Bill Text: TX HB1968 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Relating to regulation of gas pipelines; providing penalties.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2011-03-24 - Left pending in committee [HB1968 Detail]
Download: Texas-2011-HB1968-Introduced.html
82R3269 JXC-F | ||
By: Chisum | H.B. No. 1968 |
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relating to regulation of gas pipelines; providing penalties. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 3, Utilities Code, is amended by adding | ||
Subtitle C to read as follows: | ||
SUBTITLE C. GAS PIPELINE REGULATORY ACT | ||
CHAPTER 141. GENERAL PROVISIONS AND OFFICE OF PUBLIC UTILITY | ||
COUNSEL | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 141.001. SHORT TITLE. This subtitle may be cited as | ||
the Gas Pipeline Regulatory Act. | ||
Sec. 141.002. PURPOSE AND FINDINGS. (a) This subtitle is | ||
enacted to protect the public interest inherent in the rates and | ||
services of gas pipelines. The purpose of this subtitle is to | ||
establish a comprehensive and adequate regulatory system for gas | ||
pipelines to assure rates, operations, and services that are just | ||
and reasonable to the consumers and to the pipelines. | ||
(b) Gas pipelines are by definition monopolies in the areas | ||
they serve. As a result, the normal forces of competition that | ||
regulate prices in a free enterprise society do not operate. Public | ||
agencies regulate pipeline rates, operations, and services as a | ||
substitute for competition. | ||
Sec. 141.003. DEFINITIONS. In this subtitle: | ||
(1) "Affected person" means: | ||
(A) a gas pipeline affected by an action of the | ||
railroad commission; | ||
(B) a person whose gas pipeline service or rates | ||
are affected by a proceeding before the railroad commission; or | ||
(C) a person who: | ||
(i) is a competitor of a gas pipeline with | ||
respect to a service performed by the pipeline; or | ||
(ii) wants to enter into competition with a | ||
gas pipeline. | ||
(2) "Affiliate" means: | ||
(A) a person who directly or indirectly owns or | ||
holds at least five percent of the voting securities of a gas | ||
pipeline; | ||
(B) a person in a chain of successive ownership | ||
of at least five percent of the voting securities of a gas pipeline; | ||
(C) a corporation that has at least five percent | ||
of its voting securities owned or controlled, directly or | ||
indirectly, by a gas pipeline; | ||
(D) a corporation that has at least five percent | ||
of its voting securities owned or controlled, directly or | ||
indirectly, by: | ||
(i) a person who directly or indirectly | ||
owns or controls at least five percent of the voting securities of a | ||
gas pipeline; or | ||
(ii) a person in a chain of successive | ||
ownership of at least five percent of the voting securities of a gas | ||
pipeline; | ||
(E) a person who is an officer or director of a | ||
gas pipeline or of a corporation in a chain of successive ownership | ||
of at least five percent of the voting securities of a gas pipeline; | ||
or | ||
(F) a person determined to be an affiliate under | ||
Section 141.004. | ||
(3) "Allocation" means the division among | ||
municipalities or among municipalities and unincorporated areas of | ||
the plant, revenues, expenses, taxes, and reserves of a gas | ||
pipeline used to provide gas pipeline service for a municipality | ||
and unincorporated areas. | ||
(4) "Corporation" means a domestic or foreign | ||
corporation, joint-stock company, or association, and each lessee, | ||
assignee, trustee, receiver, or other successor in interest of the | ||
corporation, company, or association, that has any of the powers or | ||
privileges of a corporation not possessed by an individual or | ||
partnership. The term does not include a municipal corporation, | ||
except as expressly provided by this subtitle. | ||
(5) "Counsellor" means the chief executive of the | ||
Office of Public Utility Counsel. | ||
(6) "Facilities" means all of the plant and equipment | ||
of a gas pipeline and includes the tangible and intangible | ||
property, without limitation, owned, operated, leased, licensed, | ||
used, controlled, or supplied for, by, or in connection with the | ||
business of the gas pipeline. | ||
(7) "Gas pipeline" includes a person or river | ||
authority that owns or operates for compensation in this state | ||
equipment or facilities to transmit or distribute combustible | ||
hydrocarbon natural gas or synthetic natural gas for sale or resale | ||
in a manner not subject to the jurisdiction of the Federal Energy | ||
Regulatory Commission under the Natural Gas Act (15 U.S.C. Section | ||
717 et seq.). The term includes a lessee, trustee, or receiver of a | ||
gas pipeline. The term does not include: | ||
(A) a municipal corporation; | ||
(B) a person or river authority to the extent the | ||
person or river authority: | ||
(i) produces, gathers, transports, or sells | ||
natural gas or synthetic natural gas under Section 121.004 or | ||
121.005; | ||
(ii) distributes or sells liquefied | ||
petroleum gas; or | ||
(iii) transports, delivers, or sells | ||
natural gas for fuel for irrigation wells or any other direct | ||
agricultural use; | ||
(C) a person to the extent the person: | ||
(i) sells natural gas for use as vehicle | ||
fuel; | ||
(ii) sells natural gas to a person who later | ||
sells the natural gas for use as vehicle fuel; or | ||
(iii) owns or operates equipment or | ||
facilities to sell or transport natural gas for ultimate use as | ||
vehicle fuel; | ||
(D) a person not otherwise a gas pipeline who | ||
furnishes gas or gas service only to itself, its employees, or its | ||
tenants as an incident of employment or tenancy, if the gas or gas | ||
service is not resold to or used by others; or | ||
(E) a person excluded from being considered a gas | ||
utility under Section 121.007. | ||
(8) "Order" means all or a part of a final disposition | ||
by the railroad commission in a matter other than rulemaking, | ||
without regard to whether the disposition is affirmative or | ||
negative or injunctive or declaratory. The term includes the | ||
setting of a rate. | ||
(9) "Person" includes an individual, a partnership of | ||
two or more persons having a joint or common interest, a mutual or | ||
cooperative association, a limited liability company, and a | ||
corporation. | ||
(10) "Proceeding" means a hearing, investigation, | ||
inquiry, or other procedure for finding facts or making a decision | ||
under this subtitle. The term includes a denial of relief or | ||
dismissal of a complaint. | ||
(11) "Rate" means: | ||
(A) any compensation, tariff, charge, fare, | ||
toll, rental, or classification that is directly or indirectly | ||
demanded, observed, charged, or collected by a gas pipeline for a | ||
service, product, or commodity described in the definition of "gas | ||
pipeline" in this section; and | ||
(B) a rule, regulation, practice, or contract | ||
affecting the compensation, tariff, charge, fare, toll, rental, or | ||
classification. | ||
(12) "Service" has its broadest and most inclusive | ||
meaning. The term includes any act performed, anything supplied, | ||
and any facilities used or supplied by a gas pipeline in the | ||
performance of the pipeline's duties under this subtitle to its | ||
patrons, employees, other gas pipelines, and the public. The term | ||
also includes the interchange of facilities between two or more gas | ||
pipelines. | ||
(13) "State agency" has the meaning assigned by | ||
Section 572.002, Government Code, to the extent the state agency | ||
must obtain the approval described by Section 31.401(a), Natural | ||
Resources Code. | ||
Sec. 141.004. PERSON DETERMINED TO BE AFFILIATE. (a) The | ||
railroad commission may determine that a person is an affiliate for | ||
purposes of this subtitle if the railroad commission after notice | ||
and hearing finds that the person: | ||
(1) actually exercises substantial influence or | ||
control over the policies and actions of a gas pipeline; | ||
(2) is a person over which a gas pipeline exercises the | ||
control described by Subdivision (1); | ||
(3) is under common control with a gas pipeline; or | ||
(4) actually exercises substantial influence over the | ||
policies and actions of a gas pipeline in conjunction with one or | ||
more persons with whom the person is related by ownership or blood | ||
relationship, or by action in concert, so that together they are | ||
affiliated with the gas pipeline within the meaning of this section | ||
even though neither person may qualify as an affiliate | ||
individually. | ||
(b) For purposes of Subsection (a)(3), "common control with | ||
a gas pipeline" means the direct or indirect possession of the power | ||
to direct or cause the direction of the management and policies of | ||
another, without regard to whether that power is established | ||
