88R6989 DIO-D
By: Perry S.B. No. 2441
A BILL TO BE ENTITLED
AN ACT
relating to the transfer of functions relating to the economic
regulation of water and sewer service from the Public Utility
Commission of Texas and the Office of Public Utility Counsel to the
Water Public Utility Commission and the Office of Water Public
Utility Counsel; creating a criminal offense.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 11.041(f), Water Code, is amended to
read as follows:
(f) The commission shall hold a hearing on the complaint at
the time and place stated in the order. It may hear evidence orally
or by affidavit in support of or against the complaint, and it may
hear arguments. The Water Public Utility Commission [utility
commission] may participate in the hearing if necessary to present
evidence on the price or rental demanded for the available water.
On completion of the hearing, the commission shall render a written
decision.
SECTION 2. Section 12.013(b), Water Code, is amended to
read as follows:
(b) In this section:
(1) "Utility commission" means the Water Public
Utility Commission.
(2) "Political[, "political] subdivision" means
incorporated cities, towns or villages, counties, river
authorities, water districts, and other special purpose districts.
SECTION 3. Section 13.002(22-a), Water Code, is amended to
read as follows:
(22-a) "Utility commission" means the Water Public
Utility Commission [of Texas].
SECTION 4. Section 13.017, Water Code, is amended to read as
follows:
Sec. 13.017. OFFICE OF WATER PUBLIC UTILITY COUNSEL; POWERS
AND DUTIES. (a) In this section, "counsellor" and "office" have
the meanings assigned by Section 14A.002 [11.003, Utilities Code].
(b) The independent Office of Water Public Utility Counsel
represents the interests of residential and small commercial
consumers under this chapter. The office:
(1) shall assess the effect of utility rate changes
and other regulatory actions on residential consumers in this
state;
(2) shall advocate in the office's own name a position
determined by the counsellor to be most advantageous to a
substantial number of residential consumers;
(3) may appear or intervene, as a party or otherwise,
as a matter of right on behalf of:
(A) residential consumers, as a class, in any
proceeding before the utility commission, including an alternative
dispute resolution proceeding; and
(B) small commercial consumers, as a class, in
any proceeding in which the counsellor determines that small
commercial consumers are in need of representation, including an
alternative dispute resolution proceeding;
(4) may initiate or intervene as a matter of right or
otherwise appear in a judicial proceeding:
(A) that involves an action taken by an
administrative agency in a proceeding, including an alternative
dispute resolution proceeding, in which the counsellor is
authorized to appear; or
(B) in which the counsellor determines that
residential consumers or small commercial consumers are in need of
representation;
(5) is entitled to the same access as a party, other
than utility commission staff, to records gathered by the utility
commission under Section 13.133;
(6) is entitled to discovery of any nonprivileged
matter that is relevant to the subject matter of a proceeding or
petition before the utility commission;
(7) may represent an individual residential or small
commercial consumer with respect to the consumer's disputed
complaint concerning retail utility services that is unresolved
before the utility commission;
(8) may recommend legislation to the legislature that
the office determines would positively affect the interests of
residential and small commercial consumers; and
(9) may conduct consumer outreach and education
programs for residential and small commercial consumers.
(c) This section does not:
(1) affect a duty the office is required to perform
under other law; or
(2) limit the authority of the utility commission to
represent residential or small commercial consumers.
(d) The appearance of the counsellor in a proceeding does
not preclude the appearance of other parties on behalf of
residential or small commercial consumers. The counsellor may not
be grouped with any other party.
SECTION 5. Subtitle B, Title 2, Water Code, is amended by
adding Chapters 14 and 14A to read as follows:
CHAPTER 14. WATER PUBLIC UTILITY COMMISSION
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 14.001. WATER PUBLIC UTILITY COMMISSION. The Water
Public Utility Commission exercises the jurisdiction and powers
conferred by this subtitle.
Sec. 14.002. DEFINITIONS. In this chapter:
(1) "Affiliate" has the meaning assigned by Section
13.002.
(2) "Commission" means the Water Public Utility
Commission.
(3) "Commissioner" means a member of the Water Public
Utility Commission.
(4) "Executive director" means the executive director
of the commission.
(5) "Retail public utility" has the meaning assigned
by Section 13.002.
Sec. 14.003. COMMISSION OFFICE. (a) The principal office
of the commission is in Austin.
(b) The commission's office shall be open daily during usual
business hours. The commission's office is not required to be open
on Saturday, Sunday, or a legal holiday.
Sec. 14.004. SEAL. (a) The commission has a seal bearing
the inscription: "Water Public Utility Commission."
(b) The seal shall be affixed to each record and to an
authentication of a copy of a record. The commission may require
the seal to be affixed to other instruments.
(c) A court of this state shall take judicial notice of the
seal.
Sec. 14.005. REPRESENTATION BY ATTORNEY GENERAL. The
attorney general shall represent the commission in a matter before
a state court, a court of the United States, or a federal public
utility regulatory commission.
Sec. 14.006. APPLICATION OF SUNSET ACT. The Water Public
Utility Commission is subject to Chapter 325, Government Code
(Texas Sunset Act). Unless continued in existence as provided by
that chapter, the commission is abolished September 1, 2035.
