81R2787 JJT-F
By: Callegari H.B. No. 1669
A BILL TO BE ENTITLED
AN ACT
relating to certificates of public convenience and necessity for
water or sewer services.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 13.245, Water Code, is amended by adding
Subsection (f) to read as follows:
(f) If a municipality refuses to provide service to property
located in the municipality's extraterritorial jurisdiction, a
retail public utility may apply to the commission for a certificate
of public convenience and necessity to serve the property. The
commission may grant the certificate irrespective of whether the
municipality consents to the certification.
SECTION 2. Section 13.2451, Water Code, is amended to read
as follows:
Sec. 13.2451. EXTENSION BEYOND EXTRATERRITORIAL
JURISDICTION. (a) Except as provided by Subsection (b), if [If] a
municipality extends its extraterritorial jurisdiction to include
an area certificated to a retail public utility, the retail public
utility may continue and extend service in its area of public
convenience and necessity under the rights granted by its
certificate and this chapter.
(b) The commission may not extend a municipality's
certificate of public convenience and necessity beyond its
extraterritorial jurisdiction without the written consent of the
landowner who owns the property in which the certificate is to be
extended. The portion of any certificate of public convenience and
necessity that extends beyond the extraterritorial jurisdiction of
the municipality without the consent of the landowner is void. [A
municipality that seeks to extend a certificate of public
convenience and necessity beyond the municipality's
extraterritorial jurisdiction must ensure that the municipality
complies with Section 13.241 in relation to the area covered by the
portion of the certificate that extends beyond the municipality's
extraterritorial jurisdiction.
[(c) The commission, after notice to the municipality and an
opportunity for a hearing, may decertify an area outside a
municipality's extraterritorial jurisdiction if the municipality
does not provide service to the area on or before the fifth
anniversary of the date the certificate of public convenience and
necessity was granted for the area. This subsection does not apply
to a certificate of public convenience and necessity for an area:
[(1) that was transferred to a municipality on
approval of the commission; and
[(2) in relation to which the municipality has spent
public funds.
[(d) To the extent of a conflict between this section and
Section 13.245, Section 13.245 prevails.]
SECTION 3. Sections 13.254(a-1) and (a-3), Water Code, are
amended to read as follows:
(a-1) As an alternative to decertification under Subsection
(a), the owner of a tract of land that is at least 50 acres and that
is not in a platted subdivision actually receiving water or sewer
service may petition the commission under this subsection for
expedited release of the area from a certificate of public
convenience and necessity so that the area may receive service from
another retail public utility. The fact that a certificate holder
is a borrower under a federal loan program is not a bar to a request
under this subsection for the release of the petitioner's land and
the receipt of services from an alternative provider. On the day
the petitioner submits the petition to the commission, the [The]
petitioner shall send [deliver], via certified mail, a copy of the
petition to the certificate holder, who may submit information to
the commission to controvert information submitted by the
petitioner. The petitioner must demonstrate that:
(1) a written request for service, other than a
request for standard residential or commercial service, has been
submitted to the certificate holder, identifying:
(A) the area for which service is sought;
(B) the timeframe within which service is needed
for current and projected service demands in the area;
(C) the level and manner of service needed for
current and projected service demands in the area;
(D) the approximate cost of the alternative
service;
(E) whether the petitioner intends for fire
protection to be part of the requested level of service; and
(F) [(D)] any additional information requested
by the certificate holder that is reasonably related to
determination of the capacity or cost for providing the service;
(2) the certificate holder has been allowed at least
90 calendar days to review and respond to the written request and
the information it contains;
(3) the certificate holder:
(A) has refused to provide the service;
(B) is not capable of providing the service on a
continuous and adequate basis within the timeframe, at the level,
at the same or a lower cost than the alternative provider is
capable, or in the manner reasonably needed or requested by current
and projected service demands in the area; or
(C) conditions the provision of service on the
payment of costs not properly allocable directly to the
petitioner's service request, as determined by the commission; and
(4) the alternate retail public utility from which the
petitioner will be requesting service is capable of providing
continuous and adequate service within the timeframe, at the level,
at the cost, and in the manner reasonably needed or requested by
current and projected service demands in the area.
(a-3) Within 60 [90] calendar days from the date the
commission determines the petition filed pursuant to Subsection
(a-1) to be administratively complete, the commission shall grant
the petition unless the commission makes an express finding that
the petitioner failed to satisfy the elements required in
Subsection (a-1) and supports its finding with separate findings
and conclusions for each element based solely on the information
provided by the petitioner and the certificate holder. The
commission may grant or deny a petition subject to terms and
conditions specifically related to the service request of the
petitioner and all relevant information submitted by the petitioner
and the certificate holder. In addition, the commission may
require an award of compensation as otherwise provided by this
section. If the certificate holder has never provided service to
the area the petitioner seeks to have released, the commission is
not required to find that the proposed alternative provider is
capable of providing better service than the certificate holder,
but only that the proposed alternative provider is capable of
providing the requested service.
SECTION 4. The changes made by this Act to Sections 13.245,
13.2451, and 13.254, Water Code, apply only to:
(1) a retail public utility's application for a
certificate of public convenience and necessity for a service area
in the extraterritorial jurisdiction of a municipality that is made
on or after the effective date of this Act;
(2) an extension of a municipality's certificate of
public convenience and necessity for a service area in the
extraterritorial jurisdiction of the municipality on or after the
effective date of this Act; and
(3) a petition to release an area from a certificate of
public convenience and necessity that is made on or after the
effective date of this Act.
SECTION 5. This Act takes effect September 1, 2009.