By: King H.B. No. 3402
A BILL TO BE ENTITLED
AN ACT
relating to risk mitigation planning and associated liability for
providers of electric service.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 36.064, Utilities Code, is amended by
amending Subsections (a) and (b) and by adding Subsections (c-1)
and (h) to read as follows:
(a) An electric utility may self-insure all or part of:
(1) the utility's potential liability or catastrophic
property loss, including windstorm, fire, wildfire, and explosion
losses, that could not have been reasonably anticipated and
included under operating and maintenance expenses; and
(2) potential damages the utility may be liable for
resulting from personal injury or property damages caused by a
wildfire.
(b) The commission shall approve a self-insurance plan
under this section if the commission finds [that]:
(1) the coverage is in the public interest;
(2) one of the following:
(A) the plan, considering all costs, is a lower
cost alternative to purchasing commercial insurance;
(B) commercial insurance alone is insufficient
to cover potential liability, damages, or catastrophic property
loss; or
(C) the electric utility cannot obtain
commercial insurance for a reasonable premium; and
(3) ratepayers will receive the benefits of the
savings.
(c-1) In approving a self-insurance plan under this
section, the commission shall prioritize the consideration of the
presence and potential extent of wildfire losses, including:
(1) historical data;
(2) actuarial studies and analyses; and
(3) the possibility of the electric utility's exposure
to losses from multiple types of disasters occurring within the
utility's service territory.
(h) Subsection (a)(2) does not authorize the electric
utility to self-insure under this section for damages from a
wildfire event the utility caused intentionally, recklessly, or
with gross negligence.
SECTION 2. Subchapter D, Chapter 38, Utilities Code, is
amended by adding Section 38.080 to read as follows:
Sec. 38.080. WILDFIRE MITIGATION PLAN; AFFIRMATIVE
DEFENSE. (a) In this section:
(1) "Division" means the Texas Division of Emergency
Management.
(2) "First responder" has the meaning assigned by
Section 418.251, Government Code.
(3) "Plan" means a wildfire mitigation plan described
by Subsection (b).
(4) "Wildfire risk area" means an area determined by
the division or an affected electric utility, electric cooperative,
or municipally owned utility, to be at an elevated risk for
wildfire.
(b) An electric utility or an electric cooperative that owns
a transmission or distribution facility in a wildfire risk area
shall file, and a municipally owned utility or an electric utility
that is also a river authority may file, with the commission a
wildfire mitigation plan that includes the following:
(1) a description of each area to which the utility or
cooperative provides transmission or distribution service that is
in a wildfire risk area and the utility's or cooperative's process
for periodically inspecting the utility's or cooperative's
transmission and distribution facilities in those areas;
(2) a detailed plan for vegetation management in the
wildfire risk area;
(3) a detailed operations plan for reducing the
likelihood of wildfire ignition from the utility's or cooperative's
facilities and for responding to a wildfire;
(4) a description of the procedures the utility or
cooperative intends to use to restore the utility's or
cooperative's system during and after a wildfire event, including
contact information for the utility or cooperative that may be used
for coordination with the division and first responders;
(5) the utility's or cooperative's community outreach
and public awareness plan regarding wildfire risks and actual
wildfires affecting the utility's or cooperative's service
territory or system, including a specific communications plan for
responding to a wildfire event; and
(6) any other information the commission may require.
(c) The commission shall issue an order not later than the
60th day after a plan is filed with the commission that:
(1) approves the plan if the commission finds that
approval is in the public interest; or
(2) modifies or rejects the plan as necessary to be
consistent with the public interest.
(d) Subject to Subsection (e), an electric utility,
municipally owned utility, or electric cooperative for which the
commission has approved a plan is not liable for damages resulting
from a wildfire ignited or propagated by the utility's or
cooperative's facilities or actions unless a court of competent
jurisdiction finds that the utility or cooperative intentionally,
recklessly, or with negligence caused the damage.
(e) It is an affirmative defense to liability in a civil
action brought against an electric utility, municipally owned
utility, or electric cooperative for personal injury or property
damages caused by a wildfire ignited or propagated by the utility's
or cooperative's facilities if a court of competent jurisdiction
finds that the utility or cooperative was in material compliance
with relevant measures of its approved plan under this section.
SECTION 3. (a) The Public Utility Commission of Texas shall
adopt any rules as necessary to implement Sections 36.064,
Utilities Code, as amended by this Act, and Section 38.080,
Utilities Code, as added by this Act, not later than the 180th day
after the effective date of this Act.
(b) An electric utility, municipally owned utility or
electric cooperative may file a wildfire mitigation plan, as
authorized by Section 38.080, Utilities Code, as added by this Act
at any time after the effective date of this Act, regardless of
whether the Public Utility Commission of Texas has adopted any
rules described by Subsection (a) before the date of the filing;
provided, however, that such a plan is still subject to review,
modification, approval, or rejection under Section 38.080(c),
Utilities Code, as added by this Act.
SECTION 4. Section 38.080, Utilities Code, as added by this
Act, applies only to a cause of action that accrues on or after the
effective date of this Act.
SECTION 5. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2025.