SUBCHAPTER B. COMMISSION APPOINTMENT AND FUNCTIONS
Sec. 14.051. APPOINTMENT; TERM. (a) The commission is
composed of five commissioners appointed by the governor with the
advice and consent of the senate.
(b) An appointment to the commission shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
(c) In making appointments to the commission, the governor
shall appoint:
(1) one individual with expertise in rural retail
public utilities;
(2) one individual with expertise in urban retail
public utilities;
(3) one individual with expertise in financial matters
of retail public utilities;
(4) one individual with expertise in legal matters of
retail public utilities; and
(5) one individual with general expertise in retail
public utilities.
(d) Commissioners serve staggered six-year terms.
Sec. 14.052. PRESIDING OFFICER. (a) The governor shall
designate a commissioner as the presiding officer.
(b) The presiding officer serves in that capacity at the
pleasure of the governor.
Sec. 14.053. PRESIDING OFFICER QUALIFICATIONS. The
commissioner designated as the presiding officer must be a resident
of this state.
Sec. 14.054. MEMBERSHIP QUALIFICATIONS. (a) To be
eligible for appointment, a commissioner must:
(1) be a qualified voter;
(2) be a citizen of the United States;
(3) be a resident of this state; and
(4) be a competent and experienced administrator.
(b) A person is not eligible for appointment as a
commissioner if the person:
(1) at any time during the one year preceding
appointment:
(A) personally served as an officer, director,
owner, employee, partner, or legal representative of a retail
public utility regulated by the commission or of an affiliate or
direct competitor of a retail public utility regulated by the
commission;
(B) owned or controlled, directly or indirectly,
more than a 10 percent interest in a retail public utility regulated
by the commission or in an affiliate or direct competitor of a
retail public utility regulated by the commission; or
(C) served as an executive officer listed under
Section 1, Article IV, Texas Constitution, other than the secretary
of state, or a member of the legislature; or
(2) is not qualified to serve under Section 14.151,
14.152, or 14.153.
Sec. 14.055. REMOVAL OF COMMISSIONER. (a) It is a ground
for removal from the commission if a commissioner:
(1) does not have at the time of appointment or
maintain during service on the commission the qualifications
required by Section 14.053;
(2) violates a prohibition provided by Section 14.054
or by Subchapter D;
(3) cannot discharge the commissioner's duties for a
substantial part of the term for which the commissioner is
appointed because of illness or disability; or
(4) is absent from more than half of the regularly
scheduled commission meetings that the commissioner is eligible to
attend during a calendar year unless the absence is excused by
majority vote of the commission.
(b) The validity of an action of the commission is not
affected by the fact that the action is taken when a ground for
removal of a commissioner exists.
(c) If the executive director has knowledge that a potential
ground for removal exists, the executive director shall notify the
presiding officer of the commission of the potential ground. The
presiding officer shall then notify the governor and the attorney
general that a potential ground for removal exists. If the
potential ground for removal involves the presiding officer, the
executive director shall notify the next highest officer of the
commission, who shall notify the governor and the attorney general
that a potential ground for removal exists.
Sec. 14.056. PROHIBITION ON SEEKING ANOTHER OFFICE. A
person may not seek nomination or election to another civil office
of this state or of the United States while serving as a
commissioner. If a commissioner files for nomination or election
to another civil office of this state or of the United States, the
person's office as commissioner immediately becomes vacant, and the
governor shall appoint a successor.
Sec. 14.057. EFFECT OF VACANCY. A vacancy or
disqualification does not prevent the remaining commissioner or
commissioners from exercising the powers of the commission.
Sec. 14.058. COMPENSATION. The annual salary of the
commissioners is determined by the legislature.
Sec. 14.059. MEETINGS. The commission shall hold meetings
at its office and at other convenient places in this state as
expedient and necessary for the proper performance of the
commission's duties.
Sec. 14.060. TRAINING PROGRAM FOR COMMISSIONERS. (a)
Before a commissioner may assume the commissioner's duties and
before the commissioner may be confirmed by the senate, the
commissioner must complete at least one course of the training
program established under this section.
(b) A training program established under this section shall
provide information to the commissioner regarding:
(1) the enabling legislation that created the
commission and its policymaking body to which the commissioner is
appointed to serve;
(2) the programs operated by the commission;
(3) the role and functions of the commission;
(4) the rules of the commission with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the
commission;
(7) the requirements of Chapters 551, 552, and 2001,
Government Code;
(8) the requirements of the conflict of interest laws
and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the
commission or the Texas Ethics Commission.
(c) A person who is appointed to the commission is entitled
to reimbursement, as provided by the General Appropriations Act,
for the travel expenses incurred in attending the training program
regardless of whether the attendance at the program occurs before
or after the person qualifies for office.
Sec. 14.061. FORMER COMMISSIONER: LOBBYING RESTRICTED. A
former member of the commission may not, before the first
anniversary of the date the member ceases to be a member of the
commission, engage in an activity before the commission that
requires registration under Chapter 305, Government Code.
SUBCHAPTER C. COMMISSION PERSONNEL
Sec. 14.101. COMMISSION EMPLOYEES. The commission shall
employ:
(1) an executive director; and
(2) officers and other employees the commission
considers necessary to administer this subtitle.