through ownership or voting of securities or by any other direct or | ||
indirect means. | ||
Sec. 141.005. ADMINISTRATIVE PROCEDURE. Chapter 2001, | ||
Government Code, applies to a proceeding under this subtitle except | ||
to the extent inconsistent with this subtitle. | ||
Sec. 141.006. CUMULATIVE EFFECT; APPLICATION TO GAS | ||
PIPELINES. (a) This subtitle is cumulative of laws existing on | ||
September 1, 2011, relating to the jurisdiction, power, or | ||
authority of the railroad commission over a gas pipeline, as | ||
defined by this subtitle. This subtitle does not limit the | ||
jurisdiction, power, and authority of the railroad commission over | ||
a gas pipeline. | ||
(b) This subtitle applies to all gas pipelines, including a | ||
gas pipeline that is under the jurisdiction, power, or authority of | ||
the railroad commission under a law other than this subtitle. | ||
(c) Subtitle A does not apply to a gas pipeline as defined by | ||
this subtitle. | ||
Sec. 141.007. LIBERAL CONSTRUCTION. This subtitle shall be | ||
construed liberally to promote the effectiveness and efficiency of | ||
regulation of gas pipelines to the extent that this construction | ||
preserves the validity of this subtitle and its provisions. | ||
Sec. 141.008. CONSTRUCTION WITH FEDERAL AUTHORITY. This | ||
subtitle shall be construed to apply so as not to conflict with any | ||
authority of the United States. | ||
[Sections 141.009-141.050 reserved for expansion] | ||
SUBCHAPTER B. OFFICE OF PUBLIC UTILITY COUNSEL | ||
Sec. 141.051. OFFICE OF PUBLIC UTILITY COUNSEL. The | ||
independent office of public utility counsel represents the | ||
interests of residential consumers. | ||
Sec. 141.052. OFFICE POWERS AND DUTIES. (a) The office: | ||
(1) may appear or intervene as a party or otherwise | ||
represent residential consumers, as a class, in proceedings before | ||
the railroad commission under this subtitle only at the written | ||
request of an affected municipality's governing body; | ||
(2) may initiate or intervene as a matter of right or | ||
otherwise appear in a judicial proceeding that involves an action | ||
taken by the railroad commission under this subtitle in a | ||
proceeding in which the office was a party; | ||
(3) is entitled to the same access as a party, other | ||
than railroad commission staff, to records gathered by the railroad | ||
commission under Section 142.203; | ||
(4) is entitled to discovery of any nonprivileged | ||
matter that is relevant to the subject matter of a proceeding or | ||
petition before the railroad commission; | ||
(5) may represent an individual residential consumer | ||
with respect to the consumer's disputed complaint concerning gas | ||
pipeline services that is unresolved before the railroad | ||
commission; and | ||
(6) may recommend legislation to the legislature that | ||
the office determines would positively affect the interests of | ||
residential consumers. | ||
(b) The office may represent only as a class the residential | ||
consumers of a municipality that makes a request under Subsection | ||
(a)(1). | ||
(c) This section does not limit the authority of the | ||
railroad commission to represent residential consumers. | ||
(d) The appearance of the counsellor in a proceeding does | ||
not preclude the appearance of other parties on behalf of | ||
residential consumers. The counsellor may not be grouped with any | ||
other party. | ||
Sec. 141.053. PROHIBITED ACTS. (a) The counsellor may | ||
not: | ||
(1) have a direct or indirect interest in a gas | ||
pipeline regulated under this subtitle; or | ||
(2) provide legal services directly or indirectly to | ||
or be employed in any capacity by a gas pipeline regulated under | ||
this subtitle, its parent, or its subsidiary companies, | ||
corporations, or cooperatives. | ||
(b) The prohibition under Subsection (a) applies during the | ||
period of the counsellor's service and until the first anniversary | ||
of the date the counsellor ceases to serve as counsellor. | ||
(c) This section does not prohibit a person from otherwise | ||
engaging in the private practice of law after the person ceases to | ||
serve as counsellor. | ||
Sec. 141.054. PERSONNEL. (a) The counsellor may employ | ||
lawyers, economists, engineers, consultants, statisticians, | ||
accountants, clerical staff, and other employees as the counsellor | ||
determines necessary to carry out this subchapter. | ||
(b) An employee receives compensation as prescribed by the | ||
legislature from the assessment imposed by Subchapter A, Chapter | ||
16. | ||
CHAPTER 142. JURISDICTION AND POWERS OF RAILROAD COMMISSION | ||
SUBCHAPTER A. GENERAL POWERS OF RAILROAD COMMISSION | ||
Sec. 142.001. RAILROAD COMMISSION JURISDICTION. The | ||
railroad commission has exclusive original jurisdiction over the | ||
rates and services of a gas pipeline that transmits, transports, | ||
delivers, or sells natural gas or synthetic natural gas to a gas | ||
utility that distributes the gas to the public. | ||
Sec. 142.002. RAILROAD COMMISSION POWERS RELATING TO | ||
REPORTS. The railroad commission may: | ||
(1) require a gas pipeline to report to the railroad | ||
commission information relating to the gas pipeline and an | ||
affiliate inside or outside this state as useful in administering | ||
this subtitle; | ||
(2) establish the form for a report; | ||
(3) determine the time for a report and the frequency | ||
with which the report is to be made; | ||
(4) require that a report be made under oath; | ||
(5) require the filing with the railroad commission of | ||
a copy of: | ||
(A) a contract or arrangement between a gas | ||
pipeline and an affiliate; | ||
(B) a report filed with a federal agency or a | ||
governmental agency or body of another state; and | ||
(C) an annual report that shows each payment of | ||
compensation, other than salary or wages subject to federal income | ||
tax withholding: | ||
(i) to residents of this state; | ||
(ii) with respect to legal, administrative, | ||
or legislative matters in this state; or | ||
(iii) for representation before the | ||
legislature of this state or any governmental agency or body; and | ||
(6) require that a contract or arrangement described | ||
by Subdivision (5)(A) that is not in writing be reduced to writing | ||
and filed with the railroad commission. | ||
Sec. 142.003. REPORT OF SUBSTANTIAL INTEREST. The railroad | ||
commission may require disclosure of the identity and respective | ||
interests of each owner of at least one percent of the voting | ||
securities of a gas pipeline or its affiliate. | ||
Sec. 142.004. ADMINISTRATIVE HEARINGS IN CONTESTED CASES. | ||
(a) The railroad commission by rule shall provide for | ||
administrative hearings in contested cases to be conducted by one | ||
or more members of the railroad commission, by railroad commission | ||
hearings examiners, or by the utility division of the State Office | ||
of Administrative Hearings. The rules must provide for a railroad | ||
commission hearings examiner or the utility division of the State | ||
Office of Administrative Hearings to conduct each hearing in a | ||
contested case that is not conducted by one or more members of the | ||
railroad commission. A hearing must be conducted in accordance | ||
with the rules and procedures adopted by the railroad commission. | ||
(b) The railroad commission may delegate to a railroad | ||
commission hearings examiner or to the utility division of the | ||
State Office of Administrative Hearings the authority to make a | ||
final decision and to issue findings of fact, conclusions of law, | ||
and other necessary orders in a proceeding in which there is not a | ||
contested issue of fact or law. | ||
(c) The railroad commission by rule shall define the | ||
procedures by which it delegates final decision-making authority | ||
under Subsection (b) to a railroad commission hearings examiner or | ||
to the utility division of the State Office of Administrative | ||
Hearings. | ||
(d) For purposes of judicial review, the final decision of a | ||
railroad commission hearings examiner or an administrative law | ||
judge of the State Office of Administrative Hearings in a matter | ||
delegated under Subsection (b) has the same effect as a final | ||
decision of the railroad commission unless a member of the railroad | ||
commission requests formal review of the decision. | ||
(e) The State Office of Administrative Hearings shall | ||
charge the railroad commission a fixed annual rate for hearings | ||
conducted by the office under this section only if the legislature | ||
appropriates money for that purpose. If the legislature does not | ||
appropriate money for the payment of a fixed annual rate under this | ||
section, the State Office of Administrative Hearings shall charge | ||
the railroad commission an hourly rate of not more than $90 per hour | ||
for hearings conducted by the office under this section. | ||
