Proposed Sections 
 Before an agency may permanently adopt a new or amended section, or repeal an 
existing section, a proposal detailing the action must be published in the Texas 
Register at least 30 days before any action may be taken. The 30-day time period 
gives interested persons an opportunity to review and make oral or written 
comments on the section. Also, in the case of substantive sections, a public 
hearing must be granted if requested by at least 25 persons, a governmental 
subdivision or agency, or an association having at least 25 members. 
 Symbology in proposed amendments. New language added to an existing section is 
indicated by the use of bold text. [Brackets] indicate deletion of existing 
material within a section. 
 
   
  TITLE 7. BANKING AND SECURITIES 
 Part I. State Finance Commission 
  Chapter 3. Banking Section 
  
  Subchapter E. Banking House and Other Facilities 
 
  7 TAC sec.3.91 
 
  The Finance Commission of Texas proposes new sec.3.91, concerning 
establishment and closing of branch banks by state chartered banks. A repeal of 
the old language was previously proposed in the March 30, 1993, issue of the 
Texas Register  (18 TexReg 1985). 
 Ann Graham, general counsel, has determined that for the first five-year period 
the section is in effect there will be no fiscal implications for state or local 
government as a result of enforcing or administering the section. 
 Ms. Graham also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be clarification of procedures and standards to be applied to 
branch application following a change to the branching statute. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Ms. Graham has determined that the proposed rule will have no local employment 
impact. 
 Comments on the proposal may be submitted to Ann Graham, General Counsel, Texas 
Department of Banking, 2601 North Lamar Boulevard, Austin, Texas 78705-4294. 
 The new section is proposed under Texas Civil Statutes, Articles 342-113 and 
342-903, which provide the State Finance Commission with the authority to 
promulgate rules relating to the establishment of branching. 
 
 
  sec.3.91. Establishment of Branch Bank (Including Automated or Unmanned Teller 
Machines) and Drive-in Facilities. 
 
  (a) Forms. Applicants shall complete and file a branch application on forms 
promulgated by the Department of Banking. Application forms and instructions are 
available from the Department on request. 
   
  (b) Filing. The Department will advise the applicant when a form has been 
reviewed and found to be complete. If it is reviewed and found to be incomplete, 
the Department will advise the applicant as to what further information needs to 
be furnished before the application will be deemed complete and accepted for 
filing. The Department will accept an application for filing after it has 
determined that the application is complete and has received the proper filing 
fee. 
   
  (c)  Investigation. The Department may investigate facts in connection with 
any application. The Department will assess fees to cover the costs of these 
investigations which will be in addition to the standard application fee. The 
Department may require an applicant to submit information in addition to the 
information required on the application form. 
   
  (d) Public Notice. When it is notified of the acceptance of its application 
for filing, the applicant shall publish notice of its filing. The notice shall 
be published once in a form prescribed by the Department. Publication will be in 
a newspaper of general circulation in the community where the proposed branch is 
to be located. The applicant will furnish the Department with a copy of the 
notice and a publisher's affidavit attesting to the date of its publication. 
   
  (e)  Public Comments and Protests. There shall be a 14-day period after 
publication of notice for the public to submit comments regarding the 
application. Within the 14 days, any state or national bank or state or federal 
savings association that contends it would be adversely affected if the 
application were granted may protest the application and request a hearing. 
Parties other than state or national banks or state or federal savings 
associations that wish to protest an application and request a hearing on the 
application may also do so within 14 days after publication of notice if they 
can establish standing. All protestants shall clearly state the grounds for the 
protest. A copy of the protest shall be furnished to the applicant who shall 
reply to it within 10 days after it is received. The reply shall be addressed to 
the Department of Banking and a copy of the reply shall be furnished to the 
protestant. 
   
  (f) Community Credit Needs. Consistent with their safe and sound operation, 
state chartered banks have a continuing and affirmative obligation to meet the 
credit needs of the entire local communities within their designated service 
areas, including low- and moderate-income neighborhoods, as required under the 
federal Community Reinvestment Act, 12 United States Code,  ssec.2901-2909. 
   
