreational vehicle park owner is considered a public utility if
46-16 the owner fails to comply with Article 1446d-2, Revised Statutes,
46-17 with regard to the metered sale of electricity at the recreational
46-18 vehicle park.
46-19 (2) "Exempt wholesale generator" means a person that
46-20 is engaged, directly or indirectly through one or more affiliates,
46-21 exclusively in the business of owning, operating, or both owning
46-22 and operating all or part of one or more facilities for the
46-23 generation of electric energy and selling electric energy at
46-24 wholesale and that:
46-25 (A) does not own facilities for the transmission
46-26 of electricity, other than essential interconnection facilities;
46-27 (B) is determined, under standards established
47-1 by the commission, to not exercise market power in the sale of
47-2 electricity; and
47-3 (C) has applied to the Federal Energy Regulatory
47-4 Commission for a determination under Section 32, Public Utility
47-5 Holding Company Act (15 U.S.C. Section 79z-5a), or has registered
47-6 as an exempt wholesale generator as required by this Act.
47-7 (3) "Power marketer" means a person that:
47-8 (A) becomes owner of electric energy in this
47-9 state for the purpose of buying and selling the electric energy at
47-10 wholesale;
47-11 (B) does not own generation, transmission, or
47-12 distribution facilities in this state;
47-13 (C) does not have a certificated service area;
47-14 and
47-15 (D) has been granted authority by the Federal
47-16 Energy Regulatory Commission to sell electric energy at
47-17 market-based rates or has registered as a power broker under this
47-18 Act.
47-19 (4) "Qualifying cogenerator" and "qualifying small
47-20 power producer" have the meanings assigned by Sections 3(18)(C) and
47-21 3(17)(D), Federal Power Act (16 U.S.C. Sections 796(18)(C) and
47-22 796(17)(D)).
47-23 (5) "Qualifying facility" means a qualifying
47-24 cogenerator or qualifying small power producer.
47-25 Sec. 2.0012. CERTAIN RIVER AUTHORITIES. A river authority
47-26 operating one or more steam generating plants or a nonprofit
47-27 corporation acting on behalf of such a river authority is not a
48-1 public utility to the extent that the river authority or nonprofit
48-2 corporation furnishes electricity exclusively at wholesale and not
48-3 directly to ultimate consumers. The river authority or nonprofit
48-4 corporation may finance, construct, rebuild, repower, and use new
48-5 and existing power plants, equipment, transmission lines, and other
48-6 assets for the sale of electric power and energy exclusively at
48-7 wholesale to any purchaser at any location, within or outside the
48-8 area served by the river authority on January 1, 1975, without
48-9 regard to any restrictions in any other law, except that:
48-10 (1) this section does not authorize the river
48-11 authority to acquire, install, construct, enlarge, make additions
48-12 to, or operate steam generating plants the aggregate capacity of
48-13 which is more than 5,000 megawatts, as may be provided in the river
48-14 authority's enabling legislation; and
48-15 (2) a river authority subject to this section may
48-16 provide retail service only to retail customers served by the river
48-17 authority on September 1, 1995.
48-18 SECTION 2.02. Subtitle A, Title II, Public Utility
48-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
48-20 74th Legislature, Regular Session, 1995, is amended by adding
48-21 Section 2.003 to read as follows:
48-22 Sec. 2.003. SCOPE OF COMPETITION. Before January 15 of each
48-23 odd-numbered year, the commission shall report to the legislature
48-24 on the scope of competition in electric markets and the impact of
48-25 competition and industry restructuring on customers in both
48-26 competitive and noncompetitive markets. The report shall include
48-27 an assessment of the impact of competition on the rates and
49-1 availability of electric services for residential and small
49-2 commercial customers and a summary of commission actions over the
49-3 preceding two years that reflect changes in the scope of
49-4 competition in regulated electric markets. The report shall also
49-5 include recommendations to the legislature for further legislation
49-6 that the commission finds appropriate to promote the public
49-7 interest in the context of a partially competitive electric market.
49-8 SECTION 2.03. Section 2.051, Public Utility Regulatory Act
49-9 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
49-10 Regular Session, 1995, is amended to read as follows:
49-11 Sec. 2.051. INTEGRATED RESOURCE PLANNING. (a) The
49-12 commission by rule shall develop an integrated resource planning
49-13 process to provide reliable energy service at the lowest reasonable
49-14 cost.
49-15 (b) The commission by rule shall adopt and periodically
49-16 update a statewide integrated resource plan that includes the
49-17 commission's long-term resource planning goals. The commission
49-18 shall send a report on the plan to the governor when it adopts or
49-19 revises the plan and notify each public utility of the approval of
49-20 the statewide plan. The commission shall make the report available
49-21 to the public.
49-22 (c) The report on the statewide plan shall include:
49-23 (1) historical data for electric consumption statewide
49-24 and by utility;
49-25 (2) historical data for electric generation by utility
49-26 and by type of capacity, including alternative energy sources;
49-27 (3) an inventory of generation capacity statewide and
50-1 by utility;
50-2 (4) quantitative data on demand-side management
50-3 programs to the extent the commission determines necessary;
50-4 (5) each generating utility's forecast without
50-5 adjustment;
50-6 (6) the commission's long-term resource planning goals
50-7 included in the plan;
50-8 (7) a projection of the need for electric services;
50-9 (8) a description of the approved individual
50-10 integrated resource plans of public utilities; and
50-11 (9) an assessment of transmission needs.
50-12 (d) In prescribing the requirements under this section,
50-13 including reporting requirements, the commission shall consider and
50-14 recognize the different generating capacities of small and large
50-15 utilities.
50-16 (e) Every three years, a generating public utility shall
50-17 submit to the commission a preliminary integrated resource plan
50-18 covering a 10-year period. Nongenerating utilities are not
50-19 required to submit an integrated resource plan if they certify to
50-20 the commission that they have participated, or plan to participate,
50-21 in a resource plan of one or more of their suppliers. The
50-22 commission by rule:
50-23 (1) shall:
50-24 (A) prescribe a staggered schedule for the
50-25 submission of plans by utilities;
50-26 (B) prescribe the form and manner in which a
50-27 plan must be submitted;
51-1 (C) adopt filing requirements and schedules; and
51-2 (D) prescribe the methods by which a utility may
51-3 recover supply-side and demand-side costs; and
51-4 (2) may:
51-5 (A) define the scope and nature of public
51-6 participation in the development of the plan; and
51-7 (B) establish the general guidelines to be used
51-8 by utilities in evaluating and selecting or rejecting resources,
51-9 including procedures governing the solicitation process.
51-10 (f) A preliminary plan submitted under this section must
51-11 include:
51-12 (1) the utility's forecast of future demands;
51-13 (2) an estimate of the energy savings and demand
51-14 reduction the utility can achieve during the 10-year period by use
51-15 of demand-side management resources and the range of possible costs
51-16 for those resources;
51-17 (3) if additional supply-side resources are needed to
51-18 meet future demand, an estimate of:
51-19 (A) the amount and operational characteristics
51-20 of the additional capacity needed;
51-21 (B) the types of viable supply-side resources
51-22 for meeting that need; and
51-23 (C) the range of probable costs of those
51-24 resources;
51-25 (4) if necessary, proposed requests for proposals for
51-26 demand-side or supply-side resources, or both;
51-27 (5) the specific criteria the utility will use to
52-1 evaluate and select or reject those resources, which criteria may
52-2 deviate from the general guidelines on a showing of good cause;
52-3 (6) the methods by which the utility intends to
52-4 monitor those resources after selection;
52-5 (7) the method by which the utility intends to
52-6 allocate costs;
52-7 (8) any proposed incentive factors; and
52-8 (9) any other information the commission requires.
52-9 (g) After a utility files its preliminary plan, the
52-10 commission on its own motion or on the motion of the utility or of
52-11 an affected person shall convene a public hearing on the adequacy
52-12 and merits of the preliminary plan. At the hearing, any interested
52-13 person may intervene, present evidence, and cross-examine witnesses
52-14 regarding the contents and adequacy of the preliminary plan.
52-15 Discovery is limited to an issue relating to the development of the
52-16 preliminary plan, a fact issue included in the preliminary plan,
52-17 and other issues the commission is required to decide relating to
52-18 the preliminary plan. A commission hearing is not required for a
52-19 preliminary plan filed by a river authority or generating electric
52-20 cooperative that does not intend to build a new generating plant or
52-21 for a preliminary plan filed by a municipally owned public utility.
