| 1 | 1 | | 85R3703 GRM-F |
|---|
| 2 | 2 | | By: Lucio III H.B. No. 2187 |
|---|
| 3 | 3 | | |
|---|
| 4 | 4 | | |
|---|
| 5 | 5 | | A BILL TO BE ENTITLED |
|---|
| 6 | 6 | | AN ACT |
|---|
| 7 | 7 | | relating to the revocation or amendment of a certificate of public |
|---|
| 8 | 8 | | convenience and necessity for water utilities in a service area. |
|---|
| 9 | 9 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
|---|
| 10 | 10 | | SECTION 1. Section 13.254, Water Code, is amended by |
|---|
| 11 | 11 | | amending Subsections (a-3), (a-4), (d), (e), (f), and (g) and |
|---|
| 12 | 12 | | adding Subsection (a-12) to read as follows: |
|---|
| 13 | 13 | | (a-3) Within 90 [60] calendar days from the date the utility |
|---|
| 14 | 14 | | commission determines the petition filed pursuant to Subsection |
|---|
| 15 | 15 | | (a-1) to be administratively complete, the utility commission shall |
|---|
| 16 | 16 | | grant the petition unless the utility commission makes an express |
|---|
| 17 | 17 | | finding that the petitioner failed to satisfy the elements required |
|---|
| 18 | 18 | | in Subsection (a-1) and supports its finding with separate findings |
|---|
| 19 | 19 | | and conclusions for each element based solely on the information |
|---|
| 20 | 20 | | provided by the petitioner and the certificate holder. The utility |
|---|
| 21 | 21 | | commission may grant or deny a petition subject to terms and |
|---|
| 22 | 22 | | conditions specifically related to the service request of the |
|---|
| 23 | 23 | | petitioner and all relevant information submitted by the petitioner |
|---|
| 24 | 24 | | and the certificate holder. In addition, the utility commission |
|---|
| 25 | 25 | | may require an award of compensation as otherwise provided by this |
|---|
| 26 | 26 | | section. |
|---|
| 27 | 27 | | (a-4) Chapter 2001, Government Code, does not apply to any |
|---|
| 28 | 28 | | petition filed under Subsection (a-1). [The decision of the |
|---|
| 29 | 29 | | utility commission on the petition is final after any |
|---|
| 30 | 30 | | reconsideration authorized by the utility commission's rules and |
|---|
| 31 | 31 | | may not be appealed.] |
|---|
| 32 | 32 | | (a-12) The utility commission may not grant a petition |
|---|
| 33 | 33 | | received under Subsection (a-5) if, before the 30th day after the |
|---|
| 34 | 34 | | date the landowner files the petition under Subsection (a-5), the |
|---|
| 35 | 35 | | certificate holder demonstrates that the certificate holder, |
|---|
| 36 | 36 | | through planning, design, construction of facilities, or |
|---|
| 37 | 37 | | contractual obligations to serve the tract of land, has made |
|---|
| 38 | 38 | | service available to the tract. On the utility commission's |
|---|
| 39 | 39 | | determination that the certificate holder has made the |
|---|
| 40 | 40 | | demonstration, the utility commission shall inform the petitioner |
|---|
| 41 | 41 | | that: |
|---|
| 42 | 42 | | (1) the tract of land is not eligible for expedited |
|---|
| 43 | 43 | | release under Subsection (a-5); and |
|---|
| 44 | 44 | | (2) the landowner may seek expedited release under |
|---|
| 45 | 45 | | Subsection (a-1) if that subsection is applicable. |
|---|
| 46 | 46 | | (d) A petitioner whose petition under Subsection (a-1) or |
|---|
| 47 | 47 | | (a-5) has been granted shall provide just and adequate [retail |
|---|
| 48 | 48 | | public utility may not in any way render retail water or sewer |
|---|
| 49 | 49 | | service directly or indirectly to the public in an area that has |
|---|
| 50 | 50 | | been decertified under this section without providing] |
|---|
| 51 | 51 | | compensation in accordance with Subsection (g), as determined by |
|---|
| 52 | 52 | | [for any property that] the utility commission [determines is |
|---|
| 53 | 53 | | rendered useless or valueless to the decertified retail public |
|---|
| 54 | 54 | | utility as a result of the decertification]. A utility commission |
|---|
| 55 | 55 | | order following a petition under Subsection (a-1) or (a-5) to |
|---|
| 56 | 56 | | revoke or amend a certificate takes effect on the date the |
|---|
| 57 | 57 | | petitioner pays the compensation or deposits an equal amount into |
|---|
| 58 | 58 | | the registry of the district court under Subsection (f). |
|---|
| 59 | 59 | | (e) The utility commission shall conduct a hearing to |
|---|
| 60 | 60 | | determine [determination of] the monetary amount of compensation a |
|---|
| 61 | 61 | | petitioner under Subsection (a-1) or (a-5) must pay in accordance |