  (g)  Unprotested applications. If no protest is received by the Department 
within 14 days following notice by publication in a newspaper of general 
circulation where the proposed bank will be located, and if the applicant has 
waived a hearing, the Commissioner may rule on the application based on 
information contained in the application and the Department of Banking's files 
without a hearing, or, in the Commissioner's discretion, the Commissioner may 
order a hearing even though the application has not been protested. 
   
  (h)  Protested applications. If a protest of the application is received 
within the 14-day period a hearing will be held on the application. 
   
  (i)  Review with Hearing. If a hearing is held on the application, the 
Commissioner shall rule on the application based solely on the information 
elicited in the hearing. The burden shall be on the applicant to establish the 
truth of the information required in the branch bank application form. 
Protestants may cross examine the applicant and present evidence and argument on 
all matters put in issue by the protest. Protestants shall have the burden of 
pleading and proving any facts that might be cause for a significant supervisory 
or regulatory concern which contradict or which tend to contradict the 
statements in the application. The Departmental Examiner may support or oppose 
the application or may assume a neutral role. If the Departmental Examiner knows 
of any basis for a significant supervisory or regulatory concern regarding the 
proposed branch, the applicant, or its affiliates, the Departmental Examiner 
shall file a report, shall submit to cross examination thereon, and shall make 
the information on which that report is based available for inspection by all 
parties to the hearing under such protective orders as may be appropriate. 
   
  (j) Appeals. Appeals from the hearing decisions of the Commissioner on 
branching applications will be to the District Court of Travis County under the 
substantial evidence rule pursuant to APTRA, sec.19 and the Texas Supreme Court 
case of Chemical Bank & Trust Co. v. Falkner<ol>, 369 S.W. 2d 427 (Tex. 1963). 
   
  (k) Beginning Operations. Any branch approved under this section must begin 
operations within 12 months from the date of approval unless the Commissioner 
extends that date. Approval will automatically expire 12 months from the date of 
approval if no extension is granted by the Department in writing. 
   
  (l)  Unmanned Teller Machines. The procedure outlined in this section for 
approval of branches shall not apply to unmanned teller machines. State 
chartered banks wishing to establish unmanned teller machine locations may do so 
at will upon notifying the Texas Department of Banking with written notification 
of such locations. 
   
  (m) Emergency Branches. The procedure outlined in this section for approval of 
branches shall not apply to emergency transactions approved by the Commissioner 
such as the acquisition of a branch as the result of the purchase of assets and 
the assumption of liabilities of a failed or distressed financial institution. 
   
  (n) Branch Relocation. A bank may, with prior written approval of the 
Commissioner, relocate an approved branch to a location within the community 
served by the branch. The procedures outlined in this section for approval of 
branches shall not apply to the relocation of an approved branch. 
   
  (o) Closing a Branch. At least 60 days before closing an approved branch, the 
bank shall provide the Department with a copy of a resolution concurred in by a 
majority of the board of directors authorizing the branch to be closed. Notice 
of the closing shall be conspicuously posted in the lobby of the branch 
continuously for at least 30 days prior to the date of closing. The bank shall 
notify the Department of Banking when the branch location has been officially 
closed. The bank cannot thereafter reopen the branch without going through the 
same application and approval process that a new branch would require. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 10, 1993. 
 TRD-9320946 
  Ann Graham 
 General Counsel 
 Texas Department of Banking 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 475-1300 
         
                   
  TITLE 16. ECONOMIC REGULATION 
 Part II. Public Utility Commission of Texas 
  Chapter 22. Practice and Procedure 
  