52-22 (h) After the hearing, the commission shall determine
52-23 whether:
52-24 (1) the utility's preliminary plan is based on
52-25 substantially accurate data and an adequate method of forecasting;
52-26 (2) the utility's preliminary plan identifies and
52-27 takes into account any present and projected reductions in the
53-1 demand for energy that may result from cost-effective measures to
53-2 improve conservation and energy efficiency in various customer
53-3 classes of the area being served;
53-4 (3) if additional supply-side resources are needed to
53-5 meet future demand, the utility's preliminary plan adequately
53-6 demonstrates:
53-7 (A) the amount and operational characteristics
53-8 of the additional capacity needed;
53-9 (B) the types of viable supply-side resources
53-10 for meeting that need; and
53-11 (C) the range of probable costs of those
53-12 resources;
53-13 (4) the utility's preliminary plan demonstrates the
53-14 opportunities for appropriate persons to participate in the
53-15 development of the preliminary plan;
53-16 (5) the specific criteria the utility will use to
53-17 evaluate and select or reject resources are reasonable and
53-18 consistent with the guidelines of the integrated resource planning
53-19 process;
53-20 (6) the cost allocation method proposed by the utility
53-21 is reasonable; and
53-22 (7) any incentive factors proposed by the utility are
53-23 reasonable.
53-24 (i) Not later than the 180th day after the date the utility
53-25 files the preliminary plan, the commission shall issue an interim
53-26 order on the preliminary plan. The commission shall approve the
53-27 preliminary plan, modify the preliminary plan, or, if necessary,
54-1 remand the preliminary plan for additional proceedings.
54-2 (j) On approval of the preliminary plan, the utility shall
54-3 conduct solicitations for demand-side and supply-side resources, as
54-4 prescribed in the preliminary plan. In addition to soliciting
54-5 resources from unaffiliated third parties, the utility may:
54-6 (1) prepare and submit a bid of a new utility
54-7 demand-side management program as prescribed by Subsection (l) of
54-8 this section;
54-9 (2) receive bids from one or more affiliates; and
54-10 (3) request a certificate of convenience and necessity
54-11 for a new rate-based generating plant.
54-12 (k) Each bidder, including the utility and its affiliates,
54-13 shall submit two copies of its bid to the commission. The
54-14 commission shall ensure that the utility has access to all bids at
54-15 the same time. The commission shall keep a copy of each bid
54-16 submitted by the utility or an affiliate to determine whether the
54-17 utility complied with the criteria established for conduct of the
54-18 solicitation. A bid submitted under this subsection or retained
54-19 under this subsection is confidential and is not subject to
54-20 disclosure under Chapter 552, Government Code.
54-21 (l) If a utility wants to use a proposed demand-side
54-22 management program to meet a need identified in the preliminary
54-23 plan, the utility must prepare a bid reflecting that resource. A
54-24 bid prepared by the utility under this subsection must comply with
54-25 the solicitation, evaluation, selection, and rejection criteria
54-26 specified in the preliminary plan. The utility may not give
54-27 preferential treatment or consideration to a bid prepared under
55-1 this subsection.
55-2 (m) The utility shall evaluate each bid submitted, including
55-3 a bid the utility submitted under Subsection (l) of this section
55-4 and an affiliate bid, in accordance with the criteria specified in
55-5 the preliminary plan and shall negotiate necessary contracts. If
55-6 the utility accepts a bid the utility submitted under Subsection
55-7 (l) of this section, the utility shall specify in writing that the
55-8 utility agrees to provide the resources in the same manner and
55-9 under the same terms and conditions the utility would require from
55-10 a third party, unless the utility can demonstrate to the
55-11 satisfaction of the commission that a term or condition should not
55-12 apply. Unless the utility submits a bid under Subsection (l) of
55-13 this section, the utility is not required to accept a bid and may
55-14 reject any or all bids in accordance with the selection and
55-15 rejection criteria specified in the preliminary plan. If the
55-16 utility submits a bid under Subsection (l) of this section, the
55-17 utility may reject other bids in accordance with the selection and
55-18 rejection criteria specified in the preliminary plan, but must
55-19 select the utility's own bid as the resource of last resort. If
55-20 the results of the solicitations and contract negotiations do not
55-21 meet the supply-side needs identified in the preliminary plan, the
55-22 utility may apply for a certificate of convenience and necessity
55-23 for a utility-owned resource addition notwithstanding the fact a
55-24 solicitation was conducted and the addition was not included in the
55-25 approved preliminary plan.
55-26 (n) After conducting the solicitations and negotiating the
55-27 contracts, the utility shall submit to the commission a proposed
56-1 final integrated resource plan. The proposed final plan must
56-2 include:
56-3 (1) the results of the solicitations;
56-4 (2) the contracts for resources;
56-5 (3) the terms and conditions under which the utility
56-6 will provide resources to meet a need identified in the preliminary
56-7 plan, if the utility accepts a bid submitted under Subsection (l)
56-8 of this section; and
56-9 (4) an application for a certificate of convenience
56-10 and necessity, if necessary.
56-11 (o) The commission shall, on request by any affected person
56-12 and within 90 days after the date a utility files its final
56-13 integrated resource plan under this section, convene a public
56-14 hearing on the reasonableness and cost-effectiveness of the
56-15 proposed final plan. At the hearing, any interested person may
56-16 intervene, present evidence, and cross-examine witnesses regarding
56-17 the reasonableness and cost-effectiveness of the proposed final
56-18 plan. Parties will not be allowed to litigate or conduct discovery
56-19 on issues that were litigated or could have been litigated in
56-20 connection with the filing of the utility's preliminary plan. To
56-21 the extent permitted by federal law, the commission may issue a
56-22 written order for access to the books, accounts, memoranda,
56-23 contracts, or records of any exempt wholesale generator or power
56-24 marketer selling energy at wholesale to a utility, if the
56-25 examination is required for the effective discharge of the
56-26 commission's regulatory responsibilities under this Act, except
56-27 that if the commission issues such an order, the books, accounts,
57-1 memoranda, contracts, and records obtained by the commission are
57-2 confidential and not subject to disclosure under Chapter 552,
57-3 Government Code.
57-4 (p) After the hearing, the commission shall determine
57-5 whether:
57-6 (1) the utility's proposed final plan was developed in
57-7 accordance with the preliminary plan and commission rules;
57-8 (2) the resource solicitations, evaluations,
57-9 selections, and rejections were conducted in accordance with the
57-10 criteria included in the preliminary plan;
57-11 (3) the utility's proposed final plan is
57-12 cost-effective;
57-13 (4) the commission should certify the contracts and
57-14 any utility bid submitted under Subsection (l) of this section that
57-15 resulted from the solicitations; and
57-16 (5) the commission should grant a requested
57-17 certificate of convenience and necessity for a utility-owned
57-18 resource addition.
57-19 (q) In determining whether to certify a contract that
57-20 results from the solicitations, the commission shall consider the
57-21 reliability, financial condition, and safety of that resource
57-22 contract and whether the solicitation, evaluation, and selection of
57-23 that resource contract was conducted in accordance with the
57-24 criteria included in the preliminary plan. In addition, if the
57-25 contract is with a utility affiliate, the commission shall
57-26 determine whether the utility treated and considered the
57-27 affiliate's bid in the same manner it treated and considered other
58-1 bids intended to meet the same resource needs. Commission
58-2 certification of a resource contract does not negate the necessity
58-3 of the resource to comply with all applicable environmental and
58-4 siting regulations.
58-5 (r) In determining whether to certify a bid submitted under
58-6 Subsection (l) of this section, the commission, in addition to the
58-7 determinations required under Subsection (q) of this section, shall
58-8 determine whether the utility has agreed in writing to provide the
58-9 resource in the same manner and under the same terms and conditions
58-10 the utility would require from a third party, provided that the
58-11 commission may waive application of a term or condition on a
58-12 showing of good cause.
58-13 (s) In determining whether to grant a requested certificate
58-14 of convenience and necessity, the commission shall consider the
58-15 effect of the granting of a certificate on the recipient of the
58-16 certificate and on any public utility of the same kind already
58-17 serving the proximate area. The commission shall also consider
58-18 other factors such as community values, recreational and park
58-19 areas, historical and aesthetic values, environmental integrity,
58-20 and the probable improvement of service or lowering of cost to
58-21 consumers in that area if the certificate is granted. The
58-22 commission shall grant the certificate as part of the approval of
58-23 the final plan if it finds that:
58-24 (1) the proposed addition is necessary under the final
58-25 plan;
58-26 (2) the proposed addition is the best and most
58-27 economical choice of technology for that service area; and
59-1 (3) cost-effective conservation and other
59-2 cost-effective alternative energy sources cannot reasonably meet
59-3 the need.
59-4 (t) Not later than the 180th day after the date the utility
59-5 files the proposed final plan, the commission shall issue a final
59-6 order on the plan. The commission shall approve the proposed final
59-7 plan, modify the proposed final plan, or, if necessary, remand the
59-8 proposed final plan for additional proceedings.
59-9 (u) The commission shall adopt rules allowing a utility to
59-10 add, consistent with the utility's last approved integrated
59-11 resource planning goals, new or incremental resources outside the
59-12 solicitation process, including resources listed in Subsection (x)
59-13 of this section.