[Sections 142.005-142.050 reserved for expansion] | ||
SUBCHAPTER B. RESTRICTIONS ON CERTAIN TRANSACTIONS | ||
Sec. 142.051. REPORT OF CERTAIN TRANSACTIONS; RAILROAD | ||
COMMISSION CONSIDERATION. (a) Not later than the 60th day after | ||
the date the transaction takes effect, a gas pipeline shall report | ||
to the railroad commission: | ||
(1) a sale, acquisition, or lease of a plant as an | ||
operating unit or system in this state for a total consideration of | ||
more than $1 million; or | ||
(2) a merger or consolidation with another gas | ||
pipeline operating in this state. | ||
(b) On the filing of a report with the railroad commission, | ||
the railroad commission shall investigate the transaction | ||
described by Subsection (a), with or without a public hearing, to | ||
determine whether the action is consistent with the public | ||
interest. In reaching its determination, the railroad commission | ||
shall consider the reasonable value of the property, facilities, or | ||
securities to be acquired, disposed of, merged, or consolidated. | ||
(c) If the railroad commission finds that a transaction is | ||
not in the public interest, the railroad commission shall take the | ||
effect of the transaction into consideration in ratemaking | ||
proceedings and disallow the effect of the transaction if the | ||
transaction will unreasonably affect rates or service. | ||
(d) This section does not apply to: | ||
(1) the purchase of a unit of property for | ||
replacement; or | ||
(2) an addition to the facilities of a gas pipeline by | ||
construction. | ||
Sec. 142.052. REPORT OF PURCHASE OF VOTING STOCK IN GAS | ||
PIPELINE. A gas pipeline may not purchase voting stock in another | ||
gas pipeline doing business in this state unless the pipeline | ||
reports the purchase to the railroad commission. | ||
Sec. 142.053. REPORT OF LOAN TO STOCKHOLDERS. A gas | ||
pipeline may not loan money, stocks, bonds, notes, or other | ||
evidence of indebtedness to a person who directly or indirectly | ||
owns or holds any stock of the gas pipeline unless the gas pipeline | ||
reports the transaction to the railroad commission within a | ||
reasonable time. | ||
[Sections 142.054-142.100 reserved for expansion] | ||
SUBCHAPTER C. RECORDS | ||
Sec. 142.101. RECORDS OF GAS PIPELINE. (a) Each gas | ||
pipeline shall keep and provide to the railroad commission, in the | ||
manner and form prescribed by the railroad commission, uniform | ||
accounts of all business transacted by the gas pipeline. | ||
(b) The railroad commission may prescribe the form of books, | ||
accounts, records, and memoranda to be kept by a gas pipeline, | ||
including: | ||
(1) the books, accounts, records, and memoranda of: | ||
(A) the provision of and capacity for service; | ||
and | ||
(B) the receipt and expenditure of money; and | ||
(2) any other form, record, and memorandum that the | ||
railroad commission considers necessary to carry out this subtitle. | ||
(c) For a gas pipeline subject to regulation by a federal | ||
regulatory agency, compliance with the system of accounts | ||
prescribed for the particular class of pipelines by the federal | ||
agency may be considered sufficient compliance with the system | ||
prescribed by the railroad commission. The railroad commission may | ||
prescribe the form of books, accounts, records, and memoranda | ||
covering information in addition to that required by the federal | ||
agency. The system of accounts and the form of books, accounts, | ||
records, and memoranda prescribed by the railroad commission for a | ||
gas pipeline or class of pipelines may not be inconsistent with the | ||
systems and forms established by a federal agency for that gas | ||
pipeline or class of pipelines. | ||
(d) Each gas pipeline shall: | ||
(1) keep and provide its books, accounts, records, and | ||
memoranda accurately and faithfully in the manner and form | ||
prescribed by the railroad commission; and | ||
(2) comply with the directions of the railroad | ||
commission relating to the books, accounts, records, and memoranda. | ||
Sec. 142.102. MAINTENANCE OF OFFICE AND RECORDS IN THIS | ||
STATE. (a) Each gas pipeline shall maintain an office in this | ||
state in a county in which some part of the pipeline's property is | ||
located. The gas pipeline shall keep in this office all books, | ||
accounts, records, and memoranda required by the railroad | ||
commission to be kept in this state. | ||
(b) A book, account, record, or memorandum required by the | ||
railroad commission to be kept in this state may not be removed from | ||
this state except as prescribed by the railroad commission. | ||
Sec. 142.103. COMMUNICATIONS WITH RAILROAD COMMISSION. | ||
(a) The railroad commission shall adopt rules governing | ||
communications with the railroad commission or a member or employee | ||
of the railroad commission by: | ||
(1) a gas pipeline; | ||
(2) an affiliate; or | ||
(3) a representative of a gas pipeline or affiliate. | ||
(b) A record of a communication must contain: | ||
(1) the name of the person contacting the railroad | ||
commission or member or employee of the railroad commission; | ||
(2) the name of the business entity represented; | ||
(3) a brief description of the subject matter of the | ||
communication; and | ||
(4) the action, if any, requested by the gas pipeline, | ||
affiliate, or representative. | ||
(c) Records compiled under Subsection (b) shall be | ||
available to the public monthly. | ||
Sec. 142.104. JURISDICTION OVER AFFILIATE. The railroad | ||
commission has jurisdiction over an affiliate that has a | ||
transaction with a gas pipeline under the railroad commission's | ||
jurisdiction to the extent of access to an account or a record of | ||
the affiliate relating to the transaction, including an account or | ||
a record of joint or general expenses, any portion of which may be | ||
applicable to the transaction. | ||
[Sections 142.105-142.150 reserved for expansion] | ||
SUBCHAPTER D. REQUIRED REPORTS AND FILINGS | ||
Sec. 142.151. SCHEDULE FILINGS. (a) A gas pipeline shall | ||
file with the railroad commission schedules showing all rates that | ||
are: | ||
(1) subject to the railroad commission's original | ||
jurisdiction; and | ||
(2) in effect for a gas pipeline service, product, or | ||
commodity offered by the gas pipeline. | ||
(b) The gas pipeline shall file as a part of the schedules | ||
required under Subsection (a) each rule or regulation that relates | ||
to or affects: | ||
(1) a rate of the gas pipeline; or | ||
(2) a gas pipeline service, product, or commodity | ||
furnished by the gas pipeline. | ||
Sec. 142.152. DEPRECIATION ACCOUNT. The railroad | ||
commission shall require each gas pipeline to carry a proper and | ||
adequate depreciation account in accordance with: | ||
(1) the rates and methods prescribed by the railroad | ||
commission under Section 144.054; and | ||
(2) any other rule the railroad commission adopts. | ||
Sec. 142.153. ACCOUNTS OF PROFITS AND LOSSES. A gas | ||
pipeline shall keep separate accounts showing profits or losses | ||
from the sale or lease of merchandise, including an appliance, a | ||
fixture, or equipment. | ||
Sec. 142.154. REPORT OF CERTAIN EXPENSES. The railroad | ||
commission may require a gas pipeline to annually report the | ||
pipeline's expenditures for: | ||
(1) business gifts and entertainment; and | ||
(2) advertising or public relations, including | ||
expenditures for institutional and consumption-inducing purposes. | ||
[Sections 142.155-142.200 reserved for expansion] | ||
SUBCHAPTER E. AUDITS AND INSPECTIONS | ||
Sec. 142.201. INQUIRY INTO MANAGEMENT AND AFFAIRS. The | ||
railroad commission may inquire into the management and affairs of | ||
each gas pipeline and shall keep itself informed as to the manner | ||
and method in which each gas pipeline is managed and its affairs are | ||
conducted. | ||
Sec. 142.202. AUDIT OF ACCOUNTS. The railroad commission | ||
may require the examination and audit of the accounts of a gas | ||
pipeline. | ||
Sec. 142.203. INSPECTION. At a reasonable time for a | ||
reasonable purpose, the railroad commission and, to the extent | ||
authorized by the railroad commission, its counsel, agent, or | ||
employee may: | ||
(1) inspect and obtain copies of the papers, books, | ||
accounts, documents, and other business records of a gas pipeline | ||
within its jurisdiction; and | ||
(2) inspect the plant, equipment, and other property | ||
of a gas pipeline within its jurisdiction. | ||
Sec. 142.204. EXAMINATIONS UNDER OATH. In connection with | ||
an inspection taken under Section 142.203, the railroad commission | ||
may: | ||
(1) examine under oath an officer, agent, or employee | ||
of a gas pipeline; or | ||
(2) authorize the person conducting the action to make | ||
the examination under oath. | ||
Sec. 142.205. ENTERING PREMISES OF GAS PIPELINE. (a) A | ||