  Subchapter A. General Provisions and Definitions 
 
  The Public Utility Commission of Texas proposes new sec. s22.2-22.5, 22.21, 
22.22, 22.31-22.34, 22.51-22.56, 22.71-22.80, 22.101-22.105, 22.121-22.126, 22. 
141-22.145, 22.161, 22.181, 22.182, 22.201-22.205, 22.221-22.228, 22.241-22. 
246, 22.261-22.264, and 22.281-22.284, concerning rules of practice and 
procedure before the Public Utility Commission. The new sections constitute a 
major revision to the current rules of practice and procedure, and, if adopted, 
would replace existing Chapter 21. 
 Paula Mueller, assistant general counsel, has determined that for the first 
five-year period the sections are in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
sections. 
 Ms. Mueller also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be greater procedural consistency among proceedings, reduction 
of workload and expense associated with disputes on procedural issues, and 
provision of guidance for persons who participate in proceedings at the Public 
Utility Commission. There will be no effect on small businesses. There is no 
anticipated economic cost to persons who are required to comply with the 
sections as proposed. 
 Ms. Mueller also has determined that for each of the first five years the 
sections are in effect there will be no impact on employment in the geographical 
areas affected by implementing the requirements of the sections. 
 Comments on the proposal (14 copies) may be submitted to John M. Renfrow, 
Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, 
within 30 days after publication. Comments should refer to Project Number 10782. 
   
  16 TAC sec.sec.22.1-22.5 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.1. Purpose and Scope. 
 
  (a) Purpose. The purpose of this chapter is to provide a system of procedures 
for practice before the Public Utility Commission of Texas that will promote the 
just and efficient disposition of proceedings and public participation in the 
decision-making process. The provisions of this chapter shall be given a fair 
and impartial construction to attain these objectives. 
   
  (b) Scope. 
 
  (1) This chapter shall govern the initiation, conduct, and determination of 
commission proceedings required or permitted by law, whether instituted by order 
of the commission or by the filing of an application, complaint, petition, or 
any other pleading. 
   
  (2) This chapter shall not be construed so as to enlarge, diminish, modify, or 
otherwise alter the jurisdiction, powers, or authority of the commission, the 
authority or duties of the commission general counsel or commission staff, or 
the substantive rights of any person. 
   
  (3) To the extent that any provision of this chapter is in conflict with any 
statute or substantive rule of the commission, the statute or substantive rule 
shall control. 
 
       
  sec.22.2. Definitions.  The following terms, when used in this chapter, shall 
have the following meanings, unless the context or specific language of a 
section clearly indicates otherwise. 
   
   Administrative Review -Process under which an application may be approved by 
a hearings examiner without a hearing and without formal action by the 
commission. 
   
   Affected Person -The definition of affected person is that definition give in 
the Public Utility Regulatory Act (PURA),  s3(h). 
   
   Applicant-A person, including the commission general counsel, who seeks 
action from the commission by written application, petition, complaint, notice 
of intent, appeal, or other pleading that initiates a proceeding. 
   
   Application-A written application, petition, complaint, notice of intent, 
appeal, or other pleading that initiates a proceeding. 
   
   APTRA-The Administrative Procedure and Texas Register Act, Texas Civil 
Statutes, Article 6252-13a, as it may be amended from time to time. 
   
   Authorized Representative -A person who enters an appearance on behalf of a 
party, or on behalf of a person seeking to be a party or otherwise to 
participate, in a commission proceeding. The appearance may be entered in person 
or by subscribing the representative's name upon any pleading filed on behalf of 
the party or person seeking to be a party or otherwise to participate in the 
proceeding. The authorized representative shall be considered to remain a 
representative of record unless a statement or pleading to the contrary is filed 
or stated in the record. 
   
   Chairman-The commissioner elected by the commissioners to serve as chairman. 
   
   Commission-The Public Utility Commission of Texas. 
   
   Commissioner-One of the members of the Public Utility Commission of Texas. 
   
   Complainant-A person, including the commission general counsel, who files a 
complaint intended to initiate a proceeding with the commission regarding any 
act or omission by the commission or any person subject to the commission's 
jurisdiction. 
   
   Control Number -Number assigned by the director of hearings to a docket, 
project, or tariff. 
   
   Days-Calendar days, not working days, unless otherwise specified by this 
chapter or the commission's substantive rules. 
   
   Director of Hearings-The individual employed by the commission and charged 
with the duties of director of hearings as specified under PURA and the 
commission rules as they may be amended from time to time. The director of 
hearings may designate individuals to perform his or her duties as necessary. 
   
   Docket-A proceeding handled as a contested case under APTRA. 
   
   Final Order-The whole or part of the final disposition by the commission of 
the issues before the commission in a proceeding, rendered in compliance with 
sec.22.263 of this title (relating to Final Orders). 
   
