Texas Laws - Utility Code
UTILITIES CODE
TITLE 2. PUBLIC UTILITY REGULATORY ACT

SUBTITLE A. PROVISIONS APPLICABLE TO ALL UTILITIES (20)(1-click HTML)

CHAPTER 11. GENERAL PROVISIONS (21)(1-click HTML)
Sec. 11.001. SHORT TITLE. (22)(1-click HTML)

This title may be cited as the Public Utility Regulatory Act. (23)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (24)

Sec. 11.002. PURPOSE AND FINDINGS. (25)(1-click HTML)

(a) This title is enacted to protect the public interest inherent in the rates and services of public utilities. The purpose of this title is to establish a comprehensive and adequate regulatory system for public utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the utilities. (26)

(b) Public utilities traditionally are by definition monopolies in the areas they serve. As a result, the normal forces of competition that regulate prices in a free enterprise society do not operate. Public agencies regulate utility rates, operations, and services as a substitute for competition. (27)

(c) Significant changes have occurred in the telecommunications and electric power industries since the Public Utility Regulatory Act was originally adopted. Changes in technology and market structure have increased the need for minimum standards of service quality, customer service, and fair business practices to ensure high-quality service to customers and a healthy marketplace where competition is permitted by law. It is the purpose of this title to grant the Public Utility Commission of Texas authority to make and enforce rules necessary to protect customers of telecommunications and electric services consistent with the public interest. (28)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1579, Sec. 1, eff. Aug. 30, 1999. (29)

Sec. 11.003. DEFINITIONS. (30)(1-click HTML)

In this title: (31)

(1) "Affected person" means: (32)

(A) a public utility or electric cooperative affected by an action of a regulatory authority; (33)

(B) a person whose utility service or rates are affected by a proceeding before a regulatory authority; or (34)

(C) a person who: (35)

(i) is a competitor of a public utility with respect to a service performed by the utility; or (36)

(ii) wants to enter into competition with a public utility. (37)

(2) "Affiliate" means: (38)

(A) a person who directly or indirectly owns or holds at least five percent of the voting securities of a public utility; (39)

(B) a person in a chain of successive ownership of at least five percent of the voting securities of a public utility; (40)

(C) a corporation that has at least five percent of its voting securities owned or controlled, directly or indirectly, by a public utility; (41)

(D) a corporation that has at least five percent of its voting securities owned or controlled, directly or indirectly, by: (42)

(i) a person who directly or indirectly owns or controls at least five percent of the voting securities of a public utility; or (43)

(ii) a person in a chain of successive ownership of at least five percent of the voting securities of a public utility; (44)

(E) a person who is an officer or director of a public utility or of a corporation in a chain of successive ownership of at least five percent of the voting securities of a public utility; or (45)

(F) a person determined to be an affiliate under Section 11.006. (46)

(3) "Allocation" means the division among municipalities or among municipalities and unincorporated areas of the plant, revenues, expenses, taxes, and reserves of a utility used to provide public utility service in a municipality or for a municipality and unincorporated areas. (47)

(4) "Commission" means the Public Utility Commission of Texas. (48)

(5) "Commissioner" means a member of the Public Utility Commission of Texas. (49)

(6) "Cooperative corporation" means: (50)

(A) an electric cooperative; or (51)

(B) a telephone cooperative corporation organized under Chapter 162 or a predecessor statute to Chapter 162 and operating under that chapter. (52)

(7) "Corporation" means a domestic or foreign corporation, joint-stock company, or association, and each lessee, assignee, trustee, receiver, or other successor in interest of the corporation, company, or association, that has any of the powers or privileges of a corporation not possessed by an individual or partnership. The term does not include a municipal corporation or electric cooperative, except as expressly provided by this title. (53)

(8) "Counsellor" means the public utility counsel. (54)

(9) "Electric cooperative" means: (55)

(A) a corporation organized under Chapter 161 or a predecessor statute to Chapter 161 and operating under that chapter; or (56)

(B) a corporation organized as an electric cooperative in a state other than Texas that has obtained a certificate of authority to conduct affairs in the State of Texas. (57)

(C) Deleted by Acts 2003, 78th Leg., ch. 1327, Sec. 1. (58)

(10) "Facilities" means all of the plant and equipment of a public utility, and includes the tangible and intangible property, without limitation, owned, operated, leased, licensed, used, controlled, or supplied for, by, or in connection with the business of the public utility. (59)

(11) "Municipally owned utility" means a utility owned, operated, and controlled by a municipality or by a nonprofit corporation the directors of which are appointed by one or more municipalities. (60)

(12) "Office" means the Office of Public Utility Counsel. (61)

(13) "Order" means all or a part of a final disposition by a regulatory authority in a matter other than rulemaking, without regard to whether the disposition is affirmative or negative or injunctive or declaratory. The term includes: (62)

(A) the issuance of a certificate of convenience and necessity; and (63)

(B) the setting of a rate. (64)

(14) "Person" includes an individual, a partnership of two or more persons having a joint or common interest, a mutual or cooperative association, and a corporation, but does not include an electric cooperative. (65)

(15) "Proceeding" means a hearing, investigation, inquiry, or other procedure for finding facts or making a decision under this title. The term includes a denial of relief or dismissal of a complaint. (66)

(16) "Rate" includes: (67)

(A) any compensation, tariff, charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by a public utility for a service, product, or commodity described in the definition of utility in Section 31.002 or 51.002; and (68)

(B) a rule, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification. (69)

(17) "Ratemaking proceeding" means a proceeding in which a rate is changed. (70)

(18) "Regulatory authority" means either the commission or the governing body of a municipality, in accordance with the context. (71)

(19) "Service" has its broadest and most inclusive meaning. The term includes any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utility's duties under this title to its patrons, employees, other public utilities, an electric cooperative, and the public. The term also includes the interchange of facilities between two or more public utilities. The term does not include the printing, distribution, or sale of advertising in a telephone directory. (72)

(20) "Test year" means the most recent 12 months, beginning on the first day of a calendar or fiscal year quarter, for which operating data for a public utility are available. (73)

(21) "Trade association" means a nonprofit, cooperative, and voluntarily joined association of business or professional persons who are employed by public utilities or utility competitors to assist the public utility industry, a utility competitor, or the industry's or competitor's employees in dealing with mutual business or professional problems and in promoting their common interest. (74)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 1, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1327, Sec. 1, eff. Sept. 1, 2003. (75)

Sec. 11.004. DEFINITION OF UTILITY. (76)(1-click HTML)

In Subtitle A, "public utility" or "utility" means: (77)

(1) an electric utility, as that term is defined by Section 31.002; or (78)

(2) a public utility or utility, as those terms are defined by Section 51.002. (79)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (80)

Sec. 11.0042. DEFINITION OF AFFILIATE. (81)(1-click HTML)

(a) The term "person" or "corporation" as used in the definition of "affiliate" provided by Section 11.003(2) does not include: (82)

(1) a broker or dealer registered under the Securities Exchange Act of 1934 (15 U.S.C. Section 78a et seq.), as amended; (83)

(2) a bank or insurance company as defined under the Securities Exchange Act of 1934 (15 U.S.C. Section 78a et seq.), as amended; (84)

(3) an investment adviser registered under state law or the Investment Advisers Act of 1940 (15 U.S.C. Section 80b-1 et seq.); or (85)

(4) an investment company registered under the Investment Company Act of 1940 (15 U.S.C. Section 80a-1 et seq.); or (86)

(5) an employee benefit plan, pension fund, endowment fund, or other similar entity that may, directly or indirectly, own, hold, or control five percent or more of the voting securities of a public utility or the parent corporation of a public utility if the entity did not acquire the voting securities: (87)

(A) for the purpose of or with the effect of changing or influencing the control of the issuer of the securities; or (88)

(B) in connection with or as a participant in any transaction that changes or influences the control of the issuer of the securities. (89)

(b) For the purpose of determining whether a person is an affiliate under Section 11.006(a)(3), the term "person" does not include an entity that may, directly or indirectly, own, hold, or control the voting securities of a public utility or the parent corporation of a public utility if the entity did not acquire the voting securities: (90)

(1) for the purpose of or with the effect of changing or influencing the control of the issuer of the securities; or (91)

(2) in connection with or as a participant in any transaction that changes or influences the control of the issuer of the securities. (92)

(c) A report filed by an entity described by Subsection (a)(5) or (b) with the Securities and Exchange Commission is conclusive evidence of the entity's intent if the report confirms that the voting securities were not acquired: (93)

(1) for the purpose of or with the effect of changing or influencing the control of the issuer of the securities; or (94)

(2) in connection with or as a participant in any transaction that changes or influences the control of the issuer of the securities. (95)

Added by Acts 2005, 79th Leg., Ch. 413 (S.B. 1668), Sec. 2, eff. June 17, 2005. (96)

Sec. 11.005. ENTITY, COMPETITOR, OR SUPPLIER AFFECTED IN MANNER OTHER THAN BY SETTING OF RATES. (97)(1-click HTML)

In this title, an entity, including a utility competitor or utility supplier, is considered to be affected in a manner other than by the setting of rates for that class of customer if during a relevant calendar year the entity provides fuel, utility-related goods, utility-related products, or utility-related services to a regulated or unregulated provider of telecommunications or electric services or to an affiliate in an amount equal to the greater of $10,000 or 10 percent of the person's business. (98)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (99)

Sec. 11.006. PERSON DETERMINED TO BE AFFILIATE. (100)(1-click HTML)

(a) The commission may determine that a person is an affiliate for purposes of this title if the commission after notice and hearing finds that the person: (101)

(1) actually exercises substantial influence or control over the policies and actions of a public utility; (102)

(2) is a person over which a public utility exercises the control described by Subdivision (1); (103)

(3) is under common control with a public utility; or (104)

(4) together with one or more persons with whom the person is related by ownership or blood relationship, or by action in concert, actually exercises substantial influence over the policies and actions of a public utility even though neither person may qualify as an affiliate individually. (105)