59-14 (v) In addition to its other authority and responsibility
59-15 under this section, the commission shall establish rules and
59-16 guidelines that will promote the development of renewable energy
59-17 technologies consistent with the guidelines of the integrated
59-18 resource planning process.
59-19 (w) In carrying out its duties related to the integrated
59-20 resource planning process, the commission may:
59-21 (1) allow timely recovery of reasonable costs of
59-22 conservation, load management, and purchased power, notwithstanding
59-23 Section 2.212(g)(1) of this Act;
59-24 (2) authorize additional incentives for conservation,
59-25 load management, purchased power, and renewable resources;
59-26 (3) require a utility to provide transmission service,
59-27 exclusively for the purposes of transmitting wholesale power, to
60-1 another utility or any other entity authorized to generate and sell
60-2 electricity or to a power marketer; and
60-3 (4) review the state's transmission system to
60-4 determine and make recommendations to public utilities on the need
60-5 to build new power lines, upgrade power lines, and make other
60-6 improvements and additions as necessary, and who should pay the
60-7 cost of these improvements if made, review the actions of the
60-8 public utilities in light of those recommendations, and take those
60-9 actions into account in fixing a reasonable return on invested
60-10 capital under Section 2.203(b) of this Act.
60-11 (x) Consistent with the utility's last approved integrated
60-12 resource planning goals, the utility may add new or incremental
60-13 resources outside the solicitation process such as:
60-14 (1) contract renegotiation for existing capacity from
60-15 nonaffiliated power generating facilities;
60-16 (2) nonaffiliated demand-side management programs or
60-17 renewable resources;
60-18 (3) capacity purchases with terms of two years or less
60-19 from nonaffiliated power suppliers or capacity purchases necessary
60-20 to satisfy unanticipated emergency conditions;
60-21 (4) the exercise of an option in a purchased power
60-22 contract with a nonaffiliated supplier; and
60-23 (5) renewable distributed resources, located at or
60-24 near the point of consumption, if they are less costly than
60-25 transmission extensions or upgrades.
60-26 (y) The addition of new or incremental resources by a
60-27 utility under Subsection (x) of this section does not require an
61-1 amendment to the utility's integrated resource plan.
61-2 (z) If a qualifying facility submits a bid under this
61-3 section, regardless of whether that bid is accepted or rejected,
61-4 the submission of the bid:
61-5 (1) constitutes a waiver by the qualifying facility of
61-6 any rights it may otherwise have under law to sell capacity to the
61-7 utility;
61-8 (2) represents the qualifying facility's agreement to
61-9 negotiate a rate for purchase of capacity and terms and conditions
61-10 relating to any purchase of capacity that differ from the rate or
61-11 terms and conditions that would otherwise be required by 18 CFR
61-12 Chapter I, Subchapter K, Part 292, Subpart C; and
61-13 (3) constitutes a waiver by the qualifying facility of
61-14 its right to the rate, terms, or conditions for purchases of
61-15 capacity that might otherwise be required by that subpart.
61-16 (aa) In this section, "utility" includes a municipally owned
61-17 utility. <ELECTRICAL FORECAST. (a) The commission shall develop
61-18 a long-term statewide electrical energy forecast which shall be
61-19 sent to the governor biennially. The forecast will include an
61-20 assessment of how alternative energy sources, conservation, and
61-21 load management will meet the state's electricity needs.>
61-22 <(b) Every generating electric utility in the state shall
61-23 prepare and transmit to the commission every two years a report
61-24 specifying at least a 10-year forecast for assessments of load and
61-25 resources for its service area. The report shall include a list of
61-26 facilities which will be required to supply electric power during
61-27 the forecast periods. The report shall be in a form prescribed by
62-1 the commission. The report shall include:>
62-2 <(1) a tabulation of estimated peak load, resources,
62-3 and reserve margins for each year during the forecast or assessment
62-4 period;>
62-5 <(2) a list of existing electric generating plants in
62-6 service with a description of planned and potential generating
62-7 capacity at existing sites;>
62-8 <(3) a list of facilities which will be needed to
62-9 serve additional electrical requirements identified in the
62-10 forecasts or assessments, the general location of such facilities,
62-11 and the anticipated types of fuel to be utilized in the proposed
62-12 facilities, including an estimation of shutdown costs and disposal
62-13 of spent fuel for nuclear power plants;>
62-14 <(4) a description of additional system capacity which
62-15 might be achieved through, among other things, improvements in:>
62-16 <(A) generating or transmission efficiency;>
62-17 <(B) importation of power;>
62-18 <(C) interstate or interregional pooling;>
62-19 <(D) other improvements in efficiencies of
62-20 operation; and>
62-21 <(E) conservation measures;>
62-22 <(5) an estimation of the mix and type of fuel
62-23 resources for the forecast or assessment period;>
62-24 <(6) an annual load duration curve and a forecast of
62-25 anticipated peak loads for the forecast or assessment period for
62-26 the residential, commercial, industrial, and such other major
62-27 demand sectors in the service area of the electric utility as the
63-1 commission shall determine; and>
63-2 <(7) a description of projected population growth,
63-3 urban development, industrial expansion, and other growth factors
63-4 influencing increased demand for electric energy and the basis for
63-5 such projections.>
63-6 <(c) The commission shall establish and every electric
63-7 utility shall utilize a reporting methodology for preparation of
63-8 the forecasts of future load and resources.>
63-9 <(d) The commission shall review and evaluate the electric
63-10 utilities' forecast of load and resources and any public comment on
63-11 population growth estimates prepared by the Bureau of Business
63-12 Research, The University of Texas at Austin.>
63-13 <(e) Within 12 months after the receipt of the reports
63-14 required by this section, the commission shall hold a public
63-15 hearing and subsequently issue a final report to the governor and
63-16 notify every electric utility of the commission's electric forecast
63-17 for that utility. The commission shall consider its electric
63-18 forecast in all certification proceedings covering new generation
63-19 plants.>
63-20 SECTION 2.04. Section 2.052, Public Utility Regulatory Act
63-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
63-22 Regular Session, 1995, is amended to read as follows:
63-23 Sec. 2.052. ENCOURAGEMENT OF ECONOMICAL PRODUCTION. (a)
63-24 The commission shall make and enforce rules to encourage the
63-25 economical production of electric energy by qualifying cogenerators
63-26 and qualifying small power producers.
63-27 (b) A qualifying cogenerator or qualifying small power
64-1 producer may sell electric energy in this state only at wholesale,
64-2 except that a qualifying cogenerator may sell electric energy at
64-3 retail to the sole purchaser of the cogenerator's thermal output.
64-4 SECTION 2.05. Subtitle B, Title II, Public Utility
64-5 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
64-6 74th Legislature, Regular Session, 1995, is amended by adding
64-7 Section 2.053 to read as follows:
64-8 Sec. 2.053. EXEMPT WHOLESALE GENERATORS AND POWER MARKETERS.
64-9 (a) An exempt wholesale generator or power marketer may sell
64-10 electric energy only at wholesale.
64-11 (b) The commission has the following jurisdiction over
64-12 exempt wholesale generators and power marketers that sell electric
64-13 energy in this state:
64-14 (1) to require registration as provided by Subsection
64-15 (c) of this section; and
64-16 (2) to require the filing of reports the commission
64-17 prescribes by rule.
64-18 (c) Each exempt wholesale generator and power marketer
64-19 shall, within 30 days after the date it becomes subject to this
64-20 section, register with the commission or provide proof that it has
64-21 registered with the Federal Energy Regulatory Commission or been
64-22 authorized by the Federal Energy Regulatory Commission to sell
64-23 electric energy at market-based rates. Registration may be
64-24 accomplished by filing with the commission a description of the
64-25 location of any facility used to provide service, the type of
64-26 service provided, a copy of any information filed with the Federal
64-27 Energy Regulatory Commission in connection with registration with
65-1 that commission, and other information the commission prescribes by
65-2 rule.
65-3 SECTION 2.06. Subtitle B, Title II, Public Utility
65-4 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
65-5 74th Legislature, Regular Session, 1995, is amended by adding
65-6 Section 2.054 to read as follows:
65-7 Sec. 2.054. EXEMPT WHOLESALE GENERATOR AND POWER MARKETER
65-8 AFFILIATES. An affiliate of a public utility may be an exempt
65-9 wholesale generator or power marketer and may:
65-10 (1) sell electric energy to its affiliated public
65-11 utility in accordance with other provisions of law governing
65-12 wholesale sales of electric energy; and
65-13 (2) acquire equipment or a facility from the
65-14 affiliated public utility if the acquisition complies with
65-15 applicable federal and state law and the commission certifies that
65-16 the transfer of the equipment or facility is in the public
65-17 interest.