|---|
| 62 | 62 | | with Chapter 2001, Government Code. The utility commission shall |
|---|
| 63 | 63 | | make the determination [, if any, shall be determined at the time |
|---|
| 64 | 64 | | another retail public utility seeks to provide service in the |
|---|
| 65 | 65 | | previously decertified area and before service is actually |
|---|
| 66 | 66 | | provided. The utility commission shall ensure that the monetary |
|---|
| 67 | 67 | | amount of compensation is determined] not later than the 90th |
|---|
| 68 | 68 | | calendar day after the date on which [a retail public utility |
|---|
| 69 | 69 | | notifies] the utility commission revokes or amends a certificate |
|---|
| 70 | 70 | | [of its intent to provide service to the decertified area]. |
|---|
| 71 | 71 | | (f) If either party to a proceeding following a petition |
|---|
| 72 | 72 | | under Subsection (a-1) or (a-5) appeals the utility commission |
|---|
| 73 | 73 | | order to revoke or amend a certificate or the compensation order, |
|---|
| 74 | 74 | | the [The] monetary amount of compensation [shall be] determined by |
|---|
| 75 | 75 | | the utility commission shall be deposited into the registry of the |
|---|
| 76 | 76 | | district court of Travis County pending the outcome of the appeal [a |
|---|
| 77 | 77 | | qualified individual or firm serving as independent appraiser |
|---|
| 78 | 78 | | agreed upon by the decertified retail public utility and the retail |
|---|
| 79 | 79 | | public utility seeking to serve the area. The determination of |
|---|
| 80 | 80 | | compensation by the independent appraiser shall be binding on the |
|---|
| 81 | 81 | | utility commission. The costs of the independent appraiser shall |
|---|
| 82 | 82 | | be borne by the retail public utility seeking to serve the area]. |
|---|
| 83 | 83 | | (g) For the purpose of implementing this section, the value |
|---|
| 84 | 84 | | of real property owned and utilized by the retail public utility for |
|---|
| 85 | 85 | | its facilities shall be determined according to the standards set |
|---|
| 86 | 86 | | forth in Chapter 21, Property Code, governing actions in eminent |
|---|
| 87 | 87 | | domain and the value of personal property shall be determined |
|---|
| 88 | 88 | | according to the factors in this subsection. The factors ensuring |
|---|
| 89 | 89 | | that the compensation to a retail public utility is just and |
|---|
| 90 | 90 | | adequate shall include: the amount of the retail public utility's |
|---|
| 91 | 91 | | debt allocable for service to the area in question; the value of the |
|---|
| 92 | 92 | | service facilities of the retail public utility located within the |
|---|
| 93 | 93 | | area in question; the amount of any expenditures for planning, |
|---|
| 94 | 94 | | design, or construction of service facilities that are allocable to |
|---|
| 95 | 95 | | service to the area in question; the amount of the retail public |
|---|
| 96 | 96 | | utility's contractual obligations allocable to the area in |
|---|
| 97 | 97 | | question; any demonstrated impairment of service or increase of |
|---|
| 98 | 98 | | cost to consumers of the retail public utility remaining after the |
|---|
| 99 | 99 | | decertification; the impact of [on] future revenues lost [from |
|---|
| 100 | 100 | | existing customers]; necessary and reasonable legal expenses and |
|---|
| 101 | 101 | | professional fees; and other relevant factors. The utility |
|---|
| 102 | 102 | | commission shall adopt rules governing the evaluation of these |
|---|
| 103 | 103 | | factors. |
|---|
| 104 | 104 | | SECTION 2. Section 13.255, Water Code, is amended by |
|---|
| 105 | 105 | | amending Subsections (g) and (l) to read as follows: |
|---|
| 106 | 106 | | (g) For the purpose of implementing this section, the value |
|---|
| 107 | 107 | | of real property owned and utilized by the retail public utility for |
|---|
| 108 | 108 | | its facilities shall be determined according to the standards set |
|---|
| 109 | 109 | | forth in Chapter 21, Property Code, governing actions in eminent |
|---|
| 110 | 110 | | domain; the value of personal property shall be determined |
|---|
| 111 | 111 | | according to the factors in this subsection. The factors ensuring |
|---|
| 112 | 112 | | that the compensation to a retail public utility is just and |
|---|
| 113 | 113 | | adequate, shall, at a minimum, include: impact on the existing |
|---|
| 114 | 114 | | indebtedness of the retail public utility and its ability to repay |
|---|