(b) For purposes of Subsection (a)(3), "common control with a public utility" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of another, without regard to whether that power is established through ownership or voting of securities or by any other direct or indirect means. (106)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (107)

Sec. 11.007. ADMINISTRATIVE PROCEDURE. (108)(1-click HTML)

(a) Chapter 2001, Government Code, applies to a proceeding under this title except to the extent inconsistent with this title. (109)

(b) A communication of a member or employee of the commission with any person, including a party or a party's representative, is governed by Section 2001.061, Government Code. (110)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (111)

Sec. 11.008. LIBERAL CONSTRUCTION. (112)(1-click HTML)

This title shall be construed liberally to promote the effectiveness and efficiency of regulation of public utilities to the extent that this construction preserves the validity of this title and its provisions. (113)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (114)

Sec. 11.009. CONSTRUCTION WITH FEDERAL AUTHORITY. (115)(1-click HTML)

This title shall be construed to apply so as not to conflict with any authority of the United States. (116)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (117)

CHAPTER 12. ORGANIZATION OF COMMISSION (118)(1-click HTML)
SUBCHAPTER A. GENERAL PROVISIONS (119)(1-click HTML)
Sec. 12.001. PUBLIC UTILITY COMMISSION OF TEXAS. (120)(1-click HTML)

The Public Utility Commission of Texas exercises the jurisdiction and powers conferred by this title. (121)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (122)

Sec. 12.002. OFFICE. (123)(1-click HTML)

(a) The principal office of the commission is in Austin. (124)

(b) The office shall be open daily during usual business hours. The office is not required to be open on Saturday, Sunday, or a legal holiday. (125)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (126)

Sec. 12.003. SEAL. (127)(1-click HTML)

(a) The commission has a seal bearing the inscription: "Public Utility Commission of Texas." (128)

(b) The seal shall be affixed to each record and to an authentication of a copy of a record. The commission may require the seal to be affixed to other instruments. (129)

(c) A court of this state shall take judicial notice of the seal. (130)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (131)

Sec. 12.004. REPRESENTATION BY THE ATTORNEY GENERAL. (132)(1-click HTML)

The attorney general shall represent the commission in a matter before a state court, a court of the United States, or a federal public utility regulatory commission. (133)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (134)

Sec. 12.005. APPLICATION OF SUNSET ACT. (135)(1-click HTML)

The Public Utility Commission of Texas is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter or by Chapter 39, the commission is abolished and this title expires September 1, 2023. (136)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 2, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1212, Sec. 1, eff. Sept. 1, 1999. (137)

Amended by: (138)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 1, eff. September 1, 2005. (139)

Acts 2011, 82nd Leg., R.S., Ch. 1232 (S.B. 652), Sec. 1.08(a), eff. June 17, 2011. (140)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.01, eff. September 1, 2013. (141)

SUBCHAPTER B. COMMISSION APPOINTMENT AND FUNCTIONS (142)(1-click HTML)
Sec. 12.051. APPOINTMENT; TERM. (143)(1-click HTML)

(a) The commission is composed of three commissioners appointed by the governor with the advice and consent of the senate. (144)

(b) An appointment to the commission shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (145)

(c) Commissioners serve staggered, six-year terms. (146)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (147)

Sec. 12.052. PRESIDING OFFICER. (148)(1-click HTML)

(a) The governor shall designate a commissioner as the presiding officer. (149)

(b) The presiding officer serves in that capacity at the pleasure of the governor. (150)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (151)

Sec. 12.053. MEMBERSHIP QUALIFICATIONS. (152)(1-click HTML)

(a) To be eligible for appointment, a commissioner must: (153)

(1) be a qualified voter; (154)

(2) be a citizen of the United States; (155)

(3) be a competent and experienced administrator; (156)

(4) be well informed and qualified in the field of public utilities and utility regulation; and (157)

(5) have at least five years of experience in the administration of business or government or as a practicing attorney or certified public accountant. (158)

(b) A person is not eligible for appointment as a commissioner if the person: (159)

(1) at any time during the two years preceding appointment: (160)

(A) personally served as an officer, director, owner, employee, partner, or legal representative of a public utility regulated by the commission or of an affiliate or direct competitor of a public utility regulated by the commission; or (161)

(B) owned or controlled, directly or indirectly, more than a 10 percent interest in a public utility regulated by the commission or in an affiliate or direct competitor of a public utility regulated by the commission; or (162)

(2) is not qualified to serve under Section 12.151, 12.152, or 12.153. (163)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (164)

Amended by: (165)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.02, eff. September 1, 2013. (166)

Sec. 12.054. REMOVAL OF COMMISSIONER. (167)(1-click HTML)

(a) It is a ground for removal from the commission if a commissioner: (168)

(1) does not have at the time of appointment or maintain during service on the commission the qualifications required by Section 12.053; (169)

(2) violates a prohibition provided by Section 12.053 or by Subchapter D; (170)

(3) cannot discharge the commissioner's duties for a substantial part of the term for which the commissioner is appointed because of illness or disability; or (171)

(4) is absent from more than half of the regularly scheduled commission meetings that the commissioner is eligible to attend during a calendar year unless the absence is excused by majority vote of the commission. (172)

(b) The validity of an action of the commission is not affected by the fact that the action is taken when a ground for removal of a commissioner exists. (173)

(c) If the executive director has knowledge that a potential ground for removal exists, the executive director shall notify the presiding officer of the commission of the potential ground. The presiding officer shall then notify the governor and the attorney general that a potential ground for removal exists. If the potential ground for removal involves the presiding officer, the executive director shall notify the next highest officer of the commission, who shall notify the governor and the attorney general that a potential ground for removal exists. (174)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (175)

Sec. 12.055. PROHIBITION ON SEEKING ANOTHER OFFICE. (176)(1-click HTML)

A person may not seek nomination or election to another civil office of this state or of the United States while serving as a commissioner. If a commissioner files for nomination or election to another civil office of this state or of the United States, the person's office as commissioner immediately becomes vacant, and the governor shall appoint a successor. (177)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (178)

Sec. 12.056. EFFECT OF VACANCY. (179)(1-click HTML)

A vacancy or disqualification does not prevent the remaining commissioner or commissioners from exercising the powers of the commission. (180)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (181)

Sec. 12.057. COMPENSATION. (182)(1-click HTML)

The annual salary of the commissioners is determined by the legislature. (183)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (184)

Sec. 12.058. MEETINGS. (185)(1-click HTML)

The commission shall hold meetings at its office and at other convenient places in this state as expedient and necessary for the proper performance of the commission's duties. (186)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (187)

Sec. 12.059. TRAINING PROGRAM FOR COMMISSIONERS. (188)(1-click HTML)

(a) Before a commissioner may assume the commissioner's duties and before the commissioner may be confirmed by the senate, the commissioner must complete at least one course of the training program established under this section. (189)

(b) A training program established under this section shall provide information to the commissioner regarding: (190)

(1) the enabling legislation that created the commission and its policymaking body to which the commissioner is appointed to serve; (191)

(2) the programs operated by the commission; (192)

(3) the role and functions of the commission; (193)

(4) the rules of the commission with an emphasis on the rules that relate to disciplinary and investigatory authority; (194)

(5) the current budget for the commission; (195)

(6) the results of the most recent formal audit of the commission; (196)

(7) the requirements of Chapters 551, 552, and 2001, Government Code; (197)

(8) the requirements of the conflict of interest laws and other laws relating to public officials; and (198)

(9) any applicable ethics policies adopted by the commission or the Texas Ethics Commission. (199)

(c) A person who is appointed to the commission is entitled to reimbursement, as provided by the General Appropriations Act, for the travel expenses incurred in attending the training program regardless of whether the attendance at the program occurs before or after the person qualifies for office. (200)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (201)

Amended by: (202)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 2, eff. September 1, 2005. (203)

SUBCHAPTER C. COMMISSION PERSONNEL (204)(1-click HTML)
Sec. 12.101. COMMISSION EMPLOYEES. (205)(1-click HTML)

The commission shall employ: (206)

(1) an executive director; and (207)

(2) officers and other employees the commission considers necessary to administer this title. (208)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 3, eff. Sept. 1, 1999. (209)

Sec. 12.102. DUTIES OF EMPLOYEES. (210)(1-click HTML)

The commission shall develop and implement policies that clearly separate the policymaking responsibilities of the commission and the management responsibilities of the commission employees. (211)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (212)

Amended by: (213)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 3, eff. September 1, 2005. (214)

Sec. 12.103. DUTIES OF EXECUTIVE DIRECTOR. (215)(1-click HTML)

The executive director is responsible for the daily operations of the commission and shall coordinate the activities of commission employees. (216)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (217)

Sec. 12.105. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS; MERIT PAY. (218)(1-click HTML)

(a) The executive director or the executive director's designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for commission employees. The program shall require intra-agency posting of each position concurrently with any public posting. (219)

(b) The executive director or the executive director's designee shall develop a system of annual performance evaluations that are based on documented employee performance. Merit pay for commission employees must be based on the system established under this subsection. (220)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (221)

Sec. 12.106. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT. (222)(1-click HTML)

(a) The executive director or the executive director's designee shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. (223)

(b) The policy statement under Subsection (a) must include: (224)

(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that are in compliance with the requirements of Chapter 21, Labor Code; (225)

(2) a comprehensive analysis of the commission workforce that meets federal and state guidelines; (226)

(3) procedures by which a determination can be made about the extent of underuse in the commission workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and (227)

(4) reasonable methods to appropriately address the underuse. (228)

(c) A policy statement prepared under Subsection (b) must: (229)

(1) cover an annual period; (230)

(2) be updated at least annually; (231)

(3) be reviewed by the Commission on Human Rights for compliance with Subsection (b)(1); and (232)

(4) be filed with the governor's office. (233)

(d) The governor's office shall deliver a biennial report to the legislature based on the information received under Subsection (c). The report may be made separately or as a part of other biennial reports to the legislature. (234)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (235)

SUBCHAPTER D. PROHIBITED RELATIONSHIPS AND ACTIVITIES (236)(1-click HTML)
Sec. 12.151. REGISTERED LOBBYIST. (237)(1-click HTML)