65-18 SECTION 2.07. Subtitle B, Title II, Public Utility
65-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
65-20 74th Legislature, Regular Session, 1995, is amended by adding
65-21 Section 2.055 to read as follows:
65-22 Sec. 2.055. EXEMPT WHOLESALE GENERATOR AND POWER MARKETER
65-23 CONTRACTS. (a) The commission by rule shall require commission
65-24 approval of a contract between a public utility, including a
65-25 municipally owned utility, and an exempt wholesale generator or
65-26 power marketer before the utility enters into the contract.
65-27 (b) The commission may not approve a contract under
66-1 Subsection (a) unless the commission determines that:
66-2 (1) it has sufficient regulatory authority, resources,
66-3 and access to the books and records of the purchasing utility and
66-4 the exempt wholesale generator or power marketer to exercise its
66-5 duties under this section;
66-6 (2) the transaction:
66-7 (A) will benefit consumers;
66-8 (B) does not violate state or federal law;
66-9 (C) would not provide the exempt wholesale
66-10 generator or power marketer an unfair competitive advantage by
66-11 virtue of its affiliation or association with the purchasing
66-12 utility, if any; and
66-13 (D) is in the public interest; and
66-14 (3) the proposed contract and the parties to the
66-15 contract meet the following standards:
66-16 (A) the financial integrity of the exempt
66-17 wholesale generator or power marketer or the use by the exempt
66-18 wholesale generator or power marketer of a capital structure that
66-19 employs proportionally greater amounts of debt than the capital
66-20 structure of the utility, or both, does not threaten the exempt
66-21 wholesale generator's or power marketer's reliability;
66-22 (B) the utility entering into a contract with an
66-23 exempt wholesale generator or power marketer will be allowed by the
66-24 commission an adjustment to its equity ratio and earnings
66-25 sufficient to offset any action by the major credit rating agencies
66-26 (Duff & Phelps, Moody's, or Standard & Poors) that imputes
66-27 additional debt to the utility's balance sheet or reduces the
67-1 utility's interest coverage as a result of the contract, or other
67-2 debt-related effect the contract has on the utility's capital
67-3 structure;
67-4 (C) there are reasonable assurances of an
67-5 adequate fuel supply, although a fuel contract for the full
67-6 contract term is not required;
67-7 (D) the original prices, terms, and conditions
67-8 of the contract at the time the contract was entered into were
67-9 reasonable and it was reasonable for the parties to contract;
67-10 (E) the exempt wholesale generator or power
67-11 marketer meets technical and operating standards necessary for safe
67-12 and reliable service;
67-13 (F) the utility has determined, after giving
67-14 consideration to consistently applied regional or national
67-15 reliability standards, guidelines, or criteria, that the contract
67-16 would not unreasonably impair the continued reliability of electric
67-17 systems affected by the purchase; and
67-18 (G) the purchase can reasonably be expected to
67-19 produce benefits to customers of the purchasing utility.
67-20 (c) The commission shall make its determination under this
67-21 section within 90 days after the date the proposed contract is
67-22 submitted, unless before that deadline the purchasing utility, the
67-23 exempt wholesale generator or power marketer, or an affected person
67-24 requests a hearing or the commission on its own motion decides to
67-25 hold a hearing. If a hearing is requested or the commission
67-26 decides to hold a hearing, the commission shall hold the hearing
67-27 and make its determination within 120 days after the date the
68-1 proposed contract is submitted, except that this deadline is
68-2 extended two days for each day in excess of five days on which the
68-3 commission conducts a hearing on the merits of the case.
68-4 (d) Except as provided by Subsection (e) of this section, in
68-5 setting the public utility's rates for a period during which the
68-6 approved contract is effective, the regulatory authority shall
68-7 consider payments made under the contract to be reasonable and
68-8 necessary operating expenses of the public utility. The regulatory
68-9 authority shall allow full, concurrent, and monthly recovery of the
68-10 amount of the payments.
68-11 (e) A commission finding that the original prices, terms,
68-12 and conditions of the contract at the time the contract was entered
68-13 into were reasonable and that it was reasonable for the parties to
68-14 contract does not preclude the commission from reviewing the
68-15 utility's subsequent actions or costs incurred relating to the
68-16 contract.
68-17 (f) In determining whether a contract is in the public
68-18 interest, the commission shall evaluate the potential for increases
68-19 or decreases in the cost of capital for public utilities and any
68-20 resulting increases or decreases in retail rates that may result
68-21 from purchases of long-term wholesale power supplies instead of the
68-22 construction of new generation facilities by the utility.
68-23 (g) If a rate or charge for, or in connection with, the
68-24 construction of a facility, or for electric energy produced by a
68-25 facility was in effect before the date of enactment of this
68-26 section, all or part of the facility may be considered an eligible
68-27 facility if the commission makes a determination that the facility
69-1 will benefit consumers and is in the public interest.
69-2 (h) A contract for a public utility to purchase electric
69-3 capacity and energy at wholesale from an exempt wholesale generator
69-4 or power marketer that is an affiliate or associate company of the
69-5 public utility must be entered into as a result of a solicitation
69-6 as required in the integrated resource planning process under
69-7 Section 2.051 of this Act. The revenues of the affiliate exempt
69-8 wholesale generator or power marketer may not be considered for
69-9 purposes of calculating the utility's cost of service and rate of
69-10 return.
69-11 (i) An exempt wholesale generator or power marketer may not
69-12 make sales other than for resale without losing its status as an
69-13 exempt wholesale generator or power marketer and becoming a public
69-14 utility under this Act.
69-15 (j) The commission is entitled to have access to the
69-16 financial, technical, and operational records and books of an
69-17 exempt wholesale generator or power marketer to the extent
69-18 necessary to enforce this section or rules adopted under this
69-19 section.
69-20 (k) This section does not exempt an entity that generates
69-21 power in this state from an applicable environmental or siting
69-22 regulation.
69-23 (l) In this section, "eligible facility" has the meaning
69-24 assigned by the Public Utility Holding Company Act (15 U.S.C.
69-25 Section 79 et seq.).
69-26 SECTION 2.08. Subtitle B, Title II, Public Utility
69-27 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
70-1 74th Legislature, Regular Session, 1995, is amended by adding
70-2 Section 2.056 to read as follows:
70-3 Sec. 2.056. TRANSMISSION SERVICE. The commission may
70-4 require a utility, including a municipally owned utility, to
70-5 provide transmission service at wholesale to another utility, a
70-6 qualifying facility, an exempt wholesale generator, or a power
70-7 marketer and may determine whether the terms and conditions for the
70-8 transmission service are reasonable. The commission may not issue
70-9 a decision or rule relating to transmission service that is
70-10 contrary to an applicable decision or rule of a federal regulatory
70-11 agency.
70-12 SECTION 2.09. Subtitle B, Title II, Public Utility
70-13 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
70-14 74th Legislature, Regular Session, 1995, is amended by adding
70-15 Section 2.057 to read as follows:
70-16 Sec. 2.057. WHOLESALE COMPETITION. (a) The commission
70-17 shall adopt rules relating to wholesale transmission pricing and
70-18 access and the registration and reporting requirements of
70-19 qualifying facilities, exempt wholesale generators, and power
70-20 marketers. The rules shall be consistent with the standards in
70-21 this section.
70-22 (b) In adopting rules on wholesale transmission pricing and
70-23 access, the commission shall ensure that public utilities that own
70-24 transmission facilities provide wholesale transmission service at
70-25 prices and terms of access that are comparable to the prices and
70-26 access terms that utilities afford themselves in providing service
70-27 to the customers within their own certificated service areas and
71-1 shall ensure that these utilities provide nondiscriminatory access
71-2 to transmission service for exempt power generators, power
71-3 marketers, and public utilities. The transmission service shall be
71-4 exclusively for the purposes of transmitting wholesale power to a
71-5 utility. The rules must require the commission to make an
71-6 affirmative finding that transmission service:
71-7 (1) is in the public interest;
71-8 (2) will not adversely affect the ratepayers of the
71-9 transmitting utility;
71-10 (3) does not impair the transmitting utility's service
71-11 reliability; and
71-12 (4) is priced based on the embedded cost of providing
71-13 service plus a reasonable rate of return.
71-14 (c) The regulatory authority may not require a public
71-15 utility to wheel or transmit electricity over that public utility's
71-16 facilities from another entity to an ultimate consumer of
71-17 electricity in the utility's certificated service area, including
71-18 wheeling or transmitting electricity to another location of that
71-19 other entity, if the entity is an ultimate consumer of electricity.
71-20 (d) To the extent a utility provides transmission of
71-21 electric energy at the request of a third party, the commission
71-22 shall ensure that the costs of the transmission are not borne by
71-23 the utility's other customers by requiring the utility to recover
71-24 from the entity for which the transmission is provided all
71-25 reasonable costs incurred by the utility in providing the
71-26 transmission.