Sec. 14.102. DUTIES OF EMPLOYEES. The commission shall
develop and implement policies that clearly separate the
policymaking responsibilities of the commission and the management
responsibilities of the commission employees.
Sec. 14.103. DUTIES OF EXECUTIVE DIRECTOR. The executive
director is responsible for the daily operations of the commission
and shall coordinate the activities of commission employees.
Sec. 14.104. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS; MERIT PAY. (a) The executive director or the
executive director's designee shall develop an intra-agency career
ladder program that addresses opportunities for mobility and
advancement for commission employees. The program shall require
intra-agency posting of each position concurrently with any public
posting.
(b) The executive director or the executive director's
designee shall develop a system of annual performance evaluations
that are based on documented employee performance. Merit pay for
commission employees must be based on the system established under
this subsection.
Sec. 14.105. EQUAL EMPLOYMENT OPPORTUNITY POLICY
STATEMENT. (a) The executive director or the executive director's
designee shall prepare and maintain a written policy statement to
ensure implementation of a program of equal employment opportunity
under which all personnel transactions are made without regard to
race, color, disability, sex, religion, age, or national origin.
(b) The policy statement under Subsection (a) must include:
(1) personnel policies, including policies related to
recruitment, evaluation, selection, appointment, training, and
promotion of personnel, that are in compliance with the
requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the commission
workforce that meets federal and state guidelines;
(3) procedures by which a determination can be made
about the extent of underuse in the commission workforce of all
persons for whom federal or state guidelines encourage a more
equitable balance; and
(4) reasonable methods to appropriately address the
underuse.
(c) A policy statement prepared under Subsection (b) must:
(1) cover an annual period;
(2) be updated at least annually;
(3) be reviewed by the Civil Rights Division of the
Texas Workforce Commission for compliance with Subsection (b)(1);
and
(4) be filed with the governor's office.
(d) The governor's office shall deliver a biennial report to
the legislature based on the information received under Subsection
(c). The report may be made separately or as a part of other
biennial reports to the legislature.
SUBCHAPTER D. PROHIBITED RELATIONSHIPS AND ACTIVITIES
Sec. 14.151. REGISTERED LOBBYIST. A person required to
register as a lobbyist under Chapter 305, Government Code, because
of the person's activities for compensation on behalf of a
profession related to the operation of the commission may not serve
as a commissioner.
Sec. 14.152. CONFLICT OF INTEREST. (a) A person is not
eligible for appointment as a commissioner or employment as
executive director of the commission if:
(1) the person serves on the board of directors of a
company that supplies utility-related services or utility-related
products to regulated or unregulated retail public utilities; or
(2) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization that is
regulated by or receives funds from the commission;
(B) directly or indirectly owns or controls more
than a 10 percent interest in:
(i) a business entity or other organization
that is regulated by or receives funds from the commission; or
(ii) a retail public utility competitor or
supplier or another entity affected by a commission decision in a
manner other than by the setting of rates for that class of
customer;
(C) uses or receives a substantial amount of
tangible goods, services, or funds from the commission, other than
compensation or reimbursement authorized by law for commission
membership, attendance, or expenses; or
(D) notwithstanding Paragraph (B), has an
interest in a mutual fund or retirement fund in which more than 10
percent of the fund's holdings at the time of appointment is in a
single retail public utility, retail public utility competitor, or
retail public utility supplier in this state and the person does not
disclose this information to the governor, senate, commission, or
other entity, as appropriate.
(b) A person otherwise ineligible because of Subsection
(a)(2)(B) may be appointed to the commission and serve as a
commissioner or may be employed as executive director if the
person:
(1) notifies the attorney general and commission that
the person is ineligible because of Subsection (a)(2)(B); and
(2) divests the person or the person's spouse of the
ownership or control:
(A) before beginning service or employment; or
(B) if the person is already serving or employed,
within a reasonable time.
Sec. 14.153. RELATIONSHIP WITH TRADE ASSOCIATION. A person
may not serve as a commissioner or be a commission employee who is
employed in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an
exemption to the overtime provisions of the federal Fair Labor
Standards Act of 1938 (29 U.S.C. Section 201 et seq.), if the person
is:
(1) an officer, employee, or paid consultant of a
trade association; or
(2) the spouse of an officer, manager, or paid
consultant of a trade association.
Sec. 14.154. PROHIBITED ACTIVITIES. (a) During the period
of service with the commission, a commissioner or commission
employee may not:
(1) have a pecuniary interest, including an interest
as an officer, director, partner, owner, employee, attorney, or
consultant, in:
(A) a retail public utility or affiliate; or
(B) a person a significant portion of whose
business consists of furnishing goods or services to retail public
utilities or affiliates; or
(2) accept a gift, gratuity, or entertainment from:
(A) a retail public utility, affiliate, or direct
competitor of a retail public utility;
(B) a person a significant portion of whose
business consists of furnishing goods or services to retail public
utilities, affiliates, or direct competitors of retail public
utilities; or
(C) an agent, representative, attorney,
employee, officer, owner, director, or partner of a person
described by Paragraph (A) or (B).
(b) A commissioner or a commission employee may not directly
or indirectly solicit, request from, or suggest or recommend to a
retail public utility or an agent, representative, attorney,
employee, officer, owner, director, or partner of a retail public
utility the appointment to a position or the employment of a person
by the retail public utility or affiliate.