A person required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the commission may not serve as a commissioner. (238)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 4, eff. Sept. 1, 1999. (239)

Sec. 12.152. CONFLICT OF INTEREST. (240)(1-click HTML)

(a) A person is not eligible for appointment as a commissioner or executive director of the commission if: (241)

(1) the person serves on the board of directors of a company that supplies fuel, utility-related services, or utility-related products to regulated or unregulated electric or telecommunications utilities; or (242)

(2) the person or the person's spouse: (243)

(A) is employed by or participates in the management of a business entity or other organization that is regulated by or receives funds from the commission; (244)

(B) directly or indirectly owns or controls more than a 10 percent interest in: (245)

(i) a business entity or other organization that is regulated by or receives funds from the commission; or (246)

(ii) a utility competitor, utility supplier, or other entity affected by a commission decision in a manner other than by the setting of rates for that class of customer; (247)

(C) uses or receives a substantial amount of tangible goods, services, or funds from the commission, other than compensation or reimbursement authorized by law for commission membership, attendance, or expenses; or (248)

(D) notwithstanding Paragraph (B), has an interest in a mutual fund or retirement fund in which more than 10 percent of the fund's holdings at the time of appointment is in a single utility, utility competitor, or utility supplier in this state and the person does not disclose this information to the governor, senate, commission, or other entity, as appropriate. (249)

(b) A person otherwise ineligible because of Subsection (a)(2)(B) may be appointed to the commission and serve as a commissioner or may be employed as executive director if the person: (250)

(1) notifies the attorney general and commission that the person is ineligible because of Subsection (a)(2)(B); and (251)

(2) divests the person or the person's spouse of the ownership or control: (252)

(A) before beginning service or employment; or (253)

(B) if the person is already serving or employed, within a reasonable time. (254)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 4, eff. Sept. 1, 1999. (255)

Amended by: (256)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.03, eff. September 1, 2013. (257)

Sec. 12.153. RELATIONSHIP WITH TRADE ASSOCIATION. (258)(1-click HTML)

A person may not serve as a commissioner or be a commission employee who is employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if the person is: (259)

(1) an officer, employee, or paid consultant of a trade association; or (260)

(2) the spouse of an officer, manager, or paid consultant of a trade association. (261)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (262)

Amended by: (263)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 4, eff. September 1, 2005. (264)

Sec. 12.154. PROHIBITED ACTIVITIES. (265)(1-click HTML)

(a) During the period of service with the commission, a commissioner or commission employee may not: (266)

(1) have a pecuniary interest, including an interest as an officer, director, partner, owner, employee, attorney, or consultant, in: (267)

(A) a public utility or affiliate; or (268)

(B) a person a significant portion of whose business consists of furnishing goods or services to public utilities or affiliates; or (269)

(2) accept a gift, gratuity, or entertainment from: (270)

(A) a public utility, affiliate, or direct competitor of a public utility; (271)

(B) a person a significant portion of whose business consists of furnishing goods or services to public utilities, affiliates, or direct competitors of public utilities; or (272)

(C) an agent, representative, attorney, employee, officer, owner, director, or partner of a person described by Paragraph (A) or (B). (273)

(b) A commissioner or a commission employee may not directly or indirectly solicit, request from, or suggest or recommend to a public utility or an agent, representative, attorney, employee, officer, owner, director, or partner of a public utility the appointment to a position or the employment of a person by the public utility or affiliate. (274)

(c) A person may not give or offer to give a gift, gratuity, employment, or entertainment to a commissioner or commission employee if that person is: (275)

(1) a public utility, affiliate, or direct competitor of a public utility; (276)

(2) a person who furnishes goods or services to a public utility, affiliate, or direct competitor of a public utility; or (277)

(3) an agent, representative, attorney, employee, officer, owner, director, or partner of a person described by Subdivision (1) or (2). (278)

(d) A public utility, affiliate, or direct competitor of a public utility or a person furnishing goods or services to a public utility, affiliate, or direct competitor of a public utility may not aid, abet, or participate with a commissioner, commission employee, or former commission employee in conduct that violates Subsection (a)(3) or (c). (279)

(e) Subsection (a)(1) does not apply to an interest in a nonprofit group or association, other than a trade association, that is solely supported by gratuitous contributions of money, property, or services. (280)

(f) It is not a violation of this section if a commissioner or commission employee, on becoming the owner of stocks, bonds, or another pecuniary interest in a public utility, affiliate, or direct competitor of a public utility otherwise than voluntarily, informs the commission and the attorney general of the ownership and divests the ownership or interest within a reasonable time. (281)

(g) It is not a violation of this section if a pecuniary interest is held indirectly by ownership of an interest in a retirement system, institution, or fund that in the normal course of business invests in diverse securities independently of the control of the commissioner or commission employee. (282)

(h) This section does not apply to a contract for a public utility product or service or equipment for use of a public utility product when a commissioner or commission employee is acting as a consumer. (283)

(i) In this section, a "pecuniary interest" includes income, compensation, and payment of any kind, in addition to an ownership interest. (284)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (285)

Amended by: (286)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.04, eff. September 1, 2013. (287)

Sec. 12.155. PROHIBITION ON EMPLOYMENT OR REPRESENTATION. (288)(1-click HTML)

(a) A commissioner, a commission employee, or an employee of the State Office of Administrative Hearings involved in hearing utility cases may not: (289)

(1) be employed by a public utility that was in the scope of the commissioner's or employee's official responsibility while the commissioner or employee was associated with the commission or the State Office of Administrative Hearings; or (290)

(2) represent a person before the commission or State Office of Administrative Hearings or a court in a matter: (291)

(A) in which the commissioner or employee was personally involved while associated with the commission or State Office of Administrative Hearings; or (292)

(B) that was within the commissioner's or employee's official responsibility while the commissioner or employee was associated with the commission or State Office of Administrative Hearings. (293)

(b) The prohibition of Subsection (a)(1) applies until the: (294)

(1) second anniversary of the date the commissioner ceases to serve as a commissioner; and (295)

(2) first anniversary of the date the employee's employment with the commission or State Office of Administrative Hearings ceases. (296)

(c) The prohibition of Subsection (a)(2) applies while a commissioner, commission employee, or employee of the State Office of Administrative Hearings involved in hearing utility cases is associated with the commission or State Office of Administrative Hearings and at any time after. (297)

(d) A commissioner may not be employed by an independent organization certified under Section 39.151. The prohibition under this subsection applies until the second anniversary of the date the commissioner ceases to serve as a commissioner. (298)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (299)

Amended by: (300)

Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.05, eff. September 1, 2013. (301)

Sec. 12.156. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. (302)(1-click HTML)

The executive director or the executive director's designee shall provide to commissioners and commission employees as often as necessary information regarding their: (303)

(1) qualifications for office or employment under this title; and (304)

(2) responsibilities under applicable laws relating to standards of conduct for state officers and employees. (305)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (306)

SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND REPORTS (307)(1-click HTML)
Sec. 12.201. PUBLIC INTEREST INFORMATION. (308)(1-click HTML)

(a) The commission shall prepare information of public interest describing the functions of the commission and the commission's procedures by which a complaint is filed with and resolved by the commission. The commission shall make the information available to the public and appropriate state agencies. (309)

(b) The commission by rule shall establish methods by which consumers and service recipients are notified of the name, mailing address, and telephone number of the commission for the purpose of directing complaints to the commission. (310)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (311)

Sec. 12.202. PUBLIC PARTICIPATION. (312)(1-click HTML)

(a) The commission shall develop and implement policies that provide the public with a reasonable opportunity to appear before the commission and to speak on any issue under the jurisdiction of the commission. (313)

(b) The commission shall comply with federal and state laws related to program and facility accessibility. (314)

(c) The commission shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the commission's programs and services. (315)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (316)

Sec. 12.203. BIENNIAL REPORT. (317)(1-click HTML)

Not later than January 15 of each odd-numbered year, the commission shall prepare a written report that includes suggestions regarding modification and improvement of the commission's statutory authority and for the improvement of utility regulation in general that the commission considers appropriate for protecting and furthering the interest of the public. (318)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (319)

Amended by: (320)

Acts 2013, 83rd Leg., R.S., Ch. 1312 (S.B. 59), Sec. 94, eff. September 1, 2013. (321)

Sec. 12.204. INTERNET FOR HEARINGS AND MEETINGS. (322)(1-click HTML)

The commission shall make publicly accessible without charge live Internet video of all public hearings and meetings the commission holds for viewing from the Internet website found at http://www.puc.state.tx.us. The commission may recover the costs of administering this section by imposing an assessment against a: (323)

(1) public utility; (324)

(2) corporation described by Section 32.053; (325)

(3) retail electric provider that serves more than 250,000 customers; or (326)

(4) power generation company that owns more than 5,000 megawatts of installed capacity in this state. (327)

Added by Acts 2009, 81st Leg., R.S., Ch. 400 (H.B. 1783), Sec. 1, eff. September 1, 2009. (328)

SUBCHAPTER F. HISTORICALLY UNDERUTILIZED BUSINESSES (329)(1-click HTML)
Sec. 12.251. DEFINITION. (330)(1-click HTML)

In this subchapter, "historically underutilized business" has the meaning assigned by Section 481.101, Government Code. (331)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (332)

Sec. 12.252. COMMISSION AUTHORITY. (333)(1-click HTML)

The commission, after notice and hearing, may require each utility subject to regulation under this title to make an effort to overcome the underuse of historically underutilized businesses. (334)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (335)

Sec. 12.253. REPORT REQUIRED. (336)(1-click HTML)

The commission shall require each utility subject to regulation under this title to prepare and submit to the commission a comprehensive annual report detailing its use of historically underutilized businesses. (337)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (338)

Sec. 12.254. DISCRIMINATION PROHIBITED. (339)(1-click HTML)

The rules adopted under this subchapter may not be used to discriminate against a citizen on the basis of sex, race, color, creed, or national origin. (340)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (341)