| 115 | 115 | | that debt, the value of the service facilities of the retail public |
|---|
| 116 | 116 | | utility located within the area in question, the amount of any |
|---|
| 117 | 117 | | expenditures for planning, design, or construction of service |
|---|
| 118 | 118 | | facilities outside the incorporated or annexed area that are |
|---|
| 119 | 119 | | allocable to service to the area in question, the amount of the |
|---|
| 120 | 120 | | retail public utility's contractual obligations allocable to the |
|---|
| 121 | 121 | | area in question, any demonstrated impairment of service or |
|---|
| 122 | 122 | | increase of cost to consumers of the retail public utility |
|---|
| 123 | 123 | | remaining after the single certification, the impact of [on] future |
|---|
| 124 | 124 | | revenues lost [from existing customers], necessary and reasonable |
|---|
| 125 | 125 | | legal expenses and professional fees, factors relevant to |
|---|
| 126 | 126 | | maintaining the current financial integrity of the retail public |
|---|
| 127 | 127 | | utility, and other relevant factors. |
|---|
| 128 | 128 | | (l) For an area incorporated or annexed by a municipality, |
|---|
| 129 | 129 | | the compensation provided under Subsection (g) shall be determined |
|---|
| 130 | 130 | | by the utility commission in accordance with Chapter 2001, |
|---|
| 131 | 131 | | Government Code [a qualified individual or firm to serve as |
|---|
| 132 | 132 | | independent appraiser, who shall be selected by the affected retail |
|---|
| 133 | 133 | | public utility, and the costs of the appraiser shall be paid by the |
|---|
| 134 | 134 | | municipality. For an area annexed by a municipality, the |
|---|
| 135 | 135 | | compensation provided under Subsection (g) shall be determined by a |
|---|
| 136 | 136 | | qualified individual or firm to which the municipality and the |
|---|
| 137 | 137 | | retail public utility agree to serve as independent appraiser. If |
|---|
| 138 | 138 | | the retail public utility and the municipality are unable to agree |
|---|
| 139 | 139 | | on a single individual or firm to serve as the independent appraiser |
|---|
| 140 | 140 | | before the 11th day after the date the retail public utility or |
|---|
| 141 | 141 | | municipality notifies the other party of the impasse, the retail |
|---|
| 142 | 142 | | public utility and municipality each shall appoint a qualified |
|---|
| 143 | 143 | | individual or firm to serve as independent appraiser. On or before |
|---|
| 144 | 144 | | the 10th business day after the date of their appointment, the |
|---|
| 145 | 145 | | independent appraisers shall meet to reach an agreed determination |
|---|
| 146 | 146 | | of the amount of compensation. If the appraisers are unable to |
|---|
| 147 | 147 | | agree on a determination before the 16th business day after the date |
|---|
| 148 | 148 | | of their first meeting under this subsection, the retail public |
|---|
| 149 | 149 | | utility or municipality may petition the utility commission or a |
|---|
| 150 | 150 | | person the utility commission designates for the purpose to appoint |
|---|
| 151 | 151 | | a third qualified independent appraiser to reconcile the appraisals |
|---|
| 152 | 152 | | of the two originally appointed appraisers. The determination of |
|---|
| 153 | 153 | | the third appraiser may not be less than the lesser or more than the |
|---|
| 154 | 154 | | greater of the two original appraisals. The costs of the |
|---|
| 155 | 155 | | independent appraisers for an annexed area shall be shared equally |
|---|
| 156 | 156 | | by the retail public utility and the municipality. The |
|---|
| 157 | 157 | | determination of compensation under this subsection is binding on |
|---|
| 158 | 158 | | the utility commission]. |
|---|
| 159 | 159 | | SECTION 3. Section 13.254(g-1), Water Code, is repealed. |
|---|
| 160 | 160 | | SECTION 4. The change in law made by this Act applies only |
|---|
| 161 | 161 | | to a proceeding affecting a certificate of public convenience and |
|---|
| 162 | 162 | | necessity that commences on or after the effective date of this Act. |
|---|
| 163 | 163 | | A proceeding affecting a certificate of public convenience and |
|---|
| 164 | 164 | | necessity that commenced before the effective date of this Act is |
|---|
| 165 | 165 | | governed by the law in effect on the date the proceeding commenced, |
|---|
| 166 | 166 | | and that law is continued in effect for that purpose. |
|---|
| 167 | 167 | | SECTION 5. This Act takes effect September 1, 2017. |
|---|