(c) A person may not give or offer to give a gift, gratuity,
employment, or entertainment to a commissioner or commission
employee if that person is:
(1) a retail public utility, affiliate, or direct
competitor of a retail public utility;
(2) a person who furnishes goods or services to a
retail public utility, affiliate, or direct competitor of a retail
public utility; or
(3) an agent, representative, attorney, employee,
officer, owner, director, or partner of a person described by
Subdivision (1) or (2).
(d) A retail public utility, affiliate, or direct
competitor of a retail public utility or a person furnishing goods
or services to a retail public utility, affiliate, or direct
competitor of a retail public utility may not aid, abet, or
participate with a commissioner, commission employee, or former
commission employee in conduct that violates Subsection (a)(2) or
(c).
(e) Subsection (a)(1) does not apply to an interest in a
nonprofit group or association, other than a trade association,
that is solely supported by gratuitous contributions of money,
property, or services.
(f) It is not a violation of this section if a commissioner
or commission employee, on becoming the owner of stocks, bonds, or
another pecuniary interest in a retail public utility, affiliate,
or direct competitor of a retail public utility otherwise than
voluntarily, informs the commission and the attorney general of the
ownership and divests the ownership or interest within a reasonable
time.
(g) It is not a violation of this section if a pecuniary
interest is held indirectly by ownership of an interest in a
retirement system, institution, or fund that in the normal course
of business invests in diverse securities independently of the
control of the commissioner or commission employee.
(h) This section does not apply to a contract for a retail
public utility product or service or equipment for use of a retail
public utility product when a commissioner or commission employee
is acting as a consumer.
(i) In this section, a "pecuniary interest" includes
income, compensation, and payment of any kind, in addition to an
ownership interest.
Sec. 14.155. PROHIBITION ON EMPLOYMENT OR REPRESENTATION.
(a) A commissioner, a commission employee, or an employee of the
State Office of Administrative Hearings involved in hearing cases
for the commission may not:
(1) be employed by a retail public utility that was in
the scope of the commissioner's or employee's official
responsibility while the commissioner or employee was associated
with the commission or the State Office of Administrative Hearings;
or
(2) represent a person before the commission or State
Office of Administrative Hearings or a court in a matter:
(A) in which the commissioner or employee was
personally involved while associated with the commission or State
Office of Administrative Hearings; or
(B) that was within the commissioner's or
employee's official responsibility while the commissioner or
employee was associated with the commission or State Office of
Administrative Hearings.
(b) The prohibition of Subsection (a)(1) applies until the:
(1) second anniversary of the date the commissioner
ceases to serve as a commissioner; and
(2) first anniversary of the date the employee's
employment with the commission or State Office of Administrative
Hearings ceases.
(c) The prohibition of Subsection (a)(2) applies while a
commissioner, commission employee, or employee of the State Office
of Administrative Hearings involved in hearing utility cases is
associated with the commission or State Office of Administrative
Hearings and at any time after.
Sec. 14.156. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The executive director or the executive director's
designee shall provide to commissioners and commission employees as
often as necessary information regarding their:
(1) qualifications for office or employment under this
chapter; and
(2) responsibilities under applicable laws relating
to standards of conduct for state officers and employees.
SUBCHAPTER E. PUBLIC INTEREST INFORMATION AND REPORTS
Sec. 14.201. PUBLIC INTEREST INFORMATION. (a) The
commission shall prepare information of public interest describing
the functions of the commission and the commission's procedures by
which a complaint is filed with and resolved by the commission. The
commission shall make the information available to the public and
appropriate state agencies.
(b) The commission by rule shall establish methods by which
consumers and service recipients are notified of the name, mailing
address, and telephone number of the commission for the purpose of
directing complaints to the commission.
Sec. 14.202. PUBLIC PARTICIPATION. (a) The commission
shall develop and implement policies that provide the public with a
reasonable opportunity to appear before the commission and to speak
on any issue under the jurisdiction of the commission.
(b) The commission shall comply with federal and state laws
related to program and facility accessibility.
(c) The commission shall prepare and maintain a written plan
that describes how a person who does not speak English may be
provided reasonable access to the commission's programs and
services.
Sec. 14.203. BIENNIAL REPORT. Not later than January 15 of
each odd-numbered year, the commission shall prepare a written
report that includes suggestions regarding modification and
improvement of the commission's statutory authority and for the
improvement of retail public utility regulation in general that the
commission considers appropriate for protecting and furthering the
interest of the public.
Sec. 14.204. INTERNET FOR HEARINGS AND MEETINGS. The
commission shall make publicly accessible without charge live
Internet video of all public hearings and meetings the commission
holds for viewing from the commission's Internet website. The
commission may recover the costs of administering this section by
imposing an assessment against a retail public utility.
CHAPTER 14A. OFFICE OF WATER PUBLIC UTILITY COUNSEL
SUBCHAPTER A. GENERAL PROVISIONS; POWERS AND DUTIES
Sec. 14A.001. OFFICE OF WATER PUBLIC UTILITY COUNSEL. The
independent office of water public utility counsel represents the
interests of residential and small commercial consumers.