Sec. 12.255. CAUSE OF ACTION NOT CREATED. (342)(1-click HTML)

This subchapter does not create a public or private cause of action. (343)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (344)

CHAPTER 13. OFFICE OF PUBLIC UTILITY COUNSEL (345)(1-click HTML)
SUBCHAPTER A. GENERAL PROVISIONS; POWERS AND DUTIES (346)(1-click HTML)
Sec. 13.001. OFFICE OF PUBLIC UTILITY COUNSEL. (347)(1-click HTML)

The independent office of public utility counsel represents the interests of residential and small commercial consumers. (348)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (349)

Sec. 13.002. APPLICATION OF SUNSET ACT. (350)(1-click HTML)

The Office of Public Utility Counsel is subject to Chapter 325, Government Code (Texas Sunset Act). Unless continued in existence as provided by that chapter, the office is abolished and this chapter expires September 1, 2023. (351)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 5, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1212, Sec. 2, eff. Sept. 1, 1999. (352)

Amended by: (353)

Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 1, eff. September 1, 2005. (354)

Acts 2011, 82nd Leg., R.S., Ch. 1232 (S.B. 652), Sec. 6.02, eff. June 17, 2011. (355)

Sec. 13.003. OFFICE POWERS AND DUTIES. (356)(1-click HTML)

(a) The office: (357)

(1) shall assess the effect of utility rate changes and other regulatory actions on residential consumers in this state; (358)

(2) shall advocate in the office's own name a position determined by the counsellor to be most advantageous to a substantial number of residential consumers; (359)

(3) may appear or intervene, as a party or otherwise, as a matter of right on behalf of: (360)

(A) residential consumers, as a class, in any proceeding before the commission, including an alternative dispute resolution proceeding; and (361)

(B) small commercial consumers, as a class, in any proceeding in which the counsellor determines that small commercial consumers are in need of representation, including an alternative dispute resolution proceeding; (362)

(4) may initiate or intervene as a matter of right or otherwise appear in a judicial proceeding: (363)

(A) that involves an action taken by an administrative agency in a proceeding, including an alternative dispute resolution proceeding, in which the counsellor is authorized to appear; or (364)

(B) in which the counsellor determines that residential electricity consumers or small commercial electricity consumers are in need of representation; (365)

(5) is entitled to the same access as a party, other than commission staff, to records gathered by the commission under Section 14.204; (366)

(6) is entitled to discovery of any nonprivileged matter that is relevant to the subject matter of a proceeding or petition before the commission; (367)

(7) may represent an individual residential or small commercial consumer with respect to the consumer's disputed complaint concerning utility services that is unresolved before the commission; (368)

(8) may recommend legislation to the legislature that the office determines would positively affect the interests of residential and small commercial consumers; and (369)

(9) may advise persons who are interested parties for purposes of Section 37.054 on procedural matters related to proceedings before the commission on an application for a certificate of convenience and necessity filed under Section 37.053. (370)

(b) This section does not limit the authority of the commission to represent residential or small commercial consumers. (371)

(c) The appearance of the counsellor in a proceeding does not preclude the appearance of other parties on behalf of residential or small commercial consumers. The counsellor may not be grouped with any other party. (372)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 6, eff. Sept. 1, 1999. (373)

Amended by: (374)

Acts 2011, 82nd Leg., R.S., Ch. 416 (S.B. 855), Sec. 1, eff. June 17, 2011. (375)

Sec. 13.004. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES. (376)(1-click HTML)

(a) The counsellor shall develop and implement a policy to encourage the use of appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal disputes under the office's jurisdiction. (377)

(b) The office's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (378)

(c) The counsellor shall designate a trained person to: (379)

(1) coordinate the implementation of the policy adopted under Subsection (a); (380)

(2) serve as a resource for any training needed to implement the procedures for alternative dispute resolution; and (381)

(3) collect data concerning the effectiveness of those procedures, as implemented by the office. (382)

Added by Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 2, eff. September 1, 2005. (383)

Sec. 13.005. COMPLAINTS. (384)(1-click HTML)

(a) The office shall maintain a system to promptly and efficiently act on complaints filed with the office that the office has the authority to resolve. The office shall maintain information about parties to the complaint, the subject matter of the complaint, a summary of the results of the review or investigation of the complaint, and its disposition. (385)

(b) The office shall make information available describing its procedures for complaint investigation and resolution. (386)

(c) The office shall periodically notify the complaint parties of the status of the complaint until final disposition. (387)

Added by Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 2, eff. September 1, 2005. (388)

Sec. 13.006. TECHNOLOGY POLICY. (389)(1-click HTML)

The counsellor shall implement a policy requiring the office to use appropriate technological solutions to improve the office's ability to perform its functions. The policy must ensure that the public is able to interact with the office on the Internet. (390)

Added by Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 2, eff. September 1, 2005. (391)

SUBCHAPTER B. PUBLIC UTILITY COUNSEL (392)(1-click HTML)
Sec. 13.021. APPOINTMENT; TERM. (393)(1-click HTML)

(a) The chief executive of the office is the counsellor. (394)

(b) The counsellor is appointed by the governor with the advice and consent of the senate. (395)

(c) The appointment of the counsellor shall be made without regard to the race, color, disability, sex, religion, age, or national origin of the appointee. (396)

(d) The counsellor serves a two-year term that expires on February 1 of the final year of the term. (397)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (398)

Sec. 13.022. QUALIFICATIONS. (399)(1-click HTML)

(a) The counsellor must: (400)

(1) be licensed to practice law in this state; (401)

(2) have demonstrated a strong commitment to and involvement in efforts to safeguard the rights of the public; and (402)

(3) possess the knowledge and experience necessary to practice effectively in utility proceedings. (403)

(b) A person is not eligible for appointment as counsellor if: (404)

(1) the person or the person's spouse: (405)

(A) is employed by or participates in the management of a business entity or other organization that is regulated by or receives funds from the commission; (406)

(B) directly or indirectly owns or controls more than a 10 percent interest or a pecuniary interest with a value exceeding $10,000 in: (407)

(i) a business entity or other organization that is regulated by or receives funds from the commission or the office; or (408)

(ii) a utility competitor, utility supplier, or other entity affected by a commission decision in a manner other than by the setting of rates for that class of customer; (409)

(C) uses or receives a substantial amount of tangible goods, services, or funds from the commission or the office, other than compensation or reimbursement authorized by law for service as counsellor or for commission membership, attendance, or expenses; or (410)

(D) notwithstanding Paragraph (B), has an interest in a mutual fund or retirement fund in which more than 10 percent of the fund's holdings is in a single utility, utility competitor, or utility supplier in this state and the person does not disclose this information to the governor, senate, or other entity, as appropriate; or (411)

(2) the person is not qualified to serve under Section 13.042. (412)

(c) Repealed by Acts 2005, 79th Leg., Ch. 300, Sec. 7, eff. September 1, 2005. (413)

(d) A person otherwise ineligible because of Subsection (b)(1)(B) may be appointed and serve as counsellor if the person: (414)

(1) notifies the attorney general and commission that the person is ineligible because of Subsection (b)(1)(B); and (415)

(2) divests the person or the person's spouse of the ownership or control: (416)

(A) before beginning service; or (417)

(B) if the person is already serving, within a reasonable time. (418)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (419)

Amended by: (420)

Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 7, eff. September 1, 2005. (421)

Sec. 13.023. GROUNDS FOR REMOVAL. (422)(1-click HTML)

(a) It is a ground for removal from office if the counsellor: (423)

(1) does not have at the time of taking office or maintain during service as counsellor the qualifications required by Section 13.022; (424)

(2) is ineligible for service as counsellor under Section 13.022, 13.042, or 13.043; or (425)

(3) cannot discharge the counsellor's duties for a substantial part of the term for which the counsellor is appointed because of illness or disability. (426)

(b) The validity of an action of the office is not affected by the fact that the action is taken when a ground for removal of the counsellor exists. (427)

(c) If an employee has knowledge that a potential ground for removal of the counsellor exists, the employee shall notify the next highest ranking employee of the office, other than the counsellor, who shall then notify the governor and the attorney general that a potential ground for removal exists. (428)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (429)

Amended by: (430)

Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 3, eff. September 1, 2005. (431)

Sec. 13.024. PROHIBITED ACTS. (432)(1-click HTML)

(a) The counsellor may not have a direct or indirect interest in a utility company regulated under this title, its parent, or its subsidiary companies, corporations, or cooperatives or a utility competitor, utility supplier, or other entity affected in a manner other than by the setting of rates for that class of customer. (433)

(b) The prohibition under Subsection (a) applies during the period of the counsellor's service. (434)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 7, eff. Sept. 1, 1999. (435)

SUBCHAPTER C. OFFICE PERSONNEL (436)(1-click HTML)
Sec. 13.041. PERSONNEL. (437)(1-click HTML)

(a) The counsellor may employ lawyers, economists, engineers, consultants, statisticians, accountants, clerical staff, and other employees as the counsellor considers necessary to carry out this chapter. (438)

(b) An employee receives compensation as prescribed by the legislature from the assessment imposed by Subchapter A, Chapter 16. (439)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (440)

Sec. 13.042. CONFLICT OF INTEREST. (441)(1-click HTML)

(a) In this section, "Texas trade association" means a cooperative and voluntarily joined statewide association of business or professional competitors in this state designed to assist its members and its industry or profession in dealing with mutual business or professional problems and in promoting their common interest. (442)

(b) A person may not serve as counsellor or be an employee of the office employed in a "bona fide executive, administrative, or professional capacity," as that phrase is used for purposes of establishing an exemption to the overtime provisions of the federal Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if the person is: (443)

(1) an officer, employee, or paid consultant of a Texas trade association in the field of utilities; or (444)

(2) the spouse of an officer, manager, or paid consultant of a Texas trade association in the field of utilities. (445)

(c) A person may not serve as counsellor or act as the general counsel to the office if the person is required to register as a lobbyist under Chapter 305, Government Code, because of the person's activities for compensation on behalf of a profession related to the operation of the office. (446)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (447)

