CHAPTER 13. OFFICE OF PUBLIC UTILITY COUNSEL - Texas Statutes

UTILITIES CODE

TITLE 2. PUBLIC UTILITY REGULATORY ACT

SUBTITLE A. PROVISIONS APPLICABLE TO ALL UTILITIES

CHAPTER 13. OFFICE OF PUBLIC UTILITY COUNSEL

SUBCHAPTER A. GENERAL PROVISIONS; POWERS AND DUTIES

Sec. 13.001. OFFICE OF PUBLIC UTILITY COUNSEL. The independent

office of public utility counsel represents the interests of

residential and small commercial consumers.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.002. APPLICATION OF SUNSET ACT. The Office of 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 and this chapter expires

September 1, 2011.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 405, Sec. 5, eff. Sept. 1,

1999; Acts 1999, 76th Leg., ch. 1212, Sec. 2, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

300, Sec. 1, eff. September 1, 2005.

Sec. 13.003. OFFICE POWERS AND DUTIES. (a) 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 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

electricity consumers or small commercial electricity consumers

are in need of representation;

(5) is entitled to the same access as a party, other than

commission staff, to records gathered by the commission under

Section 14.204;

(6) is entitled to discovery of any nonprivileged matter that is

relevant to the subject matter of a proceeding or petition before

the commission;

(7) may represent an individual residential or small commercial

consumer with respect to the consumer's disputed complaint

concerning utility services that is unresolved before the

commission; and

(8) may recommend legislation to the legislature that the office

determines would positively affect the interests of residential

and small commercial consumers.

(b) This section does not limit the authority of the commission

to represent residential or small commercial consumers.

(c) 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 405, Sec. 6, eff. Sept. 1,

1999.

Sec. 13.004. 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.

Added by Acts 2005, 79th Leg., Ch.

300, Sec. 2, eff. September 1, 2005.

Sec. 13.005. 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.

Added by Acts 2005, 79th Leg., Ch.

300, Sec. 2, eff. September 1, 2005.

Sec. 13.006. 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.

Added by Acts 2005, 79th Leg., Ch.

300, Sec. 2, eff. September 1, 2005.

SUBCHAPTER B. PUBLIC UTILITY COUNSEL

Sec. 13.021. 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.022. QUALIFICATIONS. (a) The counsellor must:

(1) be licensed to practice law in 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 utility competitor, 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 utility, utility competitor, or

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 13.042.

(c) Repealed by Acts 2005, 79th Leg., Ch. 300, Sec. 7, eff.

September 1, 2005.

(d) 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

300, Sec. 7, eff. September 1, 2005.

Sec. 13.023. 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 13.022;

(2) is ineligible for service as counsellor under Section

13.022, 13.042, or 13.043; 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

300, Sec. 3, eff. September 1, 2005.

Sec. 13.024. PROHIBITED ACTS. (a) The counsellor may not have

a direct or indirect interest in a utility company regulated

under this title, its parent, or its subsidiary companies,

corporations, or cooperatives or a utility competitor, 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 405, Sec. 7, eff. Sept. 1,

1999.

SUBCHAPTER C. OFFICE PERSONNEL

Sec. 13.041. PERSONNEL. (a) 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.

(b) An employee receives compensation as prescribed by the

legislature from the assessment imposed by Subchapter A, Chapter

16.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.042. 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 utilities; or

(2) the spouse of an officer, manager, or paid consultant of a

Texas trade association in the field of 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

300, Sec. 4, eff. September 1, 2005.

Sec. 13.043. 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 his or her 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 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 an electric

cooperative.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 405, Sec. 8, eff. Sept. 1,

1999.

Sec. 13.044. 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.045. 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 Commission on Human Rights 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.046. 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 title; and

(2) responsibilities under applicable laws relating to standards

of conduct for employees.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER D. PUBLIC INTEREST INFORMATION AND REPORTS

Sec. 13.061. 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.062. 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Sec. 13.063. ANNUAL REPORTS. (a) The office shall prepare

annually a complete and detailed written report accounting for

all funds received and disbursed by the office during the

preceding fiscal year. The annual report must meet the reporting

requirements applicable to financial reporting in the General

Appropriations Act.

(b) 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, the senate finance

committee, and the Sunset Advisory Commission. 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.

Acts 1997, 75th Leg., ch. 166, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

300, Sec. 5, eff. September 1, 2005.

Sec. 13.064. 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.

Added by Acts 2005, 79th Leg., Ch.

300, Sec. 6, eff. September 1, 2005.