Sec. 14A.002. DEFINITIONS. In this chapter:
(1) "Commission" has the meaning assigned by Section
14.002.
(2) "Counsellor" means the water public utility
counsel.
(3) "Office" means the Office of Water Public Utility
Counsel.
(4) "Proceeding" has the meaning assigned by Section
13.002.
Sec. 14A.003. APPLICATION OF SUNSET ACT. The Office of
Water Public Utility Counsel is subject to Chapter 325, Government
Code (Texas Sunset Act). Unless continued in existence as provided
by that chapter, the office is abolished September 1, 2035.
Sec. 14A.004. OFFICE POWERS AND DUTIES. The office has the
powers and duties assigned by Section 13.017.
Sec. 14A.005. ALTERNATIVE DISPUTE RESOLUTION PROCEDURES.
(a) The counsellor shall develop and implement a policy to
encourage the use of appropriate alternative dispute resolution
procedures under Chapter 2009, Government Code, to assist in the
resolution of internal disputes under the office's jurisdiction.
(b) The office's procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
for the use of alternative dispute resolution by state agencies.
(c) The counsellor shall designate a trained person to:
(1) coordinate the implementation of the policy
adopted under Subsection (a);
(2) serve as a resource for any training needed to
implement the procedures for alternative dispute resolution; and
(3) collect data concerning the effectiveness of those
procedures, as implemented by the office.
Sec. 14A.006. COMPLAINTS. (a) The office shall maintain a
system to promptly and efficiently act on complaints filed with the
office that the office has the authority to resolve. The office
shall maintain information about parties to the complaint, the
subject matter of the complaint, a summary of the results of the
review or investigation of the complaint, and its disposition.
(b) The office shall make information available describing
its procedures for complaint investigation and resolution.
(c) The office shall periodically notify the complaint
parties of the status of the complaint until final disposition.
Sec. 14A.007. TECHNOLOGY POLICY. The counsellor shall
implement a policy requiring the office to use appropriate
technological solutions to improve the office's ability to perform
its functions. The policy must ensure that the public is able to
interact with the office on the Internet.
SUBCHAPTER B. WATER PUBLIC UTILITY COUNSEL
Sec. 14A.021. APPOINTMENT; TERM. (a) The chief executive
of the office is the counsellor.
(b) The counsellor is appointed by the governor with the
advice and consent of the senate.
(c) The appointment of the counsellor shall be made without
regard to the race, color, disability, sex, religion, age, or
national origin of the appointee.
(d) The counsellor serves a two-year term that expires on
February 1 of the final year of the term.
Sec. 14A.022. QUALIFICATIONS. (a) The counsellor must:
(1) be licensed to practice law in this state and a
resident of this state;
(2) have demonstrated a strong commitment to and
involvement in efforts to safeguard the rights of the public; and
(3) possess the knowledge and experience necessary to
practice effectively in utility proceedings.
(b) A person is not eligible for appointment as counsellor
if:
(1) the person or the person's spouse:
(A) is employed by or participates in the
management of a business entity or other organization that is
regulated by or receives funds from the commission;
(B) directly or indirectly owns or controls more
than a 10 percent interest or a pecuniary interest with a value
exceeding $10,000 in:
(i) a business entity or other organization
that is regulated by or receives funds from the commission or the
office; or
(ii) a retail public utility competitor,
retail public utility supplier, or other entity affected by a
commission decision in a manner other than by the setting of rates
for that class of customer;
(C) uses or receives a substantial amount of
tangible goods, services, or funds from the commission or the
office, other than compensation or reimbursement authorized by law
for service as counsellor or for commission membership, attendance,
or expenses; or
(D) notwithstanding Paragraph (B), has an
interest in a mutual fund or retirement fund in which more than 10
percent of the fund's holdings is in a single retail public utility,
retail public utility competitor, or retail public utility supplier
in this state and the person does not disclose this information to
the governor, senate, or other entity, as appropriate; or
(2) the person is not qualified to serve under Section
14A.042.
(c) A person otherwise ineligible because of Subsection
(b)(1)(B) may be appointed and serve as counsellor if the person:
(1) notifies the attorney general and commission that
the person is ineligible because of Subsection (b)(1)(B); and
(2) divests the person or the person's spouse of the
ownership or control:
(A) before beginning service; or
(B) if the person is already serving, within a
reasonable time.
Sec. 14A.023. GROUNDS FOR REMOVAL. (a) It is a ground for
removal from office if the counsellor:
(1) does not have at the time of taking office or
maintain during service as counsellor the qualifications required
by Section 14A.022;
(2) is ineligible for service as counsellor under
Section 14A.022, 14A.042, or 14A.043; or
(3) cannot discharge the counsellor's duties for a
substantial part of the term for which the counsellor is appointed
because of illness or disability.
(b) The validity of an action of the office is not affected
by the fact that the action is taken when a ground for removal of the
counsellor exists.
(c) If an employee has knowledge that a potential ground for
removal of the counsellor exists, the employee shall notify the
next highest ranking employee of the office, other than the
counsellor, who shall then notify the governor and the attorney
general that a potential ground for removal exists.