Amended by: (448)

Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 4, eff. September 1, 2005. (449)

Sec. 13.043. PROHIBITION ON EMPLOYMENT OR REPRESENTATION. (450)(1-click HTML)

(a) A former counsel may not make any communication to or appearance before the commission or an officer or employee of the commission before the second anniversary of the date the person ceases to serve as counsel if the communication or appearance is made: (451)

(1) on behalf of another person in connection with any matter on which the person seeks official action; or (452)

(2) with the intent to influence a commission decision or action, unless acting on his or her own behalf and without remuneration. (453)

(b) A former counsel may not represent any person or receive compensation for services rendered on behalf of any person regarding a matter before the commission before the second anniversary of the date the person ceases to serve as counsel. (454)

(c) A person commits an offense if the person violates this section. An offense under this subsection is a Class A misdemeanor. (455)

(d) An employee of the office may not: (456)

(1) be employed by a public utility that was in the scope of the employee's official responsibility while the employee was associated with the office; or (457)

(2) represent a person before the commission or a court in a matter: (458)

(A) in which the employee was personally involved while associated with the office; or (459)

(B) that was within the employee's official responsibility while the employee was associated with the office. (460)

(e) The prohibition of Subsection (d)(1) applies until the first anniversary of the date the employee's employment with the office ceases. (461)

(f) The prohibition of Subsection (d)(2) applies while an employee of the office is associated with the office and at any time after. (462)

(g) For purposes of this section, "person" includes an electric cooperative. (463)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 8, eff. Sept. 1, 1999. (464)

Sec. 13.044. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS; MERIT PAY. (465)(1-click HTML)

(a) The counsellor or the counsellor's designee shall develop an intra-agency career ladder program that addresses opportunities for mobility and advancement for office employees. The program shall require intra-agency postings of each position concurrently with any public posting. (466)

(b) The counsellor or the counsellor's designee shall develop a system of annual performance evaluations that are based on documented employee performance. Merit pay for office employees must be based on the system established under this subsection. (467)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (468)

Sec. 13.045. EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT. (469)(1-click HTML)

(a) The counsellor or the counsellor's designee shall prepare and maintain a written policy statement to ensure implementation of a program of equal employment opportunity under which all personnel transactions are made without regard to race, color, disability, sex, religion, age, or national origin. (470)

(b) The policy statement under Subsection (a) must include: (471)

(1) personnel policies, including policies related to recruitment, evaluation, selection, appointment, training, and promotion of personnel, that are in compliance with the requirements of Chapter 21, Labor Code; (472)

(2) a comprehensive analysis of the office workforce that meets federal and state guidelines; (473)

(3) procedures by which a determination can be made about the extent of underuse in the office workforce of all persons for whom federal or state guidelines encourage a more equitable balance; and (474)

(4) reasonable methods to appropriately address the underuse. (475)

(c) A policy statement prepared under Subsection (b) must: (476)

(1) cover an annual period; (477)

(2) be updated at least annually; (478)

(3) be reviewed by the Commission on Human Rights for compliance with Subsection (b)(1); and (479)

(4) be filed with the governor's office. (480)

(d) The governor's office shall deliver a biennial report to the legislature based on the information received under Subsection (c). The report may be made separately or as a part of other biennial reports to the legislature. (481)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (482)

Sec. 13.046. QUALIFICATIONS AND STANDARDS OF CONDUCT INFORMATION. (483)(1-click HTML)

The office shall provide to office employees as often as necessary information regarding their: (484)

(1) qualifications for employment under this title; and (485)

(2) responsibilities under applicable laws relating to standards of conduct for employees. (486)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (487)

SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND REPORTS (488)(1-click HTML)
Sec. 13.061. PUBLIC INTEREST INFORMATION. (489)(1-click HTML)

The office shall prepare information of public interest describing the functions of the office. The office shall make the information available to the public and appropriate state agencies. (490)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (491)

Sec. 13.062. PUBLIC PARTICIPATION. (492)(1-click HTML)

(a) The office shall comply with federal and state laws related to program and facility accessibility. (493)

(b) The office shall prepare and maintain a written plan that describes how a person who does not speak English may be provided reasonable access to the office's programs and services. (494)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (495)

Sec. 13.063. ANNUAL REPORTS. (496)(1-click HTML)

(a) Repealed by Acts 2011, 82nd Leg., R.S., Ch. 1083, Sec. 25(161), eff. June 17, 2011. (497)

(b) The office shall prepare annually a report on the office's activities during the preceding year and submit the report to the standing legislative committees that have jurisdiction over the office, the house appropriations committee, the senate finance committee, and the Sunset Advisory Commission. At a minimum, the report must include: (498)

(1) a list of the types of activities conducted by the office and the time spent by the office on each activity; (499)

(2) the number of hours billed by the office for representing residential or small commercial consumers in proceedings; (500)

(3) the number of staff positions and the type of work performed by each position; and (501)

(4) the office's rate of success in representing residential or small commercial consumers in appealing commission decisions. (502)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (503)

Amended by: (504)

Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 5, eff. September 1, 2005. (505)

Acts 2011, 82nd Leg., R.S., Ch. 1083 (S.B. 1179), Sec. 25(161), eff. June 17, 2011. (506)

Sec. 13.064. PUBLIC HEARING. (507)(1-click HTML)

(a) The office annually shall conduct a public hearing to assist the office in developing a plan of priorities and to give the public, including residential and small commercial consumers, an opportunity to comment on the office's functions and effectiveness. (508)

(b) A public hearing held under this section is not subject to Chapter 551, Government Code. (509)

(c) The office shall file notice of a public hearing held under this section with the secretary of state for publication in the Texas Register. (510)

Added by Acts 2005, 79th Leg., Ch. 300 (S.B. 409), Sec. 6, eff. September 1, 2005. (511)

CHAPTER 14. JURISDICTION AND POWERS OF COMMISSION AND OTHER REGULATORY AUTHORITIES (512)(1-click HTML)
SUBCHAPTER A. GENERAL POWERS OF COMMISSION (513)(1-click HTML)
Sec. 14.001. POWER TO REGULATE AND SUPERVISE. (514)(1-click HTML)

The commission has the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction. (515)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (516)

Sec. 14.002. RULES. (517)(1-click HTML)

The commission shall adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction. (518)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (519)

Sec. 14.0025. NEGOTIATED RULEMAKING AND ALTERNATIVE DISPUTE RESOLUTION. (520)(1-click HTML)

(a) The commission shall develop and implement a policy to encourage the use of: (521)

(1) negotiated rulemaking procedures under Chapter 2008, Government Code, for the adoption of commission rules; and (522)

(2) appropriate alternative dispute resolution procedures under Chapter 2009, Government Code, to assist in the resolution of internal and external disputes under the commission's jurisdiction. (523)

(b) The commission's procedures relating to alternative dispute resolution must conform, to the extent possible, to any model guidelines issued by the State Office of Administrative Hearings for the use of alternative dispute resolution by state agencies. (524)

(c) The commission shall designate a trained person to: (525)

(1) coordinate the implementation of the policy adopted under Subsection (a); (526)

(2) serve as a resource for any training needed to implement the procedures for negotiated rulemaking or alternative dispute resolution; and (527)

(3) collect data concerning the effectiveness of those procedures, as implemented by the commission. (528)

Added by Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 5, eff. September 1, 2005. (529)

Sec. 14.003. COMMISSION POWERS RELATING TO REPORTS. (530)(1-click HTML)

The commission may: (531)

(1) require a public utility to report to the commission information relating to: (532)

(A) the utility; and (533)

(B) a transaction between the utility and an affiliate inside or outside this state, to the extent that the transaction is subject to the commission's jurisdiction; (534)

(2) establish the form for a report; (535)

(3) determine the time for a report and the frequency with which the report is to be made; (536)

(4) require that a report be made under oath; (537)

(5) require the filing with the commission of a copy of: (538)

(A) a contract or arrangement between a public utility and an affiliate; (539)

(B) a report filed with a federal agency or a governmental agency or body of another state; and (540)

(C) an annual report that shows each payment of compensation, other than salary or wages subject to federal income tax withholding: (541)

(i) to residents of this state; (542)

(ii) with respect to legal, administrative, or legislative matters in this state; or (543)

(iii) for representation before the legislature of this state or any governmental agency or body; and (544)

(6) require that a contract or arrangement described by Subdivision (5)(A) that is not in writing be reduced to writing and filed with the commission. (545)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (546)

Sec. 14.004. REPORT OF SUBSTANTIAL INTEREST. (547)(1-click HTML)

The commission may require disclosure of the identity and respective interests of each owner of at least one percent of the voting securities of a public utility or its affiliate. (548)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (549)

Sec. 14.005. CRITERIA AND GUIDELINES GOVERNING TERMINATION OF SERVICES TO ELDERLY AND DISABLED. (550)(1-click HTML)

The commission may establish criteria and guidelines with the utility industry relating to industry procedures used in terminating services to the elderly and disabled. (551)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (552)

Sec. 14.006. INTERFERENCE WITH TERMS OR CONDITIONS OF EMPLOYMENT; PRESUMPTION OF REASONABLENESS. (553)(1-click HTML)

The commission may not interfere with employee wages and benefits, working conditions, or other terms or conditions of employment that are the product of a collective bargaining agreement recognized under federal law. An employee wage rate or benefit that is the product of the collective bargaining is presumed to be reasonable. (554)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (555)

Sec. 14.007. ASSISTANCE TO MUNICIPALITY. (556)(1-click HTML)

On request by the governing body of a municipality, the commission may provide commission employees as necessary to advise and consult with the municipality on a pending matter. (557)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (558)

Sec. 14.008. MUNICIPAL FRANCHISES. (559)(1-click HTML)

(a) This title does not restrict the rights and powers of a municipality to grant or refuse a franchise to use the streets and alleys in the municipality or to make a statutory charge for that use. (560)

(b) A franchise agreement may not limit or interfere with a power conferred on the commission by this title. (561)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (562)