71-27 (e) For the purposes of administering these rules, the
72-1 commission may require that parties to a dispute over the prices,
72-2 terms, and conditions of wholesale transmission service engage in
72-3 an alternative dispute resolution process before seeking a
72-4 resolution of a dispute from the commission.
72-5 (f) The commission shall submit a report to the 75th
72-6 Legislature on methods or procedures for quantifying the magnitude
72-7 of stranded investment, procedures for allocating costs, and the
72-8 acceptable methods of recovering stranded costs.
72-9 (g) Public utilities, affiliates of public utilities, exempt
72-10 wholesale generators, qualifying facilities, and all other
72-11 providers of generation may compete for the business of selling
72-12 power to a third party that is not an ultimate consumer of
72-13 electricity. In accordance with the applicable provisions of this
72-14 Act, a public utility may purchase power from an affiliate. A
72-15 public utility may not grant undue preference to any person in
72-16 connection with the utility's purchase or sale of electric energy
72-17 at wholesale or other utility services.
72-18 SECTION 2.10. Subtitle B, Title II, Public Utility
72-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
72-20 74th Legislature, Regular Session, 1995, is amended by adding
72-21 Section 2.058 to read as follows:
72-22 Sec. 2.058. LIMITED LIABILITY. (a) In any action or claim
72-23 brought against a public utility based in whole or in part on a
72-24 theory of strict products liability, breach of implied warranty,
72-25 other liability without negligence, or liability based on the
72-26 inherent characteristics of electricity, the utility shall have a
72-27 right of contribution against any person using the utility's
73-1 transmission or distribution system to transmit power or make a
73-2 sale of energy or capacity to the utility. In the case of an
73-3 action or claim based in whole or in part on a theory of strict
73-4 products liability, breach of implied warranty, or other liability
73-5 without negligence, the amount of contribution the utility shall be
73-6 entitled to receive from the person shall be based on the amount of
73-7 power the person was transmitting or selling to the utility at the
73-8 time of the accident or injury made the basis of the claim or
73-9 action against the utility. In the case of an action or claim
73-10 based in whole or in part on liability based on the inherent
73-11 characteristics of electricity, the amount of contribution the
73-12 utility shall be entitled to receive from the person shall be based
73-13 on the amount of power the person transmitted or sold to the
73-14 utility during the 12-month period immediately preceding the
73-15 accident or injury made the basis of the claim or action against
73-16 the utility.
73-17 (b) If as a result of any future statute, regulation, or
73-18 judicial or administrative decision a public utility is required to
73-19 make any improvements, modifications, retrofits, or other changes
73-20 to all or part of its transmission or distribution system on the
73-21 basis of the inherent characteristics of electricity, the utility
73-22 shall have a right to reimbursement from any person using the
73-23 utility's transmission or distribution system to transmit power or
73-24 make a sale of energy or capacity to the utility. The amount of
73-25 reimbursement the utility shall be entitled to receive from the
73-26 person shall be based on the amount of power the person transmitted
73-27 or sold to the utility during the 12-month period immediately
74-1 preceding the passage or adoption of the statute or regulation or
74-2 the entry of the judicial or administrative decision.
74-3 (c) This section does not invalidate any provision of any
74-4 contract entered into before September 1, 1995, providing for the
74-5 transmission of power on a utility's transmission or distribution
74-6 system, the interconnection to a utility's transmission or
74-7 distribution system, or the sale of power to a utility.
74-8 SECTION 2.11. Sections 2.101(a) and (e), Public Utility
74-9 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
74-10 74th Legislature, Regular Session, 1995, are amended to read as
74-11 follows:
74-12 (a) Subject to the limitations imposed by Sections 2.2011
74-13 and 2.211 of <in> this Act, and for the purpose of regulating rates
74-14 and services so that such rates may be fair, just, and reasonable,
74-15 and the services adequate and efficient, the governing body of each
74-16 municipality shall have exclusive original jurisdiction over all
74-17 retail electric utility rates, operations, and services provided by
74-18 an electric utility within its city or town limits.
74-19 (e) The commission shall have exclusive original
74-20 jurisdiction over electric utility rates, operations, and services
74-21 not within the incorporated limits of a municipality exercising
74-22 exclusive original jurisdiction over those rates, operations, and
74-23 services as provided in this Act, shall have exclusive original
74-24 jurisdiction over electric utility rates in both the incorporated
74-25 limits of all municipalities and in the unincorporated areas for
74-26 the purposes of Section 2.2011 of this Act, and shall have
74-27 exclusive original jurisdiction to determine whether good cause
75-1 exists for a municipality to initiate an inquiry under Section
75-2 2.211 of this Act.
75-3 SECTION 2.12. Section 2.105, Public Utility Regulatory Act
75-4 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
75-5 Regular Session, 1995, is amended by adding Subsection (c) to read
75-6 as follows:
75-7 (c) Not later than the 31st day before the date a utility
75-8 files a statement of intent under Section 2.212(a) of this Act, the
75-9 utility shall provide to each municipality having original
75-10 jurisdiction notice of intent to file the statement. Not later
75-11 than the 30th day after the date a municipality receives notice of
75-12 intent to file a statement, the municipality may request that the
75-13 utility file with the municipality a statement of intent in
75-14 accordance with Section 2.212(a) of this Act. If requested, the
75-15 utility shall file the statement of intent with the municipality at
75-16 the same time the statement is filed with the commission and the
75-17 office.
75-18 SECTION 2.13. Subtitle D, Title II, Public Utility
75-19 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
75-20 74th Legislature, Regular Session, 1995, is amended by adding
75-21 Section 2.1511 to read as follows:
75-22 Sec. 2.1511. MARKUP. Any cost recovery factor established
75-23 for recovery of purchased power costs shall include the costs
75-24 incurred by the utility for the purchase of capacity and energy,
75-25 together with a markup added to the costs or other mechanism, as
75-26 determined by the commission, to reasonably compensate the utility
75-27 for financial risks, if any, to the utility associated with
76-1 purchased power obligations and the value added by the utility in
76-2 making the purchased power available to its customers. The factors
76-3 allowed should serve to encourage the utility to incur purchased
76-4 power costs.
76-5 SECTION 2.14. Section 2.152, Public Utility Regulatory Act
76-6 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
76-7 Regular Session, 1995, is amended by amending Subsection (d) and
76-8 adding Subsection (e) to read as follows:
76-9 (d) Reasonable charitable or civic contributions and
76-10 ordinary advertising expenses shall be allowed if the sum of the
76-11 contributions and expenses does not exceed three-tenths of one
76-12 percent of the gross receipts of the utility. <may be allowed not
76-13 to exceed the amount approved by the regulatory authority.>
76-14 (e) Reasonable costs of participating in a proceeding under
76-15 this Act may be allowed, not to exceed the amount approved by the
76-16 regulatory authority.
76-17 SECTION 2.15. Section 2.154(b), Public Utility Regulatory
76-18 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
76-19 Legislature, Regular Session, 1995, is amended to read as follows:
76-20 (b) Every public utility shall file with, and as a part of
76-21 such schedules, all rules and regulations relating to or affecting
76-22 the rates, public utility service, product, or commodity furnished
76-23 by such utility. Prices being charged to individual customers for
76-24 retail electric service shall be filed with the regulatory
76-25 authority. The regulatory authority shall consider any information
76-26 concerning a price charged to an individual customer filed with it
76-27 to be a trade secret and shall prevent disclosure of the
77-1 information. This information is not subject to disclosure under
77-2 Chapter 552, Government Code.
77-3 SECTION 2.16. Subtitle E, Title II, Public Utility
77-4 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
77-5 74th Legislature, Regular Session, 1995, is amended by adding
77-6 Section 2.2011 to read as follows:
77-7 Sec. 2.2011. (a) An electric cooperative corporation that
77-8 provides retail electric utility service at distribution voltage is
77-9 exempt from rate regulation if a majority of the members voting in
77-10 an election on the deregulation of the electric cooperative vote to
77-11 approve the exemption and the electric cooperative sends notice of
77-12 the action to each applicable regulatory authority. An electric
77-13 cooperative that wants to hold an election under this section shall
77-14 send a ballot by mail to each electric cooperative member. The
77-15 electric cooperative may include the ballot in a monthly billing.
77-16 The ballot shall provide for voting for or against rate
77-17 deregulation of the electric cooperative. If the proposition is
77-18 approved, the electric cooperative shall send each ballot to the
77-19 commission not later than the 10th day after the date the electric
77-20 cooperative counts the ballots. Based on the ballots received, the
77-21 commission shall administratively certify that the electric
77-22 cooperative is or is not deregulated for rate-making purposes. An
77-23 electric cooperative may not hold another election on the issue of
77-24 being exempt from rate regulation before the first anniversary of
77-25 the most recent election on the issue. Subsections (b) through (n)
77-26 of this section apply to an electric cooperative that has elected
77-27 to be exempt from rate regulation.