   Financial Interest -Any legal or equitable interest, or any relationship as 
officer, director, trustee, advisor, or other active participant in the affairs 
of a party. An interest as a taxpayer, utility ratepayer, or cooperative member 
is not a financial interest. An interest a person holds indirectly by ownership 
of an interest in a retirement system, institution, or fund which in the normal 
course of business invests in diverse securities independently of that person's 
control is not a financial interest. 
   
   General Counsel -The individual employed by the commission and charged with 
the duties of the general counsel under PURA. The general counsel may designate 
individuals to perform his or her duties as necessary. 
   
   Hearing-Any commission proceeding at which evidence is taken on the merits of 
the matters at issue, not including prehearing conferences. 
   
   Hearing Day-A day of hearing on the merits under PURA, sec.43(d). 
   
   Hearings Examiner -When used in this chapter, the term "hearings examiner" 
includes an administrative law judge. 
   
   Intervenor-A person, other than the applicant, respondent, or the commission 
general counsel, who is permitted by this chapter or by ruling of the presiding 
examiner, to become a party to a proceeding. 
   
   Licensing Proceeding -The commission process respecting the granting, denial, 
renewal, revocation, suspension, annulment, withdrawal, or amendment of a 
license, including a proceeding regarding a notice of intent to build a new 
electric generating unit. 
   
   Major Rate Proceeding -Any proceeding filed pursuant to PURA, sec.43 
involving an increase in rates which would increase the aggregate revenues of 
the applicant more than the greater of $100,000 or 2.5%. In addition, a major 
rate proceeding is any rate proceeding initiated pursuant to PURA, sec.42 in 
which the respondent utility is directed to file a rate filing package. 
   
   Municipality-A city, incorporated village, or town, existing, created, or 
organized under the general, home-rule, or special laws of Texas. A municipality 
is a "person" as defined in this section. 
   
   Party-A party under sec.22.72 or sec.22.73 of this title (relating to Formal 
Requisites of Pleadings To Be Filed with the Commission; Contents of Pleadings, 
Generally). 
   
   Person-An individual, partnership, corporation, association, governmental 
subdivision, entity, or public or private organization. 
   
   Pleading-A written document submitted by a party, or a person seeking to 
participate in a proceeding, setting forth allegations of fact, claims, requests 
for relief, legal argument, and/or other matters relating to a commission 
proceeding. 
   
   Prehearing Conference -Any conference or meeting of the parties, prior to the 
hearing on the merits, on the record and presided over by the presiding 
examiner. 
   
   Presiding Examiner -The commission, any commissioner, the director of 
hearings, or any administrative law judge or hearings examiner assigned by the 
director of hearings to preside over a commission proceeding or any portion 
thereof. 
   
   Proceeding-Any hearing, investigation, inquiry, or other fact-finding or 
decision-making procedure, including the denial of relief or the dismissal of a 
complaint. 
   
   Project-A rulemaking or other proceeding that is not a docket or a tariff. 
   
   Protestant-A person who is not a party to the case who submits oral or 
written comments. A person classified as a protestant does not have rights to 
participate in a proceeding other than by providing oral or written comments. 
   
   PURA-The Public Utility Regulatory Act, Texas Civil Statutes, Article 1446c, 
as it may be amended from time to time. 
   
   Relative-An individual (or spouse of an individual) who is related to the 
individual in issue (or the spouse of the individual in issue) within the second 
degree of consanguinity or relationship according to the civil law system. 
   
   Respondent-A person under the commission's jurisdiction against whom any 
complaint or appeal has been filed or who is under formal investigation by the 
commission. 
   
   Rulemaking-A proceeding pursuant to APTRA, sec.5 conducted to adopt, amend, 
or repeal a commission rule. 
   
   Tariff Filing-A proceeding initiated by an application filed pursuant to 
sec.sec.24, 25, 26, 27, or 28 of Chapter 23, or PURA, sec.43A and sec.43B, which 
is not handled as a docket or a rulemaking. 
   
   Working Day-A day on which the commission is open for the conduct of 
business. 
 
   
  sec.22.3. Standards of Conduct. 
 