SUBCHAPTER B. PRACTICE AND PROCEDURE (563)(1-click HTML)
Sec. 14.051. PROCEDURAL POWERS. (564)(1-click HTML)

The commission may: (565)

(1) call and hold a hearing; (566)

(2) administer an oath; (567)

(3) receive evidence at a hearing; (568)

(4) issue a subpoena to compel the attendance of a witness or the production of a document; and (569)

(5) make findings of fact and decisions to administer this title or a rule, order, or other action of the commission. (570)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (571)

Sec. 14.052. RULES. (572)(1-click HTML)

(a) The commission shall adopt and enforce rules governing practice and procedure before the commission and, as applicable, practice and procedure before the State Office of Administrative Hearings. (573)

(b) The commission shall adopt rules that authorize an administrative law judge to: (574)

(1) limit the amount of time that a party may have to present its case; (575)

(2) limit the number of requests for information that a party may make in a contested case; (576)

(3) require a party to a contested case to identify contested issues and facts before the hearing begins; (577)

(4) limit cross-examination to only those issues and facts identified before the hearing and to any new issues that may arise as a result of the discovery process; and (578)

(5) group parties, other than the office, that have the same position on an issue to facilitate cross-examination on that issue. (579)

(c) A rule adopted under Subsection (b)(5) must permit each party in a group to present that party's witnesses for cross-examination during the hearing. (580)

(d) A rule adopted under this section must ensure that each party receives due process. (581)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (582)

Amended by: (583)

Acts 2015, 84th Leg., R.S., Ch. 228 (H.B. 2154), Sec. 23, eff. September 1, 2015. (584)

Sec. 14.053. POWERS AND DUTIES OF STATE OFFICE OF ADMINISTRATIVE HEARINGS. (585)(1-click HTML)

(a) The State Office of Administrative Hearings shall conduct each hearing in a contested case that is not conducted by one or more commissioners. (586)

(b) The commission may delegate to the State Office of Administrative Hearings the authority to make a final decision and to issue findings of fact, conclusions of law, and other necessary orders in a proceeding in which there is not a contested issue of fact or law. (587)

(c) The commission by rule shall define the procedures by which it delegates final decision-making authority under Subsection (b). (588)

(d) For review purposes an administrative law judge's final decision under Subsection (b) has the same effect as a final decision of the commission unless a commissioner requests formal review of the decision. (589)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (590)

Amended by: (591)

Acts 2015, 84th Leg., R.S., Ch. 228 (H.B. 2154), Sec. 24, eff. September 1, 2015. (592)

Sec. 14.054. SETTLEMENTS. (593)(1-click HTML)

(a) The commission by rule shall adopt procedures governing the use of settlements to resolve contested cases. (594)

(b) Rules adopted under this section must ensure that: (595)

(1) each party retains the right to: (596)

(A) a full hearing before the commission on issues that remain in dispute; and (597)

(B) judicial review of issues that remain in dispute; (598)

(2) an issue of fact raised by a nonsettling party may not be waived by a settlement or stipulation of the other parties; and (599)

(3) a nonsettling party may use an issue of fact raised by that party as the basis for judicial review. (600)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (601)

Sec. 14.055. RECORD OF PROCEEDINGS. (602)(1-click HTML)

The regulatory authority shall keep a record of each proceeding before the authority. (603)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (604)

Sec. 14.056. RIGHT TO BE HEARD. (605)(1-click HTML)

Each party to a proceeding before a regulatory authority is entitled to be heard by attorney or in person. (606)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (607)

Sec. 14.057. ORDERS OF COMMISSION; TRANSCRIPTS AND EXHIBITS; PUBLIC RECORDS. (608)(1-click HTML)

(a) A commission order must be in writing and contain detailed findings of the facts on which it is passed. (609)

(b) The commission shall retain a copy of the transcript and the exhibits in any matter in which the commission issues an order. (610)

(c) Subject to Chapter 552, Government Code, each file pertaining to a matter that was at any time pending before the commission or to a record, report, or inspection required by Section 14.003, 14.151, 14.152, 14.153, 14.201, or 14.203-14.207 or by Subtitle B or C is public information. (611)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (612)

Sec. 14.058. FEES FOR ELECTRONIC ACCESS TO INFORMATION. (613)(1-click HTML)

The fees charged by the commission for electronic access to information that is stored in the system established by the commission using funds from the Texas Public Finance Authority and approved by the Department of Information Resources shall be established: (614)

(1) by the commission in consultation with the comptroller; and (615)

(2) in an amount reasonable and necessary to retire the debt to the Texas Public Finance Authority associated with establishing the electronic access system. (616)

Added by Acts 1999, 76th Leg., ch. 62, Sec. 18.01(a), eff. Sept. 1, 1999. (617)

Amended by: (618)

Acts 2007, 80th Leg., R.S., Ch. 937 (H.B. 3560), Sec. 1.115, eff. September 1, 2007. (619)

Sec. 14.059. TECHNOLOGY POLICY. (620)(1-click HTML)

The commission shall implement a policy requiring the commission to use appropriate technological solutions to improve the commission's ability to perform its functions. The policy must ensure that the public is able to interact with the commission on the Internet. (621)

Added by Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 6, eff. September 1, 2005. (622)

SUBCHAPTER C. RESTRICTIONS ON CERTAIN TRANSACTIONS (623)(1-click HTML)
Sec. 14.101. REPORT OF CERTAIN TRANSACTIONS; COMMISSION CONSIDERATION. (624)(1-click HTML)

(a) Unless a public utility reports the transaction to the commission within a reasonable time, the public utility may not: (625)

(1) sell, acquire, or lease a plant as an operating unit or system in this state for a total consideration of more than $10 million; or (626)

(2) merge or consolidate with another public utility operating in this state. (627)

(b) A public utility shall report to the commission within a reasonable time each transaction that involves the sale of at least 50 percent of the stock of the utility. On the filing of a report with the commission, the commission shall investigate the transaction, with or without a public hearing, to determine whether the action is consistent with the public interest. In reaching its determination, the commission shall consider: (628)

(1) the reasonable value of the property, facilities, or securities to be acquired, disposed of, merged, transferred, or consolidated; (629)

(2) whether the transaction will: (630)

(A) adversely affect the health or safety of customers or employees; (631)

(B) result in the transfer of jobs of citizens of this state to workers domiciled outside this state; or (632)

(C) result in the decline of service; (633)

(3) whether the public utility will receive consideration equal to the reasonable value of the assets when it sells, leases, or transfers assets; and (634)

(4) whether the transaction is consistent with the public interest. (635)

(c) If the commission finds that a transaction is not in the public interest, the commission shall take the effect of the transaction into consideration in ratemaking proceedings and disallow the effect of the transaction if the transaction will unreasonably affect rates or service. (636)

(d) This section does not apply to: (637)

(1) the purchase of a unit of property for replacement; (638)

(2) an addition to the facilities of a public utility by construction; or (639)

(3) transactions that facilitate unbundling, asset valuation, minimization of ownership or control of generation assets, or other purposes consistent with Chapter 39. (640)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 405, Sec. 9, eff. Sept. 1, 1999. (641)

Amended by: (642)

Acts 2011, 82nd Leg., R.S., Ch. 129 (H.B. 1753), Sec. 1, eff. September 1, 2011. (643)

Sec. 14.102. REPORT OF PURCHASE OF VOTING STOCK IN PUBLIC UTILITY. (644)(1-click HTML)

A public utility may not purchase voting stock in another public utility doing business in this state unless the utility reports the purchase to the commission. (645)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (646)

Sec. 14.103. REPORT OF LOAN TO STOCKHOLDERS. (647)(1-click HTML)

A public utility may not loan money, stocks, bonds, notes, or other evidence of indebtedness to a person who directly or indirectly owns or holds any stock of the public utility unless the public utility reports the transaction to the commission within a reasonable time. (648)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (649)

SUBCHAPTER D. RECORDS (650)(1-click HTML)
Sec. 14.151. RECORDS OF PUBLIC UTILITY. (651)(1-click HTML)

(a) Each public utility shall keep and provide to the regulatory authority, in the manner and form prescribed by the commission, uniform accounts of all business transacted by the utility. (652)

(b) The commission may prescribe the form of books, accounts, records, and memoranda to be kept by a public utility, including: (653)

(1) the books, accounts, records, and memoranda of: (654)

(A) the provision of and capacity for service; and (655)

(B) the receipt and expenditure of money; and (656)

(2) any other form, record, and memorandum that the commission considers necessary to carry out this title. (657)

(c) For a public utility subject to regulation by a federal regulatory agency, compliance with the system of accounts prescribed for the particular class of utilities by the federal agency may be considered sufficient compliance with the system prescribed by the commission. The commission may prescribe the form of books, accounts, records, and memoranda covering information in addition to that required by the federal agency. The system of accounts and the form of books, accounts, records, and memoranda prescribed by the commission for a public utility or class of utilities may not be inconsistent with the systems and forms established by a federal agency for that public utility or class of utilities. (658)

(d) Each public utility shall: (659)

(1) keep and provide its books, accounts, records, and memoranda accurately in the manner and form prescribed by the commission; and (660)

(2) comply with the directions of the regulatory authority relating to the books, accounts, records, and memoranda. (661)

(e) In this section, "public utility" includes a municipally owned utility. (662)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (663)

Sec. 14.152. MAINTENANCE OF OFFICE AND RECORDS IN THIS STATE. (664)(1-click HTML)

(a) Each public utility shall maintain an office in this state in a county in which some part of the utility's property is located. The utility shall keep in this office all books, accounts, records, and memoranda required by the commission to be kept in this state. (665)

(b) A book, account, record, or memorandum required by the regulatory authority to be kept in this state may not be removed from this state, except as: (666)

(1) provided by Section 52.255; and (667)

(2) prescribed by the commission. (668)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (669)

Sec. 14.153. COMMUNICATIONS WITH REGULATORY AUTHORITY. (670)(1-click HTML)

(a) The regulatory authority shall adopt rules governing communications with the regulatory authority or a member or employee of the regulatory authority by: (671)