78-1 (b) No regulatory authority shall fix and regulate the rates
78-2 of an electric cooperative that has made an election under this
78-3 section to be exempt from rate regulation except as provided for
78-4 the commission in Subsections (g) and (i) of this section.
78-5 Notwithstanding Subsection (a) of Section 2.101 of this Act, the
78-6 commission has exclusive original jurisdiction in all of the
78-7 electric cooperative's service area in a proceeding initiated under
78-8 Subsection (g) or (i) of this section.
78-9 (c) An electric cooperative may change its rates by:
78-10 (1) adopting a resolution approving the proposed
78-11 change;
78-12 (2) mailing notice of the proposed change to:
78-13 (A) the commission;
78-14 (B) each affected municipality;
78-15 (C) each affected customer, which notice may be
78-16 included in a monthly billing; and
78-17 (D) each electric utility providing retail
78-18 service in the electric cooperative's service area or in the
78-19 adjoining service area; and
78-20 (3) making available at each of the electric
78-21 cooperative's business offices for review by all interested persons
78-22 a cost-of-service study that:
78-23 (A) is not more than five years old at the time
78-24 the electric cooperative adopts rates under this subsection; and
78-25 (B) bears the certification of a professional
78-26 engineer or certified public accountant.
78-27 (d)(1) The notice required by Subsection (c) of this section
79-1 must contain the following information:
79-2 (A) the increase or decrease in total operating
79-3 revenues over actual test year revenues or over test year revenues
79-4 adjusted to annualize the recovery of changes in the cost of
79-5 purchased electricity, stated both as a dollar amount and as a
79-6 percentage;
79-7 (B) the classes of utility customers affected
79-8 and the creation and application of any new rate classes;
79-9 (C) the increase or decrease for each class
79-10 stated as a percentage of actual test year revenues for the class
79-11 or of test year revenues for the class adjusted to annualize the
79-12 recovery of changes in the cost of purchased electricity;
79-13 (D) a statement that the commission may review
79-14 the rate change if the commission receives a petition within 60
79-15 days in accordance with Subsection (g) of this section;
79-16 (E) the address and telephone number of the
79-17 commission;
79-18 (F) a statement that a customer opposed to the
79-19 rate change should notify the electric cooperative in writing of
79-20 the person's opposition and should provide a return address; and
79-21 (G) a statement that members may review a copy
79-22 of any written opposition the electric cooperative receives.
79-23 (2) The electric cooperative may not be required to
79-24 include additional information in the notice.
79-25 (e) The electric cooperative shall make available for review
79-26 by a member of the cooperative at each of the electric
79-27 cooperative's business offices a copy of any written opposition to
80-1 the rate change the electric cooperative receives.
80-2 (f) The electric cooperative shall file tariffs with the
80-3 commission. If the electric cooperative complies with Subsection
80-4 (c) of this section, the commission shall approve the tariffs not
80-5 later than the 10th day after the 60-day period prescribed by
80-6 Subsection (g) of this section expires, unless a review is required
80-7 under Subsection (g) or (i) of this section. If the tariffs are
80-8 approved or if a review is not required and the commission fails to
80-9 act during the period prescribed by this subsection, the change in
80-10 rates takes effect on the 70th day after the date the electric
80-11 cooperative first complies with all requirements of Subsection (c)
80-12 of this section or on a later date determined by the electric
80-13 cooperative. Except as provided by Subsections (g) and (i) of this
80-14 section, the rates of the electric cooperative are not subject to
80-15 review.
80-16 (g) The commission shall review a change in rates under this
80-17 section if, not later than the 60th day after the date the electric
80-18 cooperative first complies with all requirements of Subsection (c)
80-19 of this section, the commission receives a petition requesting
80-20 review signed by:
80-21 (1) at least 10 percent of the members of the electric
80-22 cooperative;
80-23 (2) members of the electric cooperative who purchased
80-24 more than 50 percent of the electric cooperative's annual energy
80-25 sales to a customer class in the test year, provided that the
80-26 petition includes a certification of the purchases; or
80-27 (3) an executive officer of an affected electric
81-1 utility, provided that the petition prescribes the particular class
81-2 or classes for which a review is requested.
81-3 (h) When a person files a petition under Subsection (g) of
81-4 this section, the person shall notify the electric cooperative in
81-5 writing of the action.
81-6 (i) The commission may on its own motion review the rates of
81-7 an electric cooperative if the commission first finds that there is
81-8 good cause to believe that the electric cooperative is earning more
81-9 than a reasonable return on overall system revenues or on revenue
81-10 from a rate class.
81-11 (j) The commission shall conduct a review under Subsection
81-12 (g)(1) or (2) of this section or under Subsection (i) of this
81-13 section in accordance with Section 2.212 of this Act and the other
81-14 applicable rate-setting principles of this subtitle, except that:
81-15 (1) the period for review does not begin until the
81-16 electric cooperative files a rate-filing package as required by
81-17 commission rules;
81-18 (2) the proposed change may not be suspended during
81-19 the pendency of the review; however, the electric cooperative shall
81-20 refund or credit against future bills all sums collected in excess
81-21 of the rate finally set by the commission, if the commission so
81-22 orders; and
81-23 (3) the electric cooperative shall observe the rates
81-24 set by the commission until the rates are changed as provided by
81-25 this section or by other sections of this Act.
81-26 (k) For a review conducted under Subsection (g)(3) of this
81-27 section, the electric cooperative shall file with the commission a
82-1 copy of the cost-of-service study required under Subsection (c)(3)
82-2 of this section not later than the 10th day after the date the
82-3 electric cooperative receives from the affected electric utility
82-4 notice that a petition has been filed. The commission shall
82-5 determine for each class for which review has been requested the
82-6 annual cost of providing service to the class, as stated in the
82-7 electric cooperative's cost-of-service study, and the revenues for
82-8 the class that would be produced by multiplying the rate set by the
82-9 electric cooperative by the annual billing units for the class, as
82-10 stated in the cost-of-service study. If the electric cooperative
82-11 proposes a rate class solely for a new customer, the electric
82-12 cooperative shall estimate the reasonable annual cost of providing
82-13 service to the class, and the electric cooperative shall base class
82-14 revenues on reasonable estimates of billing units.
82-15 (l) The rate for each class for which review has been
82-16 requested under Subsection (g)(3) of this section is suspended
82-17 during the pendency of the review. The commission shall dismiss
82-18 the petition and approve the rates if the revenues for the class
82-19 are equal to or greater than the cost of providing service to the
82-20 class. The commission shall disapprove the rate if the revenues
82-21 for the class are less than the cost of providing service to the
82-22 class; however, this action does not affect reconsideration of the
82-23 rate as a part of any subsequent rate-making proceeding. The rate
82-24 adopted by the electric cooperative is deemed approved and may be
82-25 placed into effect if the commission fails to make its final
82-26 determination administratively not later than the 45th day after
82-27 the date the electric cooperative files its cost-of-service study.
83-1 (m) Except as provided by Subsection (a) of this section,
83-2 the members of an electric cooperative may at any time revoke the
83-3 electric cooperative's election to be exempt from rate regulation
83-4 or elect to again be exempt from rate regulation by majority vote
83-5 of the members voting.
83-6 (n) This section does not affect the application of other
83-7 provisions of this Act not directly related to rates or to the
83-8 authority of the commission to require an electric cooperative to
83-9 file reports required under this Act or rules adopted by the
83-10 commission. A service fee or a service rule or regulation set by
83-11 the electric cooperative under this section must comply with
83-12 commission rules applicable to all electric utilities. The
83-13 commission may determine whether an electric cooperative has
83-14 unlawfully charged, collected, or received a rate for electric
83-15 utility service.
83-16 SECTION 2.17. Section 2.203(b), Public Utility Regulatory
83-17 Act of 1995, as enacted by S.B. No. 319, Acts of the 74th
83-18 Legislature, Regular Session, 1995, is amended to read as follows:
83-19 (b) In fixing a reasonable return on invested capital, the
83-20 regulatory authority shall consider, in addition to other
83-21 applicable factors, efforts to comply with the utility's most
83-22 recently approved individual integrated resource <statewide energy>
83-23 plan, the efforts and achievements of such utility in the
83-24 conservation of resources, the quality of the utility's services,
83-25 the efficiency of the utility's operations, and the quality of the
83-26 utility's management.