member, agent, or employee of the railroad commission may enter the | ||
premises occupied by a gas pipeline to conduct an inspection, | ||
examination, or test or to exercise any other authority provided by | ||
this subtitle. | ||
(b) A member, agent, or employee of the railroad commission | ||
may act under this section only during reasonable hours and after | ||
reasonable notice to the gas pipeline. | ||
(c) A gas pipeline is entitled to be represented when an | ||
inspection, examination, or test is conducted on its premises. The | ||
gas pipeline is entitled to a reasonable time to secure a | ||
representative before the inspection, examination, or test begins. | ||
Sec. 142.206. PRODUCTION OF OUT-OF-STATE RECORDS. (a) The | ||
railroad commission may require, by order or subpoena served on a | ||
gas pipeline, the production, at the time and place in this state | ||
that the railroad commission designates, of any books, accounts, | ||
papers, or records kept by that gas pipeline outside this state or, | ||
if ordered by the railroad commission, verified copies of the | ||
books, accounts, papers, or records. | ||
(b) A gas pipeline that fails or refuses to comply with an | ||
order or subpoena under this section violates this subtitle. | ||
[Sections 142.207-142.250 reserved for expansion] | ||
SUBCHAPTER F. GENERAL PROVISIONS RELATING TO PROCEEDINGS BEFORE | ||
RAILROAD COMMISSION | ||
Sec. 142.251. RECORD OF PROCEEDING. The railroad | ||
commission shall keep a record of each proceeding before the | ||
railroad commission under this subtitle. | ||
Sec. 142.252. RIGHT TO BE HEARD. Each party to a proceeding | ||
before the railroad commission is entitled to be heard by attorney | ||
or in person. | ||
CHAPTER 143. JURISDICTION AND POWERS OF MUNICIPALITY | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 143.001. FRANCHISES. (a) This subtitle does not | ||
restrict the rights and powers of a municipality to grant or refuse | ||
a franchise to use the streets and alleys in the municipality or to | ||
make a statutory charge for that use. | ||
(b) A municipality that performs a regulatory function | ||
under this subtitle may make each charge that is authorized by: | ||
(1) this subtitle; or | ||
(2) the applicable franchise agreement. | ||
(c) A franchise agreement may not limit or interfere with a | ||
power conferred on the railroad commission by this subtitle. | ||
[Sections 143.002-143.020 reserved for expansion] | ||
SUBCHAPTER B. RATE DETERMINATION | ||
Sec. 143.021. RATE ASSISTANCE AND COST REIMBURSEMENT. | ||
(a) The governing body of a municipality participating in a | ||
ratemaking proceeding may engage rate consultants, accountants, | ||
auditors, attorneys, and engineers to: | ||
(1) conduct investigations, present evidence, and | ||
advise and represent the governing body; and | ||
(2) assist the governing body with litigation or a gas | ||
pipeline ratemaking proceeding before the railroad commission or | ||
court. | ||
(b) The gas pipeline in the ratemaking proceeding shall | ||
reimburse the governing body of the municipality for the reasonable | ||
cost of the services of a person engaged under Subsection (a) to the | ||
extent the railroad commission determines reasonable. | ||
Sec. 143.022. MUNICIPAL STANDING. (a) A municipality has | ||
standing in each case before the railroad commission that relates | ||
to a gas pipeline's rates and services in the municipality. | ||
(b) A municipality's standing is subject to the right of the | ||
railroad commission to consolidate that municipality with another | ||
party on an issue of common interest. | ||
Sec. 143.023. JUDICIAL REVIEW. A municipality is entitled | ||
to judicial review of a railroad commission order relating to a gas | ||
pipeline's rates and services in a municipality as provided by | ||
Section 145.001. | ||
CHAPTER 144. RATES AND SERVICES | ||
SUBCHAPTER A. GENERAL PROVISIONS | ||
Sec. 144.001. AUTHORIZATION TO ESTABLISH AND REGULATE | ||
RATES. (a) The railroad commission is vested with all the | ||
authority and power of this state to ensure compliance with the | ||
obligations of gas pipelines in this subtitle. | ||
(b) The railroad commission may establish and regulate | ||
rates of a gas pipeline and may adopt rules for determining: | ||
(1) the classification of customers and services; and | ||
(2) the applicability of rates. | ||
(c) A rule or order of the railroad commission may not | ||
conflict with a ruling of a federal regulatory body. | ||
Sec. 144.002. COMPLIANCE WITH SUBTITLE. A gas pipeline may | ||
not: | ||
(1) charge, collect, or receive a rate for pipeline | ||
service except as provided by this subtitle; or | ||
(2) impose a rule or regulation except as provided by | ||
this subtitle. | ||
Sec. 144.003. JUST AND REASONABLE RATES. (a) The railroad | ||
commission shall ensure that each rate a gas pipeline or two or more | ||
gas pipelines jointly make, demand, or receive is just and | ||
reasonable. A rate may not be unreasonably preferential, | ||
prejudicial, or discriminatory but must be sufficient, equitable, | ||
and consistent in application to each class of consumer. In | ||
establishing a gas pipeline's rates, the railroad commission may | ||
treat as a single class two or more municipalities that a gas | ||
pipeline serves if the railroad commission considers that treatment | ||
to be appropriate. | ||
(b) A rate for a pipeline-to-pipeline transaction or for a | ||
transportation, industrial, or similar large volume contract | ||
customer is considered to be just and reasonable and otherwise to | ||
comply with this section and shall be approved by the railroad | ||
commission if: | ||
(1) neither the gas pipeline nor the customer had an | ||
unfair advantage during the negotiations; | ||
(2) the rate is substantially the same as the rate | ||
between the gas pipeline and at least two of those customers under | ||
the same or similar conditions of service; or | ||
(3) competition does or did exist with another gas | ||
pipeline, another supplier of natural gas, or a supplier of an | ||
alternative form of energy. | ||
(c) Subsection (b) does not apply: | ||
(1) if a complaint is filed with the railroad | ||
commission by a transmission pipeline purchaser of gas sold or | ||
transported under the pipeline-to-pipeline or transportation rate; | ||
or | ||
(2) to a direct sale for resale to a gas distribution | ||
utility at a city gate. | ||
(d) The reasonableness of gas purchase costs included in a | ||
city gate rate proposed to be charged for a sale for resale to a gas | ||
distribution utility at a city gate may be reviewed at a city gate | ||
rate proceeding even though the costs have been previously approved | ||
as a rate for other parties under Subsection (b). | ||
(e) Subsection (b)(1) does not apply to a rate charged or | ||
offered to be charged to an affiliated utility. | ||
Sec. 144.004. UNREASONABLE PREFERENCE OR PREJUDICE | ||
PROHIBITED. A gas pipeline may not: | ||
(1) grant an unreasonable preference or advantage | ||
concerning rates or services to a person in a classification; | ||
(2) subject a person in a classification to an | ||
unreasonable prejudice or disadvantage concerning rates or | ||
services; or | ||
(3) establish or maintain an unreasonable difference | ||
concerning rates of services between localities or between classes | ||
of service. | ||
Sec. 144.005. EQUALITY OF RATES AND SERVICES. (a) A gas | ||
pipeline may not directly or indirectly charge, demand, collect, or | ||
receive from a person a greater or lesser compensation for a service | ||
provided or to be provided by the pipeline than the compensation | ||
prescribed by the applicable schedule of rates filed under Section | ||
142.151. | ||
(b) A person may not knowingly receive or accept a service | ||
from a gas pipeline for a compensation greater or less than the | ||
compensation prescribed by the schedule of rates filed under | ||
Section 142.151. A rate charged and collected by a gas pipeline on | ||
September 1, 2011, may be continued until schedules are filed. | ||
(c) After notice and hearing, the railroad commission may, | ||
in the public interest, order a gas pipeline to refund with interest | ||
compensation received in violation of this section. | ||
(d) This subtitle does not prevent a cooperative | ||
corporation from returning to its members net earnings resulting | ||
from its operations in proportion to the members' purchases from or | ||
through the corporation. | ||
Sec. 144.006. DISCRIMINATION AND RESTRICTION ON | ||
COMPETITION. A gas pipeline may not: | ||
(1) discriminate against a person who sells or leases | ||
equipment or performs services in competition with the gas | ||
pipeline; or | ||
(2) engage in a practice that tends to restrict or | ||
impair that competition. | ||
Sec. 144.007. BURDEN OF PROOF. In a proceeding involving a | ||
proposed rate change, the gas pipeline has the burden of proving | ||