(1) a public utility; (672)

(2) an affiliate; or (673)

(3) a representative of a public utility or affiliate. (674)

(b) A record of a communication must contain: (675)

(1) the name of the person contacting the regulatory authority or member or employee of the regulatory authority; (676)

(2) the name of the business entity represented; (677)

(3) a brief description of the subject matter of the communication; and (678)

(4) the action, if any, requested by the public utility, affiliate, or representative. (679)

(c) Records compiled under Subsection (b) shall be available to the public monthly. (680)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (681)

Sec. 14.154. JURISDICTION OVER AFFILIATE. (682)(1-click HTML)

(a) The commission has jurisdiction over an affiliate that has a transaction with a public utility under the commission's jurisdiction to the extent of access to a record of the affiliate relating to the transaction, including a record of joint or general expenses, any portion of which may be applicable to the transaction. (683)

(b) A record obtained by the commission relating to sale of electrical energy at wholesale by an affiliate to the public utility is confidential and is not subject to disclosure under Chapter 552, Government Code. (684)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (685)

SUBCHAPTER E. AUDITS AND INSPECTIONS (686)(1-click HTML)
Sec. 14.201. INQUIRY INTO MANAGEMENT AND AFFAIRS. (687)(1-click HTML)

A regulatory authority may inquire into the management and affairs of each public utility and shall keep itself informed as to the manner and method in which each public utility is managed and its affairs are conducted. (688)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (689)

Sec. 14.202. MANAGEMENT AUDITS BY COMMISSION. (690)(1-click HTML)

(a) The commission shall: (691)

(1) inquire into the management of the business of each public utility under its jurisdiction; (692)

(2) keep itself informed as to the manner and method in which the utility's business is managed; and (693)

(3) obtain from the public utility any information necessary to enable the commission to perform a management audit. (694)

(b) The commission may audit a utility under its jurisdiction as frequently as needed. Six months after an audit, the utility shall report to the commission on the status of the implementation of the recommendations of the audit and shall file subsequent reports at times the commission considers appropriate. (695)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (696)

Sec. 14.203. AUDIT OF ACCOUNTS. (697)(1-click HTML)

A regulatory authority may require the examination and audit of the accounts of a public or municipally owned utility. (698)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (699)

Sec. 14.204. INSPECTION. (700)(1-click HTML)

(a) A regulatory authority and, to the extent authorized by the regulatory authority, its counsel, agent, or employee, may: (701)

(1) inspect and obtain copies of the papers, books, accounts, documents, and other business records of a public utility within its jurisdiction; and (702)

(2) inspect the plant, equipment, and other property of a public utility within its jurisdiction. (703)

(b) An action under this section must be conducted at a reasonable time for a reasonable purpose. (704)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (705)

Sec. 14.205. EXAMINATIONS UNDER OATH. (706)(1-click HTML)

In connection with an action taken under Section 14.204, the regulatory authority may: (707)

(1) examine under oath an officer, agent, or employee of a public utility; or (708)

(2) authorize the person conducting the action to make the examination under oath. (709)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (710)

Sec. 14.206. ENTERING PREMISES OF PUBLIC UTILITY. (711)(1-click HTML)

(a) A member, agent, or employee of a regulatory authority may enter the premises occupied by a public utility to conduct an inspection, examination, or test or to exercise any other authority provided by this title. (712)

(b) A member, agent, or employee of the regulatory authority may act under this section only during reasonable hours and after reasonable notice to the public utility. (713)

(c) A public utility is entitled to be represented when an inspection, examination, or test is conducted on its premises. The utility is entitled to a reasonable time to secure a representative before the inspection, examination, or test begins. (714)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (715)

Sec. 14.207. PRODUCTION OF OUT-OF-STATE RECORDS. (716)(1-click HTML)

(a) A regulatory authority may require, by order or subpoena served on a public utility, the production, at the time and place in this state that the regulatory authority designates, of any books, accounts, papers, or records kept by that public utility outside this state or, if ordered by the commission, verified copies of the books, accounts, papers, or records. (717)

(b) A public utility that fails or refuses to comply with an order or subpoena under this section violates this title. (718)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (719)

CHAPTER 15. JUDICIAL REVIEW, ENFORCEMENT, AND PENALTIES (720)(1-click HTML)
SUBCHAPTER A. JUDICIAL REVIEW (721)(1-click HTML)
Sec. 15.001. RIGHT TO JUDICIAL REVIEW. (722)(1-click HTML)

Any party to a proceeding before the commission is entitled to judicial review under the substantial evidence rule. (723)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (724)

Sec. 15.002. COMMISSION AS DEFENDANT. (725)(1-click HTML)

The commission must be a defendant in a proceeding for judicial review. (726)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (727)

Sec. 15.003. COSTS AND ATTORNEY'S FEES. (728)(1-click HTML)

(a) A party represented by counsel who alleges that existing rates are excessive or that rates prescribed by the commission are excessive and who prevails in a proceeding for review of a commission order or decision is entitled in the same action to recover against the regulation fund reasonable fees for attorneys and expert witnesses and other costs for the party's efforts before the commission and the court. (729)

(b) The court shall set the amount of attorney's fees awarded under Subsection (a). (730)

(c) If a court finds that an action under Section 15.001 or this section was groundless and brought in bad faith and for the purpose of harassment, the court may award reasonable attorney's fees to the defendant public utility. (731)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (732)

Sec. 15.004. JUDICIAL STAY OR SUSPENSION. (733)(1-click HTML)

While an appeal of an order, ruling, or decision of a regulatory authority is pending, the district court, court of appeals, or supreme court, as appropriate, may stay or suspend all or part of the operation of the order, ruling, or decision. In granting or refusing a stay or suspension, the court shall act in accordance with the practice of a court exercising equity jurisdiction. (734)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (735)

SUBCHAPTER B. ENFORCEMENT AND PENALTIES (736)(1-click HTML)
Sec. 15.021. ACTION TO ENJOIN OR REQUIRE COMPLIANCE. (737)(1-click HTML)

(a) The attorney general, on the request of the commission, shall apply in the name of the commission for a court order under Subsection (b) if the commission determines that a public utility or other person is: (738)

(1) engaging in or about to engage in an act that violates this title or an order or rule of the commission entered or adopted under this title; or (739)

(2) failing to comply with the requirements of this title or a rule or order of the commission. (740)

(b) A court, in an action under this section, may: (741)

(1) prohibit the commencement or continuation of an act that violates this title or an order or rule of the commission entered or adopted under this title; or (742)

(2) require compliance with a provision of this title or an order or rule of the commission. (743)

(c) The remedy under this section is in addition to any other remedy provided under this title. (744)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (745)

Sec. 15.022. CONTEMPT. (746)(1-click HTML)

The commission may file a court action for contempt against a person who: (747)

(1) fails to comply with a lawful order of the commission; (748)

(2) fails to comply with a subpoena or subpoena duces tecum; or (749)

(3) refuses to testify about a matter on which the person may be lawfully interrogated. (750)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (751)

Sec. 15.023. ADMINISTRATIVE PENALTY, DISGORGEMENT ORDER, OR MITIGATION PLAN. (752)(1-click HTML)

(a) The commission may impose an administrative penalty against a person regulated under this title who violates this title or a rule or order adopted under this title. (753)

(b) The penalty for a violation may be in an amount not to exceed $25,000. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (754)

(c) The commission by rule shall establish a classification system for violations that includes a range of administrative penalties that may be assessed for each class of violation based on: (755)

(1) the seriousness of the violation, including: (756)

(A) the nature, circumstances, extent, and gravity of a prohibited act; and (757)

(B) the hazard or potential hazard created to the health, safety, or economic welfare of the public; (758)

(2) the economic harm to property or the environment caused by the violation; (759)

(3) the history of previous violations; (760)

(4) the amount necessary to deter future violations; (761)

(5) efforts to correct the violation; and (762)

(6) any other matter that justice may require. (763)

(d) The classification system established under Subsection (c) shall provide that a penalty in an amount that exceeds $5,000 may be assessed only if the violation is included in the highest class of violations in the classification system. (764)

(e) For a violation of Section 39.157, the commission shall, in addition to the assessment of a penalty, order disgorgement of all excess revenue resulting from the violation. For any other violation of the statutes, rules, or protocols relating to wholesale electric markets, the commission may, in addition to the assessment of a penalty, order disgorgement of all excess revenue resulting from the violation. (765)

(f) The commission and a person may develop and enter into a voluntary mitigation plan relating to a violation of Section 39.157 or rules adopted by the commission under that section. If the commission and a person enter into a voluntary mitigation plan, adherence to the plan constitutes an absolute defense against an alleged violation with respect to activities covered by the plan. (766)

(g) In this subchapter, "excess revenue" means revenue in excess of revenue that would have occurred absent a violation. (767)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (768)

Amended by: (769)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 7, eff. September 1, 2005. (770)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 1, eff. September 1, 2011. (771)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 2, eff. September 1, 2011. (772)

Sec. 15.024. ADMINISTRATIVE PENALTY ASSESSMENT OR DISGORGEMENT ORDER PROCEDURE. (773)(1-click HTML)

(a) If the executive director determines that a violation has occurred, the executive director may issue to the commission a report that states the facts on which the determination is based and the executive director's recommendation on the imposition of an administrative penalty, including a recommendation on the amount of the penalty. (774)

(b) Not later than the 14th day after the date the report is issued, the executive director shall give written notice of the report to the person against whom the penalty may be assessed. The notice may be given by certified mail. The notice must: (775)

(1) include a brief summary of the alleged violation; (776)

(2) state the amount of the recommended penalty; and (777)

(3) inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (778)

(c) A penalty may not be assessed under this section if the person against whom the penalty may be assessed remedies the violation before the 31st day after the date the person receives the notice under Subsection (b). A person who claims to have remedied an alleged violation has the burden of proving to the commission that the alleged violation was remedied and was accidental or inadvertent. This subsection does not apply to a violation of Chapter 17, 55, or 64. (779)