83-27 SECTION 2.18. Sections 2.208(b) and (d), Public Utility
84-1 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
84-2 74th Legislature, Regular Session, 1995, are amended to read as
84-3 follows:
84-4 (b) Transactions with Affiliated Interests. Payment to
84-5 affiliated interests for costs of any services or any property,
84-6 right, or thing or for interest expense may not be allowed either
84-7 as capital cost or as expense except to the extent that the
84-8 regulatory authority shall find such payment to be reasonable and
84-9 necessary for each item or class of items as determined by the
84-10 commission. Any such finding shall include specific findings of
84-11 the reasonableness and necessity of each item or class of items
84-12 allowed and a finding that the price to the utility is no higher
84-13 than prices charged by the supplying affiliate to its other
84-14 affiliates or divisions for the same item or class of items or to
84-15 unaffiliated persons or corporations within the same market area or
84-16 having the same market conditions. In any case in which the
84-17 commission finds that the test period affiliate expense is
84-18 unreasonable, the commission shall determine the reasonable level
84-19 of the expense and shall include the expense in determining the
84-20 utility's cost of service. <The price paid by gas utilities to
84-21 affiliated interests for natural gas from Outer Continental Shelf
84-22 lands shall be subject to a rebuttable presumption that such price
84-23 is reasonable if the price paid does not exceed the price permitted
84-24 by federal regulation if such gas is regulated by any federal
84-25 agency or if not regulated by a federal agency does not exceed the
84-26 price paid by nonaffiliated parties for natural gas from Outer
84-27 Continental Shelf lands. The burden of establishing that such a
85-1 price paid is not reasonable shall be on any party challenging the
85-2 reasonableness of such price.>
85-3 (d) Expenses Disallowed. The regulatory authority may not
85-4 consider for ratemaking purposes the following expenses:
85-5 (1) legislative advocacy expenses, whether made
85-6 directly or indirectly, including but not limited to legislative
85-7 advocacy expenses included in trade association dues;
85-8 (2) payments, except those made under an insurance or
85-9 risk-sharing arrangement executed before the date of loss, made to
85-10 cover costs of an accident, equipment failure, or negligence at a
85-11 utility facility owned by a person or governmental body not selling
85-12 power inside the State of Texas;
85-13 (3) costs of processing a refund or credit under
85-14 Subsection (e) of Section 2.212 of this Act; or
85-15 (4) any expenditure found by the regulatory authority
85-16 to be unreasonable, unnecessary, or not in the public interest,
85-17 including but not limited to executive salaries, advertising
85-18 expenses, legal expenses, and civil or administrative penalties or
85-19 fines.
85-20 SECTION 2.19. Section 2.211, Public Utility Regulatory Act
85-21 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
85-22 Regular Session, 1995, is amended by adding Subsections (c)-(e) to
85-23 read as follows:
85-24 (c) Not later than the 120th day after the date the
85-25 regulatory authority notifies the utility that the regulatory
85-26 authority has decided to proceed with an inquiry under this section
85-27 relating to the rates of the utility, the utility shall file a
86-1 rate-filing package concurrently with the regulatory authority and
86-2 the office. The regulatory authority may grant an extension of the
86-3 120-day period or waive the rate-filing package requirement on
86-4 agreement of the parties. The regulatory authority shall make a
86-5 final determination concerning the matter not later than the 185th
86-6 day after the date the utility files the rate-filing package.
86-7 However, the 185-day period is extended two days for each one day
86-8 of actual hearing on the merits of the case that exceeds 15 days.
86-9 (d) At any time after an initial complaint is filed under
86-10 this section, the regulatory authority may issue an interim order
86-11 fixing temporary rates for the utility that will continue until a
86-12 final determination on the matter is made. On issuance of a final
86-13 order, the regulatory authority may require the utility to refund
86-14 to customers or to credit against future bills all sums collected
86-15 during the period in which those temporary rates were in effect
86-16 that are in excess of the rate finally ordered, plus interest at
86-17 the current rate as finally determined by the commission or, if the
86-18 amounts collected during the period in which the temporary rates
86-19 were in effect are less than the amounts that would have been
86-20 collected under the rate finally ordered, the regulatory authority
86-21 shall authorize the utility to surcharge bills to recover the
86-22 difference between those amounts, plus interest on the amount of
86-23 the difference at the current rate as finally determined by the
86-24 commission.
86-25 (e) If the 185-day period has been extended as provided by
86-26 Subsection (c) of this section and the regulatory authority has not
86-27 issued a final order or fixed temporary rates on or before the
87-1 185th day, the rates charged by the utility on that 185th day
87-2 automatically become temporary rates. On issuance of a final
87-3 order, the regulatory authority shall require the utility to refund
87-4 to customers or to credit against future bills all sums collected
87-5 during the period in which those temporary rates were in effect
87-6 that are in excess of the rate finally ordered, plus interest at
87-7 the current rate as finally determined by the commission or, if the
87-8 amounts collected during the period in which the temporary rates
87-9 were in effect are less than the amounts that would have been
87-10 collected under the rate finally ordered, the regulatory authority
87-11 shall authorize the utility to surcharge bills to recover the
87-12 difference between those amounts, plus interest on the amount of
87-13 the difference at the current rate as finally determined by the
87-14 commission.
87-15 SECTION 2.20. Sections 2.212(a), (e), and (g), Public
87-16 Utility Regulatory Act of 1995, as enacted by S.B. No. 319, Acts
87-17 of the 74th Legislature, Regular Session, 1995, are amended to read
87-18 as follows:
87-19 (a) Except as provided by Section 2.105(c) of this Act, a
87-20 <A> utility may not make changes in its rates except by filing a
87-21 statement of intent concurrently with the office and the regulatory
87-22 authority having original jurisdiction at least 35 days prior to
87-23 the effective date of the proposed change. The statement of intent
87-24 shall include proposed revisions of tariffs and schedules and a
87-25 statement specifying in detail each proposed change, the effect the
87-26 proposed change is expected to have on the revenues of the company,
87-27 the classes and numbers of utility consumers affected, and such
88-1 other information as may be required by the regulatory authority's
88-2 rules and regulations. A copy of the statement of intent shall be
88-3 mailed or delivered to the appropriate officer of each affected
88-4 municipality, and notice shall be given by publication in
88-5 conspicuous form and place of a notice to the public of such
88-6 proposed change once in each week for four successive weeks prior
88-7 to the effective date of the proposed change in a newspaper having
88-8 general circulation in each county containing territory affected by
88-9 the proposed change and by mail to such other affected persons as
88-10 may be required by the regulatory authority's rules and
88-11 regulations. The regulatory authority may waive the publication of
88-12 notice requirement prescribed by this subsection in a proceeding
88-13 that involves a rate reduction for all affected ratepayers only.
88-14 The applicant shall give notice of the proposed rate change by mail
88-15 to all affected utility customers. The regulatory authority by
88-16 rule shall also define other proceedings for which the publication
88-17 of notice requirement prescribed by this subsection may be waived
88-18 on a showing of good cause, provided that a waiver may not be
88-19 granted in any proceeding involving a rate increase to any class or
88-20 category of ratepayer.
88-21 (e) If the 150-day period has been extended, as provided for
88-22 in Subsection (d) of this section, and the commission fails to make
88-23 its final determination of rates within 150 days from the date that
88-24 the proposed change otherwise would have gone into effect, the
88-25 utility concerned may put a changed rate, not to exceed the
88-26 proposed rate, into effect throughout all areas in which the
88-27 utility sought to change its rates, including the areas over which
89-1 the commission is exercising its appellate and its original
89-2 jurisdiction, on the filing with the commission <regulatory
89-3 authority> of a bond payable to the commission <regulatory
89-4 authority> in an amount and with sureties approved by the
89-5 commission <regulatory authority> conditioned upon refund and in a
89-6 form approved by the commission <regulatory authority>. The
89-7 utility concerned shall refund or credit against future bills all
89-8 sums collected during the period of suspension in excess of the
89-9 rate finally ordered plus interest at the current rate as finally
89-10 determined by the commission <regulatory authority>.
89-11 (g)(1) Except as permitted by Section 2.051 of this Act, a
89-12 <A> rate or tariff set by the commission may not authorize a
89-13 utility to automatically adjust and pass through to its customers
89-14 changes in fuel or other costs of the utility.
89-15 (2)(A) Subdivision (1) of this subsection does not
89-16 prohibit the commission from reviewing and providing for
89-17 adjustments of a utility's fuel factor. The commission by rule
89-18 shall implement procedures that provide for the timely adjustment
89-19 of a utility's fuel factor, with or without a hearing. The
89-20 procedures shall provide that the findings required by Section
89-21 2.208(b) of this Act regarding fuel transactions with affiliated
89-22 interests are made in a fuel reconciliation proceeding or in a rate
89-23 case filed under Subsection (a) of this section or under Section
89-24 2.211 of this Act. The procedures shall provide an affected party
89-25 notice and the opportunity to request a hearing before the
89-26 commission. However, the commission may adjust a utility's fuel
89-27 factor without a hearing if the commission determines that a
90-1 hearing is not necessary. If the commission holds a hearing, the
90-2 <Any revision of a utility's billings to its customers to allow for
90-3 the recovery of additional fuel costs may be made only upon a
90-4 public hearing and order of the commission.>
90-5 <(B) The> commission may consider any evidence
90-6 that is appropriate and in the public interest at such hearing.