that: | ||
(1) the rate change is just and reasonable, if the | ||
pipeline proposes the change; or | ||
(2) an existing rate is just and reasonable, if the | ||
proposal is to reduce the rate. | ||
[Sections 144.008-144.050 reserved for expansion] | ||
SUBCHAPTER B. COMPUTATION OF RATES | ||
Sec. 144.051. ESTABLISHING OVERALL REVENUES. In | ||
establishing a gas pipeline's rates, the railroad commission shall | ||
establish the gas pipeline's overall revenues at an amount that | ||
will permit the gas pipeline a reasonable opportunity to earn a | ||
reasonable return on the gas pipeline's invested capital used and | ||
useful in providing service to the public in excess of its | ||
reasonable and necessary operating expenses. | ||
Sec. 144.052. ESTABLISHING FAIR RATE OF RETURN. The | ||
railroad commission may not establish a rate that yields more than a | ||
fair return on the adjusted value of the invested capital used and | ||
useful in providing service to the public. | ||
Sec. 144.053. COMPONENTS OF ADJUSTED VALUE OF INVESTED | ||
CAPITAL. (a) In this section, "original cost" means the actual | ||
money cost or the actual money value of consideration paid other | ||
than money. | ||
(b) Gas pipeline rates shall be based on the adjusted value | ||
of invested capital used and useful to the pipeline in providing | ||
service and that adjusted value shall be computed on the basis of a | ||
reasonable balance between: | ||
(1) original cost, less depreciation; and | ||
(2) current cost, less an adjustment for present age | ||
and condition. | ||
(c) The railroad commission may determine a reasonable | ||
balance that reflects: | ||
(1) not less than 60 percent nor more than 75 percent | ||
of the original cost of the property at the time the property was | ||
dedicated to public use, whether by the gas pipeline that is the | ||
present owner or by a predecessor, less depreciation; and | ||
(2) not less than 25 percent nor more than 40 percent | ||
of the current cost less an adjustment for present age and | ||
condition. | ||
(d) In determining a reasonable balance, the railroad | ||
commission may consider inflation, deflation, quality of service | ||
being provided, growth rate of the service area, and need for the | ||
gas pipeline to attract new capital. | ||
(e) Construction work in progress, at cost as recorded on | ||
the gas pipeline's books, may be included as part of the adjusted | ||
value of invested capital used by and useful to the pipeline in | ||
providing service, as necessary to the financial integrity of the | ||
pipeline. | ||
(f) Costs of facilities, revenues, expenses, taxes, and | ||
reserves shall be separated or allocated as prescribed by the | ||
railroad commission. | ||
Sec. 144.054. DEPRECIATION, AMORTIZATION, AND DEPLETION. | ||
(a) The railroad commission shall establish proper and adequate | ||
rates and methods of depreciation, amortization, or depletion for | ||
each class of property of a gas pipeline. | ||
(b) The rates and methods established under this section and | ||
the depreciation account required under Section 142.152 shall be | ||
used uniformly and consistently throughout rate-setting and appeal | ||
proceedings under this subtitle. | ||
Sec. 144.055. NET INCOME; ALLOWABLE EXPENSES. (a) Net | ||
income shall be used to establish just and reasonable rates. For | ||
that purpose, "net income" means the total revenues of the gas | ||
pipeline from gas pipeline service less all reasonable and | ||
necessary expenses related to that gas pipeline service. The | ||
railroad commission shall determine those revenues and expenses in | ||
a manner consistent with this subchapter. | ||
(b) In establishing a gas pipeline's rates, the railroad | ||
commission may not allow a gas pipeline's payment to an affiliate | ||
for the cost of a service, property, right, or other item or for an | ||
interest expense to be included as capital cost or as expense | ||
related to gas pipeline service except to the extent that the | ||
railroad commission finds the payment is reasonable and necessary | ||
for each item or class of items as determined by the railroad | ||
commission. That finding must include: | ||
(1) a specific finding of the reasonableness and | ||
necessity of each item or class of items allowed; and | ||
(2) a finding that the price to the gas pipeline is not | ||
higher than the prices charged by the supplying affiliate to its | ||
other affiliates or divisions or to a nonaffiliated person for the | ||
same item or class of items. | ||
(c) If an expense is allowed to be included in gas pipeline | ||
rates, or an investment is included in the gas pipeline rate base, | ||
the related income tax deduction or benefit shall be included in the | ||
computation of income tax expense to reduce the rates. If an | ||
expense is disallowed or not included in gas pipeline rates, or an | ||
investment is not included in the gas pipeline rate base, the | ||
related income tax deduction or benefit may not be included in the | ||
computation of income tax expense to reduce the rates. The income | ||
tax expense shall be computed using the statutory income tax rates. | ||
(d) The railroad commission may adopt reasonable rules | ||
complying with this section to include and exclude certain expenses | ||
in computing the rates to be established. | ||
(e) This section is not intended to increase gas pipeline | ||
rates to the customer not caused by gas pipeline service. Gas | ||
pipeline rates may include only expenses caused by gas pipeline | ||
service. | ||
Sec. 144.056. TREATMENT OF CERTAIN TAX BENEFITS. (a) In | ||
determining the allocation of tax savings derived from liberalized | ||
depreciation and amortization, the investment tax credit, or the | ||
application of similar methods, the railroad commission shall: | ||
(1) balance equitably the interests of present and | ||
future customers; and | ||
(2) apportion accordingly the benefits between | ||
consumers and the gas pipeline. | ||
(b) If a gas pipeline retains a portion of the investment | ||
tax credit, that portion shall be deducted from the original cost of | ||
the facilities or other addition to the rate base to which the | ||
credit applied to the extent allowed by the Internal Revenue Code. | ||
Sec. 144.057. CONSIDERATION OF CERTAIN EXPENSES. (a) In | ||
establishing a gas pipeline's rates, the railroad commission may | ||
not allow as a cost or expense an expenditure: | ||
(1) described by Section 142.154 that the railroad | ||
commission determines to be not in the public interest; or | ||
(2) for legislative advocacy. | ||
(b) The railroad commission may allow as a cost or expense | ||
reasonable charitable or civic contributions not to exceed the | ||
amount approved by the railroad commission. | ||
Sec. 144.058. CONSIDERATION OF PROFIT OR LOSS FROM SALE OR | ||
LEASE OF MERCHANDISE. In establishing a gas pipeline's rates, the | ||
railroad commission may not consider a profit or loss that results | ||
from the sale or lease of merchandise, including appliances, | ||
fixtures, or equipment, to the extent that merchandise is not | ||
integral to providing pipeline service. | ||
[Sections 144.059-144.100 reserved for expansion] | ||
SUBCHAPTER C. RATE CHANGES PROPOSED BY PIPELINE | ||
Sec. 144.101. DEFINITION. In this subchapter, "major | ||
change" means an increase in rates that would increase the | ||
aggregate revenues of the gas pipeline more than the greater of | ||
$100,000 or 2-1/2 percent. The term does not include an increase in | ||
rates that the railroad commission allows to go into effect or the | ||
gas pipeline makes under an order of the railroad commission after | ||
hearings held with public notice. | ||
Sec. 144.102. STATEMENT OF INTENT TO INCREASE RATES. | ||
(a) A gas pipeline may not increase its rates unless the gas | ||
pipeline files a statement of its intent with the railroad | ||
commission at least 35 days before the effective date of the | ||
proposed increase. | ||
(b) The gas pipeline shall also mail or deliver a copy of the | ||
statement of intent to the appropriate officer of each affected | ||
municipality. | ||
(c) The statement of intent must include: | ||
(1) proposed revisions of tariffs and schedules; and | ||
(2) a detailed statement of: | ||
(A) each proposed increase; | ||
(B) the effect the proposed increase is expected | ||
to have on the revenues of the gas pipeline; | ||
(C) each class and number of utility consumers | ||
affected; and | ||
(D) any other information required by the | ||
railroad commission's rules and regulations. | ||
Sec. 144.103. NOTICE OF INTENT TO INCREASE RATES. (a) The | ||
gas pipeline shall: | ||
(1) publish, in conspicuous form, notice to the public | ||
of the proposed rate increase once each week for four successive | ||
weeks in a newspaper having general circulation in each county | ||