Sec. 14A.024. PROHIBITED ACTS. (a) The counsellor may not
have a direct or indirect interest in a retail public utility
company regulated under this subtitle, its parent, or its
subsidiary companies, corporations, or cooperatives or a retail
public utility competitor, retail public utility supplier, or other
entity affected in a manner other than by the setting of rates for
that class of customer.
(b) The prohibition under Subsection (a) applies during the
period of the counsellor's service.
SUBCHAPTER C. OFFICE PERSONNEL
Sec. 14A.041. PERSONNEL. The counsellor may employ
lawyers, economists, engineers, consultants, statisticians,
accountants, clerical staff, and other employees as the counsellor
considers necessary to carry out this chapter.
Sec. 14A.042. CONFLICT OF INTEREST. (a) In this section,
"Texas trade association" means a cooperative and voluntarily
joined statewide association of business or professional
competitors in this state designed to assist its members and its
industry or profession in dealing with mutual business or
professional problems and in promoting their common interest.
(b) A person may not serve as counsellor or be an employee of
the office employed in a "bona fide executive, administrative, or
professional capacity," as that phrase is used for purposes of
establishing an exemption to the overtime provisions of the federal
Fair Labor Standards Act of 1938 (29 U.S.C. Section 201 et seq.) if
the person is:
(1) an officer, employee, or paid consultant of a
Texas trade association in the field of retail public utilities; or
(2) the spouse of an officer, manager, or paid
consultant of a Texas trade association in the field of retail
public utilities.
(c) A person may not serve as counsellor or act as the
general counsel to the office if the person is required to register
as a lobbyist under Chapter 305, Government Code, because of the
person's activities for compensation on behalf of a profession
related to the operation of the office.
Sec. 14A.043. PROHIBITION ON EMPLOYMENT OR REPRESENTATION.
(a) A former counsel may not make any communication to or
appearance before the commission or an officer or employee of the
commission before the second anniversary of the date the person
ceases to serve as counsel if the communication or appearance is
made:
(1) on behalf of another person in connection with any
matter on which the person seeks official action; or
(2) with the intent to influence a commission decision
or action, unless acting on the person's own behalf and without
remuneration.
(b) A former counsel may not represent any person or receive
compensation for services rendered on behalf of any person
regarding a matter before the commission before the second
anniversary of the date the person ceases to serve as counsel.
(c) A person commits an offense if the person violates this
section. An offense under this subsection is a Class A misdemeanor.
(d) An employee of the office may not:
(1) be employed by a retail public utility that was in
the scope of the employee's official responsibility while the
employee was associated with the office; or
(2) represent a person before the commission or a
court in a matter:
(A) in which the employee was personally involved
while associated with the office; or
(B) that was within the employee's official
responsibility while the employee was associated with the office.
(e) The prohibition of Subsection (d)(1) applies until the
first anniversary of the date the employee's employment with the
office ceases.
(f) The prohibition of Subsection (d)(2) applies while an
employee of the office is associated with the office and at any time
after.
(g) For purposes of this section, "person" includes a water
cooperative.
Sec. 14A.044. CAREER LADDER PROGRAM; PERFORMANCE
EVALUATIONS; MERIT PAY. (a) The counsellor or the counsellor's
designee shall develop an intra-agency career ladder program that
addresses opportunities for mobility and advancement for office
employees. The program shall require intra-agency postings of each
position concurrently with any public posting.
(b) The counsellor or the counsellor's designee shall
develop a system of annual performance evaluations that are based
on documented employee performance. Merit pay for office employees
must be based on the system established under this subsection.
Sec. 14A.045. EQUAL EMPLOYMENT OPPORTUNITY POLICY
STATEMENT. (a) The counsellor or the counsellor's designee shall
prepare and maintain a written policy statement to ensure
implementation of a program of equal employment opportunity under
which all personnel transactions are made without regard to race,
color, disability, sex, religion, age, or national origin.
(b) The policy statement under Subsection (a) must include:
(1) personnel policies, including policies related to
recruitment, evaluation, selection, appointment, training, and
promotion of personnel, that are in compliance with the
requirements of Chapter 21, Labor Code;
(2) a comprehensive analysis of the office workforce
that meets federal and state guidelines;
(3) procedures by which a determination can be made
about the extent of underuse in the office workforce of all persons
for whom federal or state guidelines encourage a more equitable
balance; and
(4) reasonable methods to appropriately address the
underuse.
(c) A policy statement prepared under Subsection (b) must:
(1) cover an annual period;
(2) be updated at least annually;
(3) be reviewed by the Civil Rights Division of the
Texas Workforce Commission for compliance with Subsection (b)(1);
and
(4) be filed with the governor's office.
(d) The governor's office shall deliver a biennial report to
the legislature based on the information received under Subsection
(c). The report may be made separately or as a part of other
biennial reports to the legislature.
Sec. 14A.046. QUALIFICATIONS AND STANDARDS OF CONDUCT
INFORMATION. The office shall provide to office employees as often
as necessary information regarding their:
(1) qualifications for employment under this chapter;
and
(2) responsibilities under applicable laws relating
to standards of conduct for employees.
SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND REPORTS
Sec. 14A.061. PUBLIC INTEREST INFORMATION. The office
shall prepare information of public interest describing the
functions of the office. The office shall make the information
available to the public and appropriate state agencies.
