82R11830 RWG-D
By: Solomons H.B. No. 2133
A BILL TO BE ENTITLED
AN ACT
relating to the Public Utility Commission of Texas' authority to
disgorge revenue obtained as a result of certain violations;
providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. The heading to Section 15.023, Utilities Code,
is amended to read as follows:
Sec. 15.023. ADMINISTRATIVE PENALTY OR DISGORGEMENT ORDER.
SECTION 2. Section 15.023, Utilities Code, is amended by
adding Subsection (e) to read as follows:
(e) For a violation of Section 39.157, the commission shall,
in addition to the assessment of a penalty, order disgorgement of
all revenues 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 revenues resulting from the
violation.
SECTION 3. Section 15.025, Utilities Code, is amended by
adding Subsections (e) and (f) to read as follows:
(e) Any revenues 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 not later than March 1, 2012, to prescribe how
revenues shall be returned to the affected wholesale electric
market participants under this subsection.
(f) For purposes of this section and Section 15.026, a
reference to a penalty shall be construed to include disgorgement.
SECTION 4. Sections 15.026(a) and (b), Utilities Code, are
amended to read as follows:
(a) Judicial review of a commission order imposing an
administrative penalty or disgorgement is:
(1) instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) under the substantial evidence rule.
(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.
SECTION 5. Section 39.157(a), Utilities Code, is amended to
read as follows:
(a) The commission shall monitor market power associated
with the generation, transmission, distribution, and sale of
electricity in this state. On a finding that market power abuses or
other violations of this section are occurring, the commission
shall require reasonable mitigation of the market power by ordering
the construction of additional transmission or distribution
facilities, by seeking an injunction or civil penalties as
necessary to eliminate or to remedy the market power abuse or
violation as authorized by Chapter 15, by imposing an
administrative penalty as authorized by Chapter 15, by ordering the
disgorgement of revenues as authorized by Chapter 15, or by
suspending, revoking, or amending a certificate or registration as
authorized by Section 39.356. Section 15.024(c) does not apply to
an administrative penalty imposed under this section. For purposes
of this subchapter, market power abuses are practices by persons
possessing market power that are unreasonably discriminatory or
tend to unreasonably restrict, impair, or reduce the level of
competition, including practices that tie unregulated products or
services to regulated products or services or unreasonably
discriminate in the provision of regulated services. For purposes
of this section, "market power abuses" include predatory pricing,
withholding of production, precluding entry, and collusion. A
violation of the code of conduct provided by Subsection (d) that
materially impairs the ability of a person to compete in a
competitive market shall be deemed to be an abuse of market power.
The possession of a high market share in a market open to
competition may not, of itself, be deemed to be an abuse of market
power; however, this sentence shall not affect the application of
state and federal antitrust laws.
SECTION 6. The changes in law made by this Act apply only to
a violation that occurs on or after the effective date of this Act.
A violation that occurs before the effective date of this Act is
covered by the law in effect at the time the violation occurred, and
the former law is continued in effect for that purpose.
SECTION 7. This Act takes effect September 1, 2011.