containing territory affected by the proposed increase; and | ||
(2) provide notice of the proposed rate increase to | ||
any other affected person as required by the railroad commission's | ||
rules. | ||
(b) Instead of publishing newspaper notice, a gas pipeline | ||
may provide notice to the public in an area outside the affected | ||
municipality or in a municipality with a population of less than | ||
2,500 by: | ||
(1) mailing the notice by United States mail, postage | ||
prepaid, to the billing address of each directly affected customer; | ||
or | ||
(2) including the notice, in conspicuous form, in the | ||
bill of each directly affected customer. | ||
Sec. 144.104. EARLY EFFECTIVE DATE OF RATE INCREASE. | ||
(a) For good cause shown, the railroad commission may allow a rate | ||
increase, other than a major change, to take effect: | ||
(1) before the end of the 35-day period prescribed by | ||
Section 144.102; and | ||
(2) under conditions the railroad commission | ||
prescribes, subject to suspension as provided by this subchapter. | ||
(b) The gas pipeline shall immediately revise its schedules | ||
to include the early increase. | ||
Sec. 144.105. DETERMINATION OF PROPRIETY OF RATE CHANGE; | ||
HEARING. (a) If a schedule modifying or increasing rates is filed | ||
with the railroad commission, the railroad commission shall, on | ||
complaint by an affected person, or may, on its own motion, not | ||
later than the 30th day after the effective date of the increase, | ||
enter on a hearing to determine the propriety of the increase. | ||
(b) The railroad commission shall hold a hearing in every | ||
case in which the increase constitutes a major change. The railroad | ||
commission may, however, use an informal proceeding if the railroad | ||
commission does not receive a complaint before the expiration of 45 | ||
days after the date notice of the increase is filed. | ||
(c) The railroad commission shall give reasonable notice of | ||
the hearing, including notice to the governing body of each | ||
affected municipality and county. The gas pipeline is not required | ||
to provide a formal answer or file any other formal pleading in | ||
response to the notice, and the absence of an answer does not affect | ||
an order for a hearing. | ||
Sec. 144.106. PREFERENCE TO HEARING. The railroad | ||
commission shall: | ||
(1) give preference to the hearing under this | ||
subchapter and to deciding questions arising under this subchapter | ||
over any other question pending before it; and | ||
(2) decide the questions as quickly as possible. | ||
Sec. 144.107. RATE SUSPENSION; DEADLINE. (a) Pending the | ||
hearing and a decision, the railroad commission may suspend the | ||
operation of the schedule for not longer than 150 days after the | ||
date the schedule would otherwise be effective. | ||
(b) The 150-day period prescribed by Subsection (a) shall be | ||
extended for two days for each day the actual hearing on the merits | ||
of the case exceeds 15 days. | ||
(c) If the railroad commission does not make a final | ||
determination concerning a schedule of rates before expiration of | ||
the applicable suspension period, the railroad commission is | ||
considered to have approved the schedule. This approval is subject | ||
to the authority of the railroad commission to continue a hearing in | ||
progress. | ||
Sec. 144.108. TEMPORARY RATES. (a) The railroad | ||
commission may establish temporary rates to be in effect during the | ||
applicable suspension period under Section 144.107. | ||
(b) If the railroad commission does not establish temporary | ||
rates, the rates in effect when the suspended schedule was filed | ||
continue in effect during the suspension period. | ||
Sec. 144.109. BONDED RATES. (a) A gas pipeline may put a | ||
changed rate into effect by filing a bond with the railroad | ||
commission if the railroad commission fails to make a final | ||
determination within 90 days from the date the proposed increase | ||
would otherwise be effective. | ||
(b) The bonded rate may not exceed the proposed rate. | ||
(c) The bond must be: | ||
(1) payable to the railroad commission in an amount, | ||
in a form, and with a surety approved by the railroad commission; | ||
and | ||
(2) conditioned on refund. | ||
(d) The gas pipeline shall refund or credit against future | ||
bills: | ||
(1) money collected under the bonded rates in excess | ||
of the rate finally ordered; and | ||
(2) interest on that money, at the current interest | ||
rate as determined by the railroad commission. | ||
Sec. 144.110. ESTABLISHMENT OF FINAL RATES. (a) If, after | ||
hearing, the railroad commission finds the rates are unreasonable | ||
or in violation of law, the railroad commission shall: | ||
(1) enter an order establishing the rates the gas | ||
pipeline shall charge or apply for the service in question; and | ||
(2) serve a copy of the order on the gas pipeline. | ||
(b) The rates established in the order shall be observed | ||
thereafter until changed as provided by this subtitle. | ||
Sec. 144.111. APPROVAL OF DECREASE IN RATES. | ||
Notwithstanding any other provision in this subtitle, the railroad | ||
commission may, without reference to the rate standard prescribed | ||
by Section 144.051, administratively approve a decrease in rates | ||
proposed by the gas pipeline and agreed on by each party directly | ||
affected unless the railroad commission determines that the | ||
proposed decrease is not in the public interest. | ||
Sec. 144.112. SURCHARGE TO RECOVER RELOCATION COSTS. | ||
(a) This section applies to a gas pipeline's costs of relocating a | ||
facility to accommodate construction or improvement of a highway, | ||
road, street, public way, or other public work by or on behalf of | ||
the United States, this state, a political subdivision of this | ||
state, or another entity having the power of eminent domain that is | ||
not reimbursed by a source other than as provided by this section. | ||
(b) A gas pipeline may recover its relocation costs to which | ||
this section applies through a surcharge on gas volumes sold and | ||
transported to customers in the service area where the relocation | ||
occurred by applying to the railroad commission for a new rate | ||
schedule or tariff. The gas pipeline is not required to file a | ||
statement of intent to increase rates to institute the surcharge, | ||
and the other provisions of this subchapter, other than appeal | ||
rights, do not apply to institution of the surcharge. | ||
(c) An application under Subsection (b) must include | ||
sufficient documentation to demonstrate: | ||
(1) the requirement for each relocation; | ||
(2) the entity requiring the relocation; | ||
(3) costs incurred for relocation of comparable | ||
facilities; | ||
(4) surcharge computations; and | ||
(5) that reasonable efforts have been made to receive | ||
reimbursement from the entity requiring the relocation, if | ||
applicable. | ||
(d) Not later than the 35th day after the date an | ||
application under Subsection (b) is received, the railroad | ||
commission shall administratively grant or deny the application. | ||
Denial of the application must be based on a finding that: | ||
(1) the relocation was not necessary or required; | ||
(2) the costs of the relocation were excessive or not | ||
supported; | ||
(3) the gas pipeline did not pursue reimbursement from | ||
the entity requiring the relocation, if applicable; | ||
(4) the surcharge is unduly discriminatory among | ||
customers or classes of customers located in the service area; or | ||
(5) the period over which the relocation costs are | ||
designed to be recovered is less than one or more than three years. | ||
(e) If the railroad commission does not make a decision | ||
before the deadline prescribed by Subsection (d), the application | ||
is approved. | ||
[Sections 144.113-144.150 reserved for expansion] | ||
SUBCHAPTER D. RATE CHANGES PROPOSED BY COMMISSION | ||
Sec. 144.151. UNREASONABLE OR VIOLATIVE EXISTING RATES. | ||
(a) If the railroad commission, on its own motion or on complaint | ||
by an affected person, after reasonable notice and hearing, finds | ||
that the existing rates of a gas pipeline for a service are | ||
unreasonable or in violation of law, the railroad commission shall: | ||
(1) enter an order establishing just and reasonable | ||
rates for that gas pipeline, including maximum or minimum rates; | ||
and | ||
(2) serve a copy of the order on the gas pipeline. | ||
(b) The rates set under Subsection (a) constitute the legal | ||
rates of the gas pipeline until changed as provided by this | ||
subtitle. | ||
Sec. 144.152. INVESTIGATING COSTS OF OBTAINING SERVICE FROM | ||
ANOTHER SOURCE. If a gas pipeline does not produce the service that | ||
it distributes, transmits, or furnishes to the public for | ||
compensation but obtains the service from another source, the | ||
railroad commission may investigate the cost of that production in | ||