90-7 The commission shall render a timely decision approving,
90-8 disapproving, or modifying the adjustment to the utility's fuel
90-9 factor.
90-10 (B) The commission by rule shall provide for the
90-11 reconciliation of a utility's fuel costs on a timely basis.
90-12 (C) A proceeding under this subsection may not
90-13 be considered a rate case under this section.
90-14 (3) <The commission may, after a hearing, grant
90-15 interim relief for fuel cost increases that are the result of
90-16 unusual and emergency circumstances or conditions.>
90-17 <(4)>(A) This subsection applies only to increases or
90-18 decreases in the cost of purchased electricity which have been:
90-19 (i) accepted by a federal regulatory
90-20 authority; or
90-21 (ii) approved after a hearing by the
90-22 commission.
90-23 (B) The commission may utilize any appropriate
90-24 method to provide for the adjustment of the cost of purchased
90-25 electricity upon such terms and conditions as the commission may
90-26 determine. Such purchased electricity costs may be recovered
90-27 concurrently with the effective date of the changed costs to the
91-1 purchasing utility or as soon thereafter as is reasonably
91-2 practical.
91-3 (C) The commission may also provide for a
91-4 mechanism to allow any public utility that has a noncontiguous
91-5 geographical service area, and that purchases power for resale for
91-6 that noncontiguous service area from public utilities that are not
91-7 members of the Electric Reliability Council of Texas, to recover
91-8 purchased power cost for that area in a manner that reflects the
91-9 purchased power cost for that specific geographical noncontiguous
91-10 area. The commission may not, however, require such a mechanism
91-11 for any electric cooperative corporation unless requested by the
91-12 electric cooperative corporation.
91-13 SECTION 2.21. Section 2.251, Public Utility Regulatory Act
91-14 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
91-15 Regular Session, 1995, is amended to read as follows:
91-16 Sec. 2.251. DEFINITION. For the purposes of this subtitle
91-17 only, "retail public utility" means any person, corporation,
91-18 municipality, political subdivision or agency, or cooperative
91-19 corporation, now or hereafter <operating, maintaining, or
91-20 controlling in Texas facilities for> providing retail public
91-21 utility service, including retail electric service, to an ultimate
91-22 consumer of electricity in this state.
91-23 SECTION 2.22. Sections 2.254(a) and (c), Public Utility
91-24 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
91-25 74th Legislature, Regular Session, 1995, are amended to read as
91-26 follows:
91-27 (a) A public utility shall submit to the commission an
92-1 application to obtain a certificate of public convenience and
92-2 necessity or an amendment thereof. The utility shall file
92-3 concurrently with the office a copy of the application.
92-4 (c) Each applicant for a certificate shall file with the
92-5 commission and the office such evidence as is required by the
92-6 commission to show that the applicant has received the required
92-7 consent, franchise, or permit of the proper municipality or other
92-8 public authority.
92-9 SECTION 2.23. Sections 2.255(d)-(f), Public Utility
92-10 Regulatory Act of 1995, as enacted by S.B. No. 319, Acts of the
92-11 74th Legislature, Regular Session, 1995, are amended to read as
92-12 follows:
92-13 (d) This section does not apply to a certificate of
92-14 convenience and necessity for an electric generating plant that is
92-15 requested under Section 2.051 of this Act. The commission may
92-16 grant a certificate of convenience and necessity for an electric
92-17 generating plant only in accordance with Section 2.051 of this Act.
92-18 (e) <(1) In addition to the requirements of this section, an
92-19 electric utility applying for a certificate of convenience and
92-20 necessity for a new generating plant must first file a notice of
92-21 intent to file an application for certification.>
92-22 <(2) The notice of intent shall set out alternative
92-23 methods considered to help meet the electrical needs, related
92-24 electrical facilities, and the advantages and disadvantages of the
92-25 alternatives. In addition, the notice shall indicate compatibility
92-26 with the most recent long-term forecast provided in this Act.>
92-27 <(3) The commission shall conduct a hearing on the
93-1 notice of intent to determine the appropriateness of the proposed
93-2 generating plant as compared to the alternatives and shall issue a
93-3 report on its findings. In conjunction with the issuance of the
93-4 report, the commission shall render a decision approving or
93-5 disapproving the notice. Such decision shall be rendered within
93-6 180 days from the date of filing the notice of intent.>
93-7 <(e)(1) On approval of the notice of intent, a utility may
93-8 apply for certification for a generating plant, site, and site
93-9 facilities not later than 12 months before construction is to
93-10 commence.>
93-11 <(2) The application for certification shall contain
93-12 such information as the commission may require to justify the
93-13 proposed generating plant, site, and site facilities and to allow a
93-14 determination showing compatibility with the most recent forecast.>
93-15 <(3) Certificates of convenience and necessity shall
93-16 be granted on a nondiscriminatory basis if the commission finds
93-17 that the proposed new plant is required under the service area
93-18 forecast, that it is the best and most economical choice of
93-19 technology for that service area as compatible with the
93-20 commission's forecast, and that conservation and alternative energy
93-21 sources cannot meet the need.>
93-22 <(f)> If the application for a certificate of convenience
93-23 and necessity involves new transmission facilities, the commission
93-24 shall approve or deny the application within one year after the
93-25 date the application is filed. If the commission does not approve
93-26 or deny the application before this deadline, any party may seek a
93-27 writ of mandamus in a district court of Travis County to compel the
94-1 commission to make a decision on the application.
94-2 SECTION 2.24. Section 2.264, Public Utility Regulatory Act
94-3 of 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
94-4 Regular Session, 1995, is amended by adding Subsection (c) to read
94-5 as follows:
94-6 (c) The commission may revoke a certificate for a generating
94-7 plant under construction if the commission finds that construction
94-8 of the plant is no longer the lowest-cost option, taking into
94-9 consideration the cost to complete the plant relative to other
94-10 alternatives, and finds that it is no longer in the public
94-11 interest. The burden of proof in a proceeding to revoke a
94-12 certificate under this section is on the party contending that the
94-13 certificate should be revoked. The commission shall ensure that
94-14 the utility is made whole for all prudent expenditures associated
94-15 with the planning, design, construction, cancellation, and
94-16 dismantlement of the plant.
94-17 SECTION 2.25. Section 2302.043, Government Code, is amended
94-18 to read as follows:
94-19 Sec. 2302.043. Order or Ruling. (a) A commission order or
94-20 ruling entered under this chapter is considered to have been
94-21 entered or adopted under the Public Utility Regulatory Act of 1995
94-22 <(Article 1446c, Vernon's Texas Civil Statutes)>.
94-23 (b) A commission order or ruling entered under this chapter
94-24 is enforced under Subtitle I, Title I, <Sections 71 through 77 of
94-25 the> Public Utility Regulatory Act of 1995 <(Article 1446c,
94-26 Vernon's Texas Civil Statutes)>.
94-27 SECTION 2.26. (a) The Public Utility Commission of Texas by
95-1 rule shall adopt a statewide integrated resource planning process
95-2 as required by Section 2.051, Public Utility Regulatory Act of
95-3 1995, as enacted by S.B. No. 319, Acts of the 74th Legislature,
95-4 Regular Session, 1995, and as amended by this Act, not later than
95-5 September 1, 1996.
95-6 (b) The changes in law made by this Act to Section 2.255,
95-7 Public Utility Regulatory Act of 1995, as enacted by S.B. No. 319,
95-8 Acts of the 74th Legislature, Regular Session, 1995, take effect
95-9 September 1, 1996, and apply only to an application for a
95-10 certificate of convenience and necessity filed on or after that
95-11 date, except that, in the case of a utility for which the
95-12 commission has not yet approved an individual integrated resource
95-13 plan as of September 1, 1996, an application for a certificate of
95-14 convenience and necessity is governed by the law in effect
95-15 immediately preceding the effective date of this Act until the
95-16 commission approves an integrated resource plan for the utility.
95-17 SECTION 2.27. The Public Utility Commission of Texas shall
95-18 adopt the initial rules required by Section 2.057, Public Utility
95-19 Regulatory Act of 1995, as added by this Act, before September 1,
95-20 1996.
95-21 SECTION 2.28. An exempt wholesale generator or power
95-22 marketer required to register under Section 2.053(c), Public
95-23 Utility Regulatory Act of 1995, as added by this Act, shall
95-24 register not later than the 90th day after the effective date of
95-25 this Act.
95-26 SECTION 2.29. Except as otherwise provided by this Act, this
95-27 Act takes effect September 1, 1995.
96-1 SECTION 2.30. The importance of this legislation and the
96-2 crowded condition of the calendars in both houses create an
96-3 emergency and an imperative public necessity that the
96-4 constitutional rule requiring bills to be read on three several
96-5 days in each house be suspended, and this rule is hereby suspended,
96-6 and that this Act take effect and be in force according to its
96-7 terms, and it is so enacted.