Texas 2011 - 82nd Regular

Texas House Bill HB2133 Compare Versions

The same version is selected twice. Please select two different versions to compare.

Version 1 (Old)

Version 2 (New)

Old	New	Differences
1	1	By: Solomons (Senate Sponsor - Fraser) H.B. No. 2133
2	2	(In the Senate - Received from the House April 28, 2011;
3	3	May 3, 2011, read first time and referred to Committee on Natural
4	4	Resources; May 18, 2011, reported favorably by the following vote:
5	5	Yeas 8, Nays 0; May 18, 2011, sent to printer.)
6	6
7	7
8	8	A BILL TO BE ENTITLED
9	9	AN ACT
10	10	relating to the Public Utility Commission of Texas' authority to
11	11	disgorge revenue obtained as a result of certain violations;
12	12	providing an administrative penalty.
13	13	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
14	14	SECTION 1. The heading to Section 15.023, Utilities Code,
15	15	is amended to read as follows:
16	16	Sec. 15.023. ADMINISTRATIVE PENALTY, DISGORGEMENT ORDER,
17	17	OR MITIGATION PLAN.
18	18	SECTION 2. Section 15.023, Utilities Code, is amended by
19	19	adding Subsections (e), (f), and (g) to read as follows:
20	20	(e) For a violation of Section 39.157, the commission shall,
21	21	in addition to the assessment of a penalty, order disgorgement of
22	22	all excess revenue resulting from the violation. For any other
23	23	violation of the statutes, rules, or protocols relating to
24	24	wholesale electric markets, the commission may, in addition to the
25	25	assessment of a penalty, order disgorgement of all excess revenue
26	26	resulting from the violation.
27	27	(f) The commission and a person may develop and enter into a
28	28	voluntary mitigation plan relating to a violation of Section 39.157
29	29	or rules adopted by the commission under that section. If the
30	30	commission and a person enter into a voluntary mitigation plan,
31	31	adherence to the plan constitutes an absolute defense against an
32	32	alleged violation with respect to activities covered by the plan.
33	33	(g) In this subchapter, "excess revenue" means revenue in
34	34	excess of revenue that would have occurred absent a violation.
35	35	SECTION 3. The heading to Section 15.024, Utilities Code,
36	36	is amended to read as follows:
37	37	Sec. 15.024. ADMINISTRATIVE PENALTY ASSESSMENT OR
38	38	DISGORGEMENT ORDER PROCEDURE.
39	39	SECTION 4. Section 15.024(f), Utilities Code, is amended to
40	40	read as follows:
41	41	(f) If the person requests a hearing or fails to timely
42	42	respond to the notice, the executive director shall set a hearing
43	43	and give notice of the hearing to the person. The parties to a
44	44	proceeding under this subchapter shall be limited to the person and
45	45	the commission, including the independent market monitor. The
46	46	hearing shall be held by an administrative law judge of the State
47	47	Office of Administrative Hearings. The administrative law judge
48	48	shall make findings of fact and conclusions of law and promptly
49	49	issue to the commission a proposal for a decision about the
50	50	occurrence of the violation and the amount of a proposed penalty.
51	51	Based on the findings of fact, conclusions of law, and proposal for
52	52	a decision, the commission by order may find that a violation has
53	53	occurred and impose a penalty or disgorgement order or may find that
54	54	no violation occurred.
55	55	SECTION 5. Section 15.025, Utilities Code, is amended by
56	56	adding Subsections (e) and (f) to read as follows:
57	57	(e) Any excess revenue ordered disgorged under this section
58	58	for a violation of the statutes, rules, or protocols relating to
59	59	wholesale electric markets shall be returned to the affected
60	60	wholesale electric market participants to be used to reduce costs
61	61	or fees incurred by retail electric customers. The commission
62	62	shall adopt rules to prescribe how revenue shall be returned to the
63	63	affected wholesale electric market participants under this
64	64	subsection.
65	65	(f) For purposes of this section and Section 15.026, a
66	66	reference to a penalty shall be construed to include disgorgement.
67	67	SECTION 6. Sections 15.026(a) and (b), Utilities Code, are
68	68	amended to read as follows:
69	69	(a) Judicial review of a commission order imposing an
70	70	administrative penalty or disgorgement is:
71	71	(1) instituted by filing a petition as provided by
72	72	Subchapter G, Chapter 2001, Government Code; and
73	73	(2) under the substantial evidence rule.
74	74	(b) If the court sustains the occurrence of the violation,
75	75	the court may uphold or reduce the amount of the penalty or
76	76	disgorgement and order the person to pay the full or reduced amount
77	77	of the penalty or disgorgement. If the court does not sustain the
78	78	occurrence of the violation, the court shall order that no penalty
79	79	or disgorgement is owed.
80	80	SECTION 7. Section 39.157(a), Utilities Code, is amended to
81	81	read as follows:
82	82	(a) The commission shall monitor market power associated
83	83	with the generation, transmission, distribution, and sale of
84	84	electricity in this state. On a finding that market power abuses or
85	85	other violations of this section are occurring, the commission
86	86	shall require reasonable mitigation of the market power by ordering
87	87	the construction of additional transmission or distribution
88	88	facilities, by seeking an injunction or civil penalties as
89	89	necessary to eliminate or to remedy the market power abuse or
90	90	violation as authorized by Chapter 15, by imposing an
91	91	administrative penalty as authorized by Chapter 15, by ordering the
92	92	disgorgement of excess revenue as authorized by Chapter 15, or by
93	93	suspending, revoking, or amending a certificate or registration as
94	94	authorized by Section 39.356. Section 15.024(c) does not apply to
95	95	an administrative penalty imposed under this section. For purposes
96	96	of this subchapter, market power abuses are practices by persons
97	97	possessing market power that are unreasonably discriminatory or
98	98	tend to unreasonably restrict, impair, or reduce the level of
99	99	competition, including practices that tie unregulated products or
100	100	services to regulated products or services or unreasonably
101	101	discriminate in the provision of regulated services. For purposes
102	102	of this section, "market power abuses" include predatory pricing,
103	103	withholding of production, precluding entry, and collusion. A
104	104	violation of the code of conduct provided by Subsection (d) that
105	105	materially impairs the ability of a person to compete in a
106	106	competitive market shall be deemed to be an abuse of market power.
107	107	The possession of a high market share in a market open to
108	108	competition may not, of itself, be deemed to be an abuse of market
109	109	power; however, this sentence shall not affect the application of
110	110	state and federal antitrust laws.
111	111	SECTION 8. The changes in law made by this Act apply only to
112	112	a violation that occurs on or after the effective date of this Act.
113	113	A violation that occurs before the effective date of this Act is
114	114	covered by the law in effect at the time the violation occurred, and
115	115	the former law is continued in effect for that purpose.
116	116	SECTION 9. This Act takes effect September 1, 2011.
117	117	* * * * *