an investigation of the reasonableness of the gas pipeline's rates. | ||
[Sections 144.153-144.200 reserved for expansion] | ||
SUBCHAPTER E. RATES FOR GOVERNMENTAL ENTITIES | ||
Sec. 144.201. TRANSPORTATION RATES BETWEEN GAS PIPELINE AND | ||
STATE AGENCY. (a) Notwithstanding Section 144.003(b), absent a | ||
contract for transportation service between a state agency and a | ||
gas pipeline, the railroad commission, not later than the 210th day | ||
after the date either party files a request to set a transportation | ||
rate, shall establish the transportation rate for the state agency. | ||
The railroad commission has exclusive original jurisdiction to | ||
establish a transportation rate for a state agency under this | ||
section. | ||
(b) The railroad commission shall base its determination of | ||
the transportation rate under Subsection (a) on the cost of | ||
providing the transportation service for both the distribution | ||
system and the transmission system, as applicable, of the gas | ||
pipeline. | ||
(c) The railroad commission may order temporary rates under | ||
Subsection (a) as provided by Section 144.108. | ||
Sec. 144.202. EXCLUDED EXPENSES. (a) The rates that a gas | ||
pipeline charges a state agency may not include an amount | ||
representing a gross receipts assessment, regulatory assessment, | ||
or similar expense of the gas pipeline. | ||
(b) An expense under Subsection (a) that is reasonable and | ||
is not recovered from a state agency under this section may be | ||
recovered from other customers of the gas pipeline. | ||
(c) A gross receipts assessment, regulatory assessment, or | ||
similar expense of the gas pipeline does not include a payment to a | ||
municipality under a contract, franchise, or other agreement. | ||
[Sections 144.203-144.250 reserved for expansion] | ||
SUBCHAPTER F. SERVICES | ||
Sec. 144.251. GENERAL STANDARD. A gas pipeline shall | ||
furnish service, instrumentalities, and facilities that are safe, | ||
adequate, efficient, and reasonable. | ||
Sec. 144.252. AUTHORITY OF RAILROAD COMMISSION CONCERNING | ||
STANDARDS. The railroad commission, on its own motion or on | ||
complaint and after reasonable notice and hearing, may: | ||
(1) adopt just and reasonable standards, | ||
classifications, regulations, or practices a gas pipeline must | ||
follow in furnishing a service; | ||
(2) adopt adequate and reasonable standards for | ||
measuring a condition, including quantity, quality, and pressure | ||
relating to the furnishing of a service; | ||
(3) adopt reasonable regulations for examining, | ||
testing, and measuring a service; and | ||
(4) adopt or approve reasonable rules, regulations, | ||
specifications, and standards to ensure the accuracy of equipment, | ||
including meters and instruments, used to measure a service. | ||
Sec. 144.253. RULE OR STANDARD. (a) A gas pipeline may | ||
file with the railroad commission a standard, classification, | ||
regulation, or practice the gas pipeline follows. | ||
(b) A standard, classification, regulation, or practice | ||
filed by the gas pipeline continues in force until: | ||
(1) amended by the gas pipeline; or | ||
(2) changed by the railroad commission as provided by | ||
this subtitle. | ||
Sec. 144.254. SERVICE TO STATE AGENCIES. A gas pipeline may | ||
not refuse to provide service to a state agency if the gas | ||
pipeline's existing facilities have capacity available. | ||
Sec. 144.255. REQUIRED SERVICE TO PUBLIC RETAIL CUSTOMER. | ||
(a) In this section, "service site" means facilities or buildings | ||
operated by a public retail customer or a group of adjacent | ||
facilities or buildings operated by a public retail customer within | ||
one contiguous geographical area. | ||
(b) Unless the gas pipeline is prohibited by other law from | ||
providing the service and if sufficient pipeline capacity is | ||
available on an existing facility of the pipeline to provide the | ||
service, a gas pipeline may not refuse to provide to a public retail | ||
customer at a service site, at rates established as provided by | ||
Subsection (c), the following services: | ||
(1) the sale of gas; | ||
(2) the transportation of an annual average of 25 | ||
million British thermal units or more each day of gas that is: | ||
(A) taken as a royalty in kind; and | ||
(B) owned by the state or managed by a marketing | ||
program operated by the state or by a state agency; or | ||
(3) a combination of the services described by | ||
Subdivisions (1) and (2). | ||
(c) A gas pipeline shall provide a service described by | ||
Subsection (b) at rates provided by a written contract negotiated | ||
between the pipeline and the state or a state agency. If the | ||
pipeline and the state or state agency are not able to agree to a | ||
contract rate, a fair and reasonable rate may be determined for the | ||
public retail customer, as a rate for a separate class of service, | ||
by the railroad commission. | ||
(d) In this section, "public retail customer" has the | ||
meaning assigned by Section 35.101. | ||
Sec. 144.256. BILLING. (a) A gas pipeline may not bill or | ||
otherwise require the state or a state agency or institution to pay | ||
for service before the service is provided. | ||
(b) The railroad commission shall adopt rules concerning | ||
payment of bills by the state or a state agency to a gas pipeline. | ||
The rules must be consistent with Chapter 2251, Government Code. | ||
(c) This subtitle does not prohibit a gas pipeline from | ||
entering into an agreement with the state or a state agency to | ||
establish a level or average monthly service billing plan. An | ||
agreement under this subsection must require quarterly | ||
reconciliation of the leveled or equalized bills. | ||
Sec. 144.257. ELECTRONIC BILLING. On request of a customer | ||
of a gas pipeline, the gas pipeline may transmit the pipeline's bill | ||
for services through the Internet or by other electronic means | ||
instead of through the United States mail. | ||
Sec. 144.258. EXAMINATION AND TEST OF INSTRUMENT OR | ||
EQUIPMENT; INSPECTION. (a) The railroad commission may: | ||
(1) examine and test equipment, including meters and | ||
instruments, used to measure service of a gas pipeline; and | ||
(2) set up and use on the premises occupied by a gas | ||
pipeline an apparatus or appliance necessary for the examination or | ||
test. | ||
(b) The gas pipeline is entitled to be represented at an | ||
examination, test, or inspection made under this section. | ||
(c) The gas pipeline and its officers and employees shall | ||
facilitate the examination, test, or inspection by giving | ||
reasonable aid to the railroad commission and to any person | ||
designated by the railroad commission for the performance of those | ||
duties. | ||
[Sections 144.259-144.300 reserved for expansion] | ||
SUBCHAPTER G. INTERIM COST RECOVERY AND RATE ADJUSTMENT | ||
Sec. 144.301. INTERIM ADJUSTMENT FOR CHANGES IN INVESTMENT. | ||
(a) A gas pipeline that has filed a rate case under Subchapter C | ||
within the preceding two years may file with the railroad | ||
commission a tariff or rate schedule that provides for an interim | ||
adjustment in the gas pipeline's monthly customer charge or initial | ||
block rate to recover the cost of changes in the investment in | ||
service for gas pipeline services. The adjustment shall be | ||
allocated among the gas pipeline's classes of customers in the same | ||
manner as the cost of service was allocated among classes of | ||
customers in the gas pipeline's latest effective rates for the area | ||
in which the tariff or rate schedule is implemented. The gas | ||
pipeline shall file the tariff or rate schedule, or the annual | ||
adjustment under Subsection (c), with the railroad commission at | ||
least 60 days before the proposed implementation date of the | ||
tariff, rate schedule, or annual adjustment. The gas pipeline | ||
shall provide notice of the tariff, rate schedule, or annual | ||
adjustment to affected customers by bill insert or direct mail not | ||
later than the 45th day after the date the gas pipeline files the | ||
tariff, rate schedule, or annual adjustment with the railroad | ||
commission. During the 60-day period, the railroad commission may | ||
act to suspend the implementation of the tariff, rate schedule, or | ||
annual adjustment for up to 45 days. After the issuance of a final | ||
order or decision by the railroad commission in a rate case that is | ||
filed after the implementation of a tariff or rate schedule under | ||
this section, any change in investment that has been included in an | ||
interim adjustment in accordance with the tariff or rate schedule | ||
under this section shall no longer be subject to subsequent review | ||
for reasonableness or prudence. Until the issuance of a final order | ||
or decision by the railroad commission in a rate case that is filed | ||