Sec. 14A.062. PUBLIC PARTICIPATION. (a) The office shall
comply with federal and state laws related to program and facility
accessibility.
(b) The office shall prepare and maintain a written plan
that describes how a person who does not speak English may be
provided reasonable access to the office's programs and services.
Sec. 14A.063. ANNUAL REPORT. The office shall prepare
annually a report on the office's activities during the preceding
year and submit the report to the standing legislative committees
that have jurisdiction over the office, the house appropriations
committee, and the senate finance committee. At a minimum, the
report must include:
(1) a list of the types of activities conducted by the
office and the time spent by the office on each activity;
(2) the number of hours billed by the office for
representing residential or small commercial consumers in
proceedings;
(3) the number of staff positions and the type of work
performed by each position; and
(4) the office's rate of success in representing
residential or small commercial consumers in appealing commission
decisions.
Sec. 14A.064. PUBLIC HEARING. (a) The office annually
shall conduct a public hearing to assist the office in developing a
plan of priorities and to give the public, including residential
and small commercial consumers, an opportunity to comment on the
office's functions and effectiveness.
(b) A public hearing held under this section is not subject
to Chapter 551, Government Code.
(c) The office shall file notice of a public hearing held
under this section with the secretary of state for publication in
the Texas Register.
SECTION 6. Section 49.352(c), Water Code, is amended to
read as follows:
(c) For purposes of this section, a municipality may obtain
single certification in the manner provided by Section 13.255,
except that the municipality may file an application with the Water
Public Utility Commission [of Texas] to grant single certification
immediately after the municipality provides notice of intent to
provide service as required by Section 13.255(b).
SECTION 7. Section 2003.049, Government Code, is amended by
amending Subsection (a) and adding Subsection (a-1) to read as
follows:
(a) The office shall perform contested case hearings for:
(1) the Public Utility Commission of Texas as
prescribed by the Public Utility Regulatory Act of 1995 and other
applicable law; and
(2) the Water Public Utility Commission as prescribed
by Subtitle B, Title 2, Water Code.
(a-1) In this section, "commission" means the Public
Utility Commission of Texas or the Water Public Utility Commission.
SECTION 8. Section 7201.004(b), Special District Local Laws
Code, is amended to read as follows:
(b) This section does not apply to:
(1) rules or regulations concerning potable water
quality standards; or
(2) conflicts relating to service areas or
certificates issued to the corporation or district by the Water
Public Utility Commission or a predecessor agency [of Texas or the
Texas Commission on Environmental Quality].
SECTION 9. Section 7201.005(c), Special District Local Laws
Code, is amended to read as follows:
(c) District boundaries may be modified in accordance with
Chapters 13 and 49, Water Code, except that the boundaries must
include all territory in any area included under a certificate of
convenience and necessity issued by the Water Public Utility
Commission or a predecessor agency [of Texas or the Texas
Commission on Environmental Quality to the district].
SECTION 10. Section 7201.102, Special District Local Laws
Code, is amended to read as follows:
Sec. 7201.102. PROVISION OF SERVICE. The district shall at
all times operate and construct necessary improvements within the
certificated areas established by the Water Public Utility
Commission or a predecessor agency [of Texas or the Texas
Commission on Environmental Quality] to provide uninterrupted,
continuous, and adequate service to existing and future customers
for water, sewer, and contract services.
SECTION 11. Section 7886.0101(4), Special District Local
Laws Code, is amended to read as follows:
(4) "Utility commission" means the Water Public
Utility Commission [of Texas].
SECTION 12. Section 7958.0101(6), Special District Local
Laws Code, is amended to read as follows:
(6) "Utility commission" means the Water Public
Utility Commission [of Texas].
SECTION 13. Section 8281.103, Special District Local Laws
Code, is amended to read as follows:
Sec. 8281.103. LIMITATION ON PROVIDING WATER TO CERTAIN
USERS. Notwithstanding any other provision of this chapter, the
district may not compete with the City of Mabank in providing water
to household users unless the district receives permission from the
Water Public Utility Commission [of Texas], with the consent of
that city.
SECTION 14. Section 8363.106(b), Special District Local
Laws Code, is amended to read as follows:
(b) In relation to a retail public utility that provides
water or sewer service to all or part of the area of the district
under a certificate of public convenience and necessity, the
district may exercise the powers given to a municipality provided
by Section 13.255, Water Code, as if the district were a
municipality that had annexed the area of the district. The Water
Public Utility Commission [of Texas] shall grant single
certification as to the city as provided by Section 13.255(c),
Water Code, in the event that the district applies for the
certification on the city's behalf in the manner provided by
Section 13.255(b), Water Code.
SECTION 15. Section 8363.251(a), Special District Local
Laws Code, is amended to read as follows:
(a) The city may dissolve the district by ordinance after
provision is made for all debts incurred by the district if one or
more of the following does not occur:
(1) on or before the 90th day after the effective date
of the Act enacting this chapter, the city receives one or more
petitions requesting annexation of all territory in the district
remaining in the extraterritorial jurisdiction of the city;
(2) on or before the last day of the ninth month after
the effective date of the Act enacting this chapter, the city adopts
one or more ordinances annexing all territory in the district
remaining in the city's extraterritorial jurisdiction;
(3) on or before the last day of the third year after
the effective date of the Act enacting this chapter, the Water
Public Utility Commission [of Texas] issues an order approving the
sale and transfer of a certificate of public convenience and
necessity authorizing the city to provide retail water service to
territory in the district; or
(4) by the end of the fifth year after the effective
date of the Act enacting this chapter, the district has completed
construction of internal streets and water and sanitary sewer
facilities sufficient to serve at least 100 residential lots in the
district.
