85R3703 GRM-F
By: Miles S.B. No. 1985
A BILL TO BE ENTITLED
AN ACT
relating to the revocation or amendment of a certificate of public
convenience and necessity for water utilities in a service area.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 13.254, Water Code, is amended by
amending Subsections (a-3), (a-4), (d), (e), (f), and (g) and
adding Subsection (a-12) to read as follows:
(a-3) Within 90 [60] calendar days from the date the utility
commission determines the petition filed pursuant to Subsection
(a-1) to be administratively complete, the utility commission shall
grant the petition unless the utility 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 utility
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 utility commission
may require an award of compensation as otherwise provided by this
section.
(a-4) Chapter 2001, Government Code, does not apply to any
petition filed under Subsection (a-1). [The decision of the
utility commission on the petition is final after any
reconsideration authorized by the utility commission's rules and
may not be appealed.]
(a-12) The utility commission may not grant a petition
received under Subsection (a-5) if, before the 30th day after the
date the landowner files the petition under Subsection (a-5), the
certificate holder demonstrates that the certificate holder,
through planning, design, construction of facilities, or
contractual obligations to serve the tract of land, has made
service available to the tract. On the utility commission's
determination that the certificate holder has made the
demonstration, the utility commission shall inform the petitioner
that:
(1) the tract of land is not eligible for expedited
release under Subsection (a-5); and
(2) the landowner may seek expedited release under
Subsection (a-1) if that subsection is applicable.
(d) A petitioner whose petition under Subsection (a-1) or
(a-5) has been granted shall provide just and adequate [retail
public utility may not in any way render retail water or sewer
service directly or indirectly to the public in an area that has
been decertified under this section without providing]
compensation in accordance with Subsection (g), as determined by
[for any property that] the utility commission [determines is
rendered useless or valueless to the decertified retail public
utility as a result of the decertification]. A utility commission
order following a petition under Subsection (a-1) or (a-5) to
revoke or amend a certificate takes effect on the date the
petitioner pays the compensation or deposits an equal amount into
the registry of the district court under Subsection (f).
(e) The utility commission shall conduct a hearing to
determine [determination of] the monetary amount of compensation a
petitioner under Subsection (a-1) or (a-5) must pay in accordance
with Chapter 2001, Government Code. The utility commission shall
make the determination [, if any, shall be determined at the time
another retail public utility seeks to provide service in the
previously decertified area and before service is actually
provided. The utility commission shall ensure that the monetary
amount of compensation is determined] not later than the 90th
calendar day after the date on which [a retail public utility
notifies] the utility commission revokes or amends a certificate
[of its intent to provide service to the decertified area].
(f) If either party to a proceeding following a petition
under Subsection (a-1) or (a-5) appeals the utility commission
order to revoke or amend a certificate or the compensation order,
the [The] monetary amount of compensation [shall be] determined by
the utility commission shall be deposited into the registry of the
district court of Travis County pending the outcome of the appeal [a
qualified individual or firm serving as independent appraiser
agreed upon by the decertified retail public utility and the retail
public utility seeking to serve the area. The determination of
compensation by the independent appraiser shall be binding on the
utility commission. The costs of the independent appraiser shall
be borne by the retail public utility seeking to serve the area].
(g) For the purpose of implementing this section, the value
of real property owned and utilized by the retail public utility for
its facilities shall be determined according to the standards set
forth in Chapter 21, Property Code, governing actions in eminent
domain and the value of personal property shall be determined
according to the factors in this subsection. The factors ensuring
that the compensation to a retail public utility is just and
adequate shall include: the amount of the retail public utility's
debt allocable for service to the area in question; the value of the
service facilities of the retail public utility located within the
area in question; the amount of any expenditures for planning,
design, or construction of service facilities that are allocable to
service to the area in question; the amount of the retail public
utility's contractual obligations allocable to the area in
question; any demonstrated impairment of service or increase of
cost to consumers of the retail public utility remaining after the
decertification; the impact of [on] future revenues lost [from
existing customers]; necessary and reasonable legal expenses and
professional fees; and other relevant factors. The utility
commission shall adopt rules governing the evaluation of these
factors.
SECTION 2. Section 13.255, Water Code, is amended by
amending Subsections (g) and (l) to read as follows:
(g) For the purpose of implementing this section, the value
of real property owned and utilized by the retail public utility for
its facilities shall be determined according to the standards set
forth in Chapter 21, Property Code, governing actions in eminent
domain; the value of personal property shall be determined
according to the factors in this subsection. The factors ensuring
that the compensation to a retail public utility is just and
adequate, shall, at a minimum, include: impact on the existing
indebtedness of the retail public utility and its ability to repay
that debt, the value of the service facilities of the retail public
utility located within the area in question, the amount of any
expenditures for planning, design, or construction of service
facilities outside the incorporated or annexed area that are
allocable to service to the area in question, the amount of the
retail public utility's contractual obligations allocable to the
area in question, any demonstrated impairment of service or
increase of cost to consumers of the retail public utility
remaining after the single certification, the impact of [on] future
revenues lost [from existing customers], necessary and reasonable
legal expenses and professional fees, factors relevant to
maintaining the current financial integrity of the retail public
utility, and other relevant factors.
(l) For an area incorporated or annexed by a municipality,
the compensation provided under Subsection (g) shall be determined
by the utility commission in accordance with Chapter 2001,
Government Code [a qualified individual or firm to serve as
independent appraiser, who shall be selected by the affected retail
public utility, and the costs of the appraiser shall be paid by the
municipality. For an area annexed by a municipality, the
compensation provided under Subsection (g) shall be determined by a
qualified individual or firm to which the municipality and the
retail public utility agree to serve as independent appraiser. If
the retail public utility and the municipality are unable to agree
on a single individual or firm to serve as the independent appraiser
before the 11th day after the date the retail public utility or
municipality notifies the other party of the impasse, the retail
public utility and municipality each shall appoint a qualified
individual or firm to serve as independent appraiser. On or before
the 10th business day after the date of their appointment, the
independent appraisers shall meet to reach an agreed determination
of the amount of compensation. If the appraisers are unable to
agree on a determination before the 16th business day after the date
of their first meeting under this subsection, the retail public
utility or municipality may petition the utility commission or a
person the utility commission designates for the purpose to appoint
a third qualified independent appraiser to reconcile the appraisals
of the two originally appointed appraisers. The determination of
the third appraiser may not be less than the lesser or more than the
greater of the two original appraisals. The costs of the
independent appraisers for an annexed area shall be shared equally
by the retail public utility and the municipality. The
determination of compensation under this subsection is binding on
the utility commission].
SECTION 3. Section 13.254(g-1), Water Code, is repealed.
SECTION 4. The change in law made by this Act applies only
to a proceeding affecting a certificate of public convenience and
necessity that commences on or after the effective date of this Act.
A proceeding affecting a certificate of public convenience and
necessity that commenced before the effective date of this Act is
governed by the law in effect on the date the proceeding commenced,
and that law is continued in effect for that purpose.
SECTION 5. This Act takes effect September 1, 2017.