after the implementation of a tariff or rate schedule under this | ||
section, all amounts collected under the tariff or rate schedule | ||
before the filing of the rate case are subject to refund. | ||
(b) The amount the gas pipeline shall adjust the gas | ||
pipeline's rates upward or downward under the tariff or rate | ||
schedule each calendar year is based on the difference between the | ||
value of the invested capital for the preceding calendar year and | ||
the value of the invested capital for the calendar year preceding | ||
that calendar year. The value of the invested capital is equal to | ||
the original cost of the investment at the time the investment was | ||
first dedicated to public use minus the accumulated depreciation | ||
related to that investment. | ||
(c) The interim adjustment shall be recalculated on an | ||
annual basis in accordance with the requirements of Subsection (b). | ||
The gas pipeline may file a request with the railroad commission to | ||
suspend the operation of the tariff or rate schedule for any year. | ||
The request must be in writing and state the reasons why the | ||
suspension is justified. The railroad commission may grant the | ||
suspension on a showing by the gas pipeline of reasonable | ||
justification. | ||
(d) A gas pipeline may only adjust the gas pipeline's rates | ||
under the tariff or rate schedule for the return on investment, | ||
depreciation expense, ad valorem taxes, revenue related taxes, and | ||
incremental federal income taxes related to the difference in the | ||
value of the invested capital as determined under Subsection (b). | ||
The return on investment, depreciation, and incremental federal | ||
income tax factors used in the computation must be the same as the | ||
factors reflected in the final order issued by or settlement | ||
agreement approved by the railroad commission establishing the gas | ||
pipeline's latest effective rates for the area in which the tariff | ||
or rate schedule is implemented. | ||
(e) A gas pipeline that implements a tariff or rate schedule | ||
under this section shall file with the railroad commission an | ||
annual report describing the investment projects completed and | ||
placed in service during the preceding calendar year and the | ||
investments retired or abandoned during the preceding calendar | ||
year. The annual report shall also state the cost, need, and | ||
customers benefited by the change in investment. | ||
(f) In addition to the report required under Subsection (e), | ||
the gas pipeline shall file with the railroad commission an annual | ||
earnings monitoring report demonstrating the gas pipeline's | ||
earnings during the preceding calendar year. | ||
(g) If the gas pipeline is earning a return on invested | ||
capital, as demonstrated by the report filed under Subsection (f), | ||
of more than 75 basis points above the return established in the | ||
latest effective rates approved by the railroad commission for the | ||
area in which the tariff or rate schedule is implemented under this | ||
section, the gas pipeline shall file a statement with that report | ||
stating the reasons why the rates are not unreasonable or in | ||
violation of law. | ||
(h) If a gas pipeline that implements a tariff or rate | ||
schedule under this section does not file a rate case under | ||
Subchapter C before the fifth anniversary of the date on which the | ||
tariff or rate schedule takes effect, the gas pipeline shall file a | ||
rate case under that subchapter not later than the 180th day after | ||
that anniversary in relation to any rates subject to the tariff or | ||
rate schedule. | ||
(i) This section does not limit the power of the railroad | ||
commission under Section 144.151. | ||
(j) A gas pipeline implementing a tariff or rate schedule | ||
under this section shall reimburse the railroad commission for the | ||
gas pipeline's proportionate share of the railroad commission's | ||
costs related to the administration of the interim rate adjustment | ||
mechanism provided by this section. | ||
CHAPTER 145. JUDICIAL REVIEW; ENFORCEMENT AND PENALTIES | ||
SUBCHAPTER A. JUDICIAL REVIEW | ||
Sec. 145.001. RIGHT TO JUDICIAL REVIEW. (a) Any party to a | ||
proceeding before the railroad commission under this subtitle is | ||
entitled to judicial review under the substantial evidence rule. | ||
(b) In a proceeding under this subtitle, the issue of | ||
confiscation is determined by a preponderance of the evidence. | ||
Sec. 145.002. JUDICIAL STAY OR SUSPENSION. While an appeal | ||
of an order, ruling, or decision of the railroad commission under | ||
this subtitle is pending, the district court, court of appeals, or | ||
supreme court, as appropriate, may stay or suspend all or part of | ||
the operation of the order, ruling, or decision. In granting or | ||
refusing a stay or suspension, the court shall act in accordance | ||
with the practice of a court exercising equity jurisdiction. | ||
[Sections 145.003-145.020 reserved for expansion] | ||
SUBCHAPTER B. ENFORCEMENT AND PENALTIES | ||
Sec. 145.021. ACTION TO ENJOIN OR REQUIRE COMPLIANCE. | ||
(a) The attorney general, on the request of the railroad | ||
commission, shall apply in the name of the railroad commission for | ||
an order under Subsection (b) if the railroad commission determines | ||
that a gas pipeline or other person is: | ||
(1) engaging in or about to engage in an act that | ||
violates this subtitle or an order or rule of the railroad | ||
commission entered or adopted under this subtitle; or | ||
(2) failing to comply with the requirements of this | ||
subtitle or a rule or order of the railroad commission. | ||
(b) A court, in an action under this section, may: | ||
(1) prohibit the commencement or continuation of an | ||
act that violates this subtitle or an order or rule of the railroad | ||
commission entered or adopted under this subtitle; or | ||
(2) require compliance with a provision of this | ||
subtitle or an order or rule of the railroad commission. | ||
(c) The remedy under this section is in addition to any | ||
other remedy provided under this subtitle. | ||
Sec. 145.022. CONTEMPT. The railroad commission may file | ||
an action for contempt against a person who: | ||
(1) fails to comply with a lawful order of the railroad | ||
commission; | ||
(2) fails to comply with a subpoena or subpoena duces | ||
tecum; or | ||
(3) refuses to testify about a matter on which the | ||
person may be lawfully interrogated. | ||
Sec. 145.023. CIVIL PENALTY AGAINST GAS PIPELINE OR | ||
AFFILIATE. (a) A gas pipeline or affiliate is subject to a civil | ||
penalty if the gas pipeline or affiliate knowingly violates this | ||
subtitle, fails to perform a duty imposed on it, or fails, neglects, | ||
or refuses to obey an order, rule, direction, or requirement of the | ||
railroad commission or a decree or judgment of a court. | ||
(b) A civil penalty under this section shall be in an amount | ||
of not less than $1,000 and not more than $5,000 for each violation. | ||
(c) A gas pipeline or affiliate commits a separate violation | ||
each day it continues to violate Subsection (a). | ||
(d) The attorney general shall file in the name of the | ||
railroad commission a suit on the attorney general's own initiative | ||
or at the request of the railroad commission to recover the civil | ||
penalty under this section. | ||
Sec. 145.024. OFFENSE. (a) A person commits an offense if | ||
the person knowingly violates this subtitle. | ||
(b) An offense under this section is a felony of the third | ||
degree. | ||
Sec. 145.025. PLACE FOR SUIT. A suit for an injunction or a | ||
penalty under this subtitle may be brought in: | ||
(1) Travis County; | ||
(2) a county in which the violation is alleged to have | ||
occurred; or | ||
(3) a county in which a defendant resides. | ||
Sec. 145.026. PENALTIES CUMULATIVE. (a) A penalty that | ||
accrues under this subtitle is cumulative of any other penalty. | ||
(b) A suit for the recovery of a penalty does not bar or | ||
affect the recovery of any other penalty or bar a criminal | ||
prosecution against any person, including a gas pipeline or | ||
officer, director, agent, or employee of a gas pipeline. | ||
Sec. 145.027. DISPOSITION OF FINES AND PENALTIES. A fine or | ||
penalty collected under this subtitle, other than a fine or penalty | ||
collected in a criminal proceeding, shall be paid to the railroad | ||
commission. | ||
[Sections 145.028-145.050 reserved for expansion] | ||
SUBCHAPTER C. COMPLAINTS | ||
Sec. 145.051. COMPLAINT BY AFFECTED PERSON. An affected | ||
person may complain to the railroad commission in writing setting | ||
forth an act or omission by a gas pipeline that the person claims | ||
violates a law that the railroad commission has jurisdiction to | ||
administer or an order, ordinance, or rule of the railroad | ||
commission. | ||
SECTION 2. This Act takes effect September 1, 2011. |