(d) Not later than the 20th day after the date the person receives the notice, the person may accept the determination and recommended penalty of the executive director in writing or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (780)

(e) If the person accepts the executive director's determination and recommended penalty, the commission by order shall approve the determination and impose the recommended penalty. (781)

(f) If the person requests a hearing or fails to timely respond to the notice, the executive director shall set a hearing and give notice of the hearing to the person. The parties to a proceeding under this subchapter shall be limited to the person and the commission, including the independent market monitor. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commission a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Based on the findings of fact, conclusions of law, and proposal for a decision, the commission by order may find that a violation has occurred and impose a penalty or disgorgement order or may find that no violation occurred. (782)

(g) The notice of the commission's order shall be given to the person as provided by Chapter 2001, Government Code, and must include a statement of the right of the person to judicial review of the order. (783)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1212, Sec. 3, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1579, Sec. 2, eff. Aug. 30, 1999. (784)

Amended by: (785)

Acts 2011, 82nd Leg., R.S., Ch. 91 (S.B. 1303), Sec. 25.001, eff. September 1, 2011. (786)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 3, eff. September 1, 2011. (787)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 4, eff. September 1, 2011. (788)

Sec. 15.025. PAYMENT OF ADMINISTRATIVE PENALTY. (789)(1-click HTML)

(a) Not later than the 30th day after the date the commission's order imposing an administrative penalty is final as provided by Section 2001.144, Government Code, the person shall: (790)

(1) pay the amount of the penalty; (791)

(2) pay the amount of the penalty and file a petition for judicial review contesting: (792)

(A) the occurrence of the violation; (793)

(B) the amount of the penalty; or (794)

(C) both the occurrence of the violation and the amount of the penalty; or (795)

(3) without paying the amount of the penalty, file a petition for judicial review contesting: (796)

(A) the occurrence of the violation; (797)

(B) the amount of the penalty; or (798)

(C) both the occurrence of the violation and the amount of the penalty. (799)

(b) Not later than the 30th day after the date the commission's order is final as provided by Section 2001.144, Government Code, a person who acts under Subsection (a)(3) may: (800)

(1) stay enforcement of the penalty by: (801)

(A) paying the amount of the penalty to the court for placement in an escrow account; or (802)

(B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commission's order is final; or (803)

(2) request the court to stay enforcement of the penalty by: (804)

(A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (805)

(B) giving a copy of the affidavit to the executive director by certified mail. (806)

(c) The executive director, on receipt of a copy of an affidavit under Subsection (b)(2), may file with the court, not later than the fifth day after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (807)

(d) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the executive director may refer the matter to the attorney general for collection of the amount of the penalty. (808)

(e) Any excess revenue ordered disgorged under this section for a violation of the statutes, rules, or protocols relating to wholesale electric markets shall be returned to the affected wholesale electric market participants to be used to reduce costs or fees incurred by retail electric customers. The commission shall adopt rules to prescribe how revenue shall be returned to the affected wholesale electric market participants under this subsection. (809)

(f) For purposes of this section and Section 15.026, a reference to a penalty shall be construed to include disgorgement. (810)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (811)

Amended by: (812)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 5, eff. September 1, 2011. (813)

Sec. 15.026. JUDICIAL REVIEW OF ADMINISTRATIVE PENALTY. (814)(1-click HTML)

(a) Judicial review of a commission order imposing an administrative penalty or disgorgement is: (815)

(1) instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and (816)

(2) under the substantial evidence rule. (817)

(b) If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty or disgorgement and order the person to pay the full or reduced amount of the penalty or disgorgement. If the court does not sustain the occurrence of the violation, the court shall order that no penalty or disgorgement is owed. (818)

(c) When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount. (819)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (820)

Amended by: (821)

Acts 2011, 82nd Leg., R.S., Ch. 996 (H.B. 2133), Sec. 6, eff. September 1, 2011. (822)

Sec. 15.027. ADMINISTRATIVE PENALTY COLLECTION; GENERAL PROVISIONS. (823)(1-click HTML)

(a) An administrative penalty collected under this subchapter shall be sent to the comptroller. (824)

(b) A proceeding relating to an administrative penalty under this subchapter is subject to Chapter 2001, Government Code. (825)

(c) The executive director may delegate any power or duty relating to an administrative penalty given the executive director by this subchapter to a person designated by the executive director. (826)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (827)

Sec. 15.028. CIVIL PENALTY AGAINST PUBLIC UTILITY, PAY TELEPHONE SERVICE PROVIDER, OR AFFILIATE. (828)(1-click HTML)

(a) A public utility, customer-owned pay telephone service provider under Section 55.178, or affiliate is subject to a civil penalty if the utility, provider, or affiliate knowingly violates this title, fails to perform a duty imposed on it, or fails or refuses to obey an order, rule, direction, or requirement of the commission or a decree or judgment of a court. (829)

(b) A civil penalty under this section shall be in an amount of not less than $1,000 and not more than $5,000 for each violation. (830)

(c) A public utility or affiliate commits a separate violation each day it continues to violate Subsection (a). (831)

(d) The attorney general shall file in the name of the commission a suit on the attorney general's own initiative or at the request of the commission to recover the civil penalty under this section. (832)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (833)

Sec. 15.029. CIVIL PENALTY FOR VIOLATING SECTION 12. (834)(1-click HTML)

055 OR 12.154. (a) A member of the commission or an officer or director of a public utility or affiliate who knowingly violates Section 12.055 or 12.154 is subject to a civil penalty of $1,000 for each violation. (835)

(b) A person other than a person subject to Subsection (a) who knowingly violates Section 12.154 is subject to a civil penalty of $500 for each violation. (836)

(c) A member, officer, or employee of the commission who in any action is found by a preponderance of the evidence to have violated a provision of Section 12.055 or 12.154 shall be removed from the person's office or employment. (837)

(d) A civil penalty under this section is recoverable in a suit filed in the name of the commission by the attorney general on the attorney general's own initiative or at the request of the commission. (838)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (839)

Sec. 15.030. OFFENSE. (840)(1-click HTML)

(a) A person commits an offense if the person wilfully and knowingly violates this title. (841)

(b) This section does not apply to an offense described by Section 55.138. (842)

(c) An offense under this section is a felony of the third degree. (843)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (844)

Sec. 15.031. PLACE FOR SUIT. (845)(1-click HTML)

A suit for an injunction or a penalty under this title may be brought in: (846)

(1) Travis County; (847)

(2) a county in which the violation is alleged to have occurred; or (848)

(3) a county in which a defendant resides. (849)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (850)

Sec. 15.032. PENALTIES CUMULATIVE. (851)(1-click HTML)

(a) A penalty that accrues under this title is cumulative of any other penalty. (852)

(b) A suit for the recovery of a penalty does not bar or affect the recovery of any other penalty or bar a criminal prosecution against any person. (853)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (854)

Sec. 15.033. DISPOSITION OF FINES AND PENALTIES. (855)(1-click HTML)

A fine or penalty collected under this title, other than a fine or penalty collected in a criminal proceeding or a penalty collected under Section 15.027(a), shall be paid to the commission. (856)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (857)

SUBCHAPTER C. COMPLAINTS (858)(1-click HTML)
Sec. 15.051. COMPLAINT BY AFFECTED PERSON. (859)(1-click HTML)

(a) An affected person may complain to the regulatory authority in writing setting forth an act or omission by a public utility in violation or claimed violation of a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority. (860)

(b) The commission shall keep for a reasonable period information about each complaint filed with the commission that the commission has authority to resolve. The information shall include: (861)

(1) the date the complaint is received; (862)

(2) the name of the complainant; (863)

(3) the subject matter of the complaint; (864)

(4) a record of each person contacted in relation to the complaint; (865)

(5) a summary of the results of the review or investigation of the complaint; and (866)

(6) if the commission took no action on the complaint, an explanation of the reason the complaint was closed without action. (867)

(c) The commission shall keep a file about each written complaint filed with the commission that the commission has authority to resolve. The commission shall provide to the person filing the complaint and to each person or entity complained about information concerning the commission's policies and procedures on complaint investigation and resolution. The commission, at least quarterly and until final disposition of the complaint, shall notify the person filing the complaint and each person or entity complained about of the status of the complaint unless the notice would jeopardize an undercover investigation. (868)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (869)

Amended by: (870)

Acts 2005, 79th Leg., Ch. 797 (S.B. 408), Sec. 8, eff. September 1, 2005. (871)

Sec. 15.052. COMPLAINT REGARDING RECREATIONAL VEHICLE PARK OWNER. (872)(1-click HTML)

(a) An affected person may complain to the regulatory authority in writing setting forth an act or omission by a recreational vehicle park owner who provides metered electric service under Subchapter C, Chapter 184, in violation or claimed violation of a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority. (873)

(b) The commission shall keep for a reasonable period an information file about each complaint filed with the commission relating to a recreational vehicle park owner. (874)

(c) The commission, at least quarterly and until final disposition of the written complaint, shall notify the parties to the complaint of the status of the complaint unless the notice would jeopardize an undercover investigation. (875)

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997. (876)

SUBCHAPTER D. CEASE AND DESIST ORDERS (877)(1-click HTML)
Sec. 15.101. APPLICATION OF SUBCHAPTER. (878)(1-click HTML)

This subchapter applies only to a person to whom Subtitle B applies. (879)

Added by Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.06, eff. September 1, 2013. (880)

Sec. 15.102. RULES. (881)(1-click HTML)

The commission shall adopt rules to implement this subchapter. (882)

Added by Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.06, eff. September 1, 2013. (883)

Sec. 15.103. PROCEEDINGS UNDER OTHER LAW. (884)(1-click HTML)

The commission may proceed solely under this subchapter or under this subchapter in conjunction with other applicable law. (885)

Added by Acts 2013, 83rd Leg., R.S., Ch. 170 (H.B. 1600), Sec. 1.06, eff. September 1, 2013. (886)

Sec. 15.104. AUTHORITY TO ISSUE ORDER. (887)(1-click HTML)
  

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