SECTION 16. Section 8801.201, Special District Local Laws
Code, is amended to read as follows:
Sec. 8801.201. APPEAL OF SURFACE WATER RATES. (a) A person
who is required to convert to surface water under this chapter and
who purchases that water supply wholesale from a political
subdivision as defined by Section 12.013(b), Water Code, may appeal
to the Water Public Utility Commission [of Texas] the rates the
political subdivision charges to the person. Chapter 12, Water
Code, and rules adopted under that chapter apply to an appeal under
this section.
(b) The Water Public Utility Commission [of Texas] shall
hear the appeal not later than the 180th day after the date the
appeal is filed.
(c) The Water Public Utility Commission [of Texas] shall
issue a final decision on the appeal not later than the 60th day
after the date the hearing ends.
SECTION 17. Section 8803.151(1), Special District Local
Laws Code, is amended to read as follows:
(1) "Commission" means the Water Public Utility
Commission [of Texas].
SECTION 18. Section 8808.151(1), Special District Local
Laws Code, is amended to read as follows:
(1) "Commission" means the Water Public Utility
Commission [of Texas].
SECTION 19. Section 11002.151, Special District Local Laws
Code, is amended to read as follows:
Sec. 11002.151. DEFINITION. In this subchapter, "receiving
entity" means the entity that holds a certificate of convenience
and necessity issued by the Water Public Utility Commission [of
Texas] for the territory included in the district.
SECTION 20. Section 11.002(21), Water Code, is repealed.
SECTION 21. (a) On September 1, 2024, the following are
transferred from the Public Utility Commission of Texas to the
Water Public Utility Commission:
(1) the powers, duties, functions, programs, and
activities of the Public Utility Commission of Texas relating to
the economic regulation of water and sewer service, including the
issuance and transfer of certificates of convenience and necessity,
the determination of rates, and the administration of hearings and
proceedings involving those matters, as provided by this Act;
(2) any obligations and contracts of the Public
Utility Commission of Texas that are directly related to
implementing a power, duty, function, program, or activity
transferred under this Act; and
(3) all property and records in the custody of the
Public Utility Commission of Texas that are related to a power,
duty, function, program, or activity transferred under this Act and
all funds appropriated by the legislature for that power, duty,
function, program, or activity.
(b) The Public Utility Commission of Texas shall continue to
carry out that commission's duties related to the economic
regulation of water and sewer service under the law as it existed
immediately before the effective date of this Act until September
1, 2024, and the former law is continued in effect for that purpose.
(c) The Public Utility Commission of Texas and the Water
Public Utility Commission shall enter into a memorandum of
understanding that:
(1) identifies in detail the applicable powers and
duties that are transferred by this Act;
(2) establishes a plan for the identification and
transfer of the records, personnel, property, and unspent
appropriations of the Public Utility Commission of Texas that are
used for purposes of that commission's powers and duties directly
related to the economic regulation of water and sewer service; and
(3) establishes a plan for the transfer of all pending
applications, hearings, rulemaking proceedings, and orders
relating to the economic regulation of water and sewer service from
the Public Utility Commission of Texas to the Water Public Utility
Commission.
(d) The memorandum of understanding under this section:
(1) is not required to be adopted by rule; and
(2) must be completed by August 1, 2024.
(e) The executive directors of the Public Utility
Commission of Texas and the Water Public Utility Commission may
agree in the memorandum of understanding under this section to
transfer to the Water Public Utility Commission any personnel of
the Public Utility Commission of Texas whose functions
predominantly involve powers, duties, obligations, functions, and
activities related to the economic regulation of water and sewer
service.
(f) On or after September 1, 2023, the Office of Water
Public Utility Counsel may initiate or intervene in a contested
case before the Public Utility Commission of Texas that the office
would be entitled to initiate or intervene in if the case were
before the Water Public Utility Commission, as authorized by
Chapter 14A, Water Code, as added by this Act.
(g) The Public Utility Commission of Texas and the Water
Public Utility Commission shall appoint a transition team to
accomplish the purposes of this section. The transition team may
consult with the Office of Public Utility Counsel and the Office of
Water Public Utility Counsel to accomplish the purposes of this
section.
(h) A rule, form, policy, procedure, or decision of the
Public Utility Commission of Texas related to a power, duty,
function, program, or activity transferred under this Act continues
in effect as a rule, form, policy, procedure, or decision of the
Water Public Utility Commission and remains in effect until amended
or replaced by that agency. Notwithstanding any other law,
beginning September 1, 2023, the Water Public Utility Commission
may propose rules, forms, policies, and procedures related to a
function to be transferred to the Water Public Utility Commission
under this Act.
(i) The Public Utility Commission of Texas and the Water
Public Utility Commission shall adopt rules to implement the
changes in law made by this Act not later than September 1, 2025.
SECTION 22. This Act takes effect September 1, 2023.