  (a) Standards of Conduct for Parties. 
 
  (1) Every person appearing in any commission proceeding shall comport himself 
or herself with dignity, courtesy, and respect for the commission, the presiding 
examiner and all other persons participating in the proceeding. Professional 
representatives shall observe and practice the standard of ethical and 
professional conduct prescribed for their professions. 
   
  (2) Upon a finding of a violation of paragraph (1) of this subsection, any 
party, witness, attorney, or other representative may be excluded by the 
presiding examiner from any proceeding for such period and upon such conditions 
as are just, or may be subject to other just, reasonable, and lawful 
disciplinary action as the commission may prescribe. 
     
  (b) Communications. 
 
  (1) Personal Communications. Communications in person by public utilities, 
their affiliates or representatives, or any person with the commission or any 
employee of the commission shall be governed by Texas Civil Statutes, Article 
6252-23,  ssec.2, 3, 3A, and 4. Records shall be kept of all such communications 
and shall be available to the public on a monthly basis. The records of 
communications shall contain the following information: 
 
  (A) name and address of the person contacting the commission; 
   
  (B) name and address of the party or business entity represented; 
   
  (C) case, proceeding, or application, if available; 
   
  (D) subject matter of communication; 
   
  (E) the date of the communication; 
   
  (F) the action, if any, requested of the commission; and 
   
  (G)  whether the person has received, or expects to receive, a financial 
benefit in return for making the communication. 
     
  (2) Ex Parte Communications. Unless required for the disposition of ex parte 
matters authorized by law, members or employees of the commission assigned to 
render a decision or to make findings of fact and conclusions of law in a 
contested case may not communicate, directly or indirectly, in connection with 
any issue of law or fact with any agency, person, party, or their 
representatives, except on notice and opportunity for all parties to 
participate. Members or employees of the commission assigned to render a 
decision or to make findings of fact or conclusions of law in a contested case 
may communicate ex parte with employees of the commission who have not 
participated in any hearing in the case for the purpose of utilizing the special 
skills or knowledge of the commission and its staff in evaluating the evidence. 
Number running procedures conducted pursuant to written commission policy do not 
constitute impermissible ex parte communications, provided memoranda 
memorializing such procedures are preserved and made available to all parties of 
record in the proceeding to which the number running procedures relate. 
     
  (c)  Standards for Recusal of Presiding Examiners. A presiding examiner shall 
recuse herself or himself from sitting in a proceeding, or from deciding one or 
more issues in a proceeding, in which any one or more of the following 
circumstances exist: 
 
  (1) the presiding examiner in fact lacks impartiality, or the presiding 
examiner's impartiality has been reasonably questioned; 
   
  (2) the presiding examiner, or any relative of the presiding examiner, is a 
party or has a financial interest in the subject matter of the issue or in one 
of the parties, or the presiding examiner has any other interest that could be 
substantially affected by the determination of the issue; or 
   
  (3) the presiding examiner or a relative of the presiding examiner has 
participated as counsel, advisor, or witness in the proceeding or matter in 
controversy. 
     
  (d) Motions for Disqualification or Recusal of a Hearings Examiner. 
 
  (1) Any party may move for disqualification or recusal of a hearings examiner 
stating with particularity the grounds why the hearings examiner should not sit. 
The grounds may include any disability or matter, not limited to those set forth 
in subsection (c) of this section. The motion shall be made on personal 
knowledge and shall set forth such facts as would be admissible in evidence. 
   
  (2) The motion shall be filed within 10 working days after the facts that are 
the basis of the motion become known to the party, or within 15 working days of 
the commencement of the proceeding, whichever is later. The motion shall be 
served on all parties by hand delivery, facsimile transmittal, or by overnight 
courier delivery. 
   
  (3) Written responses to motions for recusal shall be filed within three 
working days after the filing of the motion. The hearings examiner may require 
that responses be made orally at a prehearing conference or hearing. 
   
  (4) The hearings examiner shall rule on the motion for recusal not less than 
four and not more than six working days after the filing of the motion. 
   
  (5) The hearings examiner shall not rule on any issues that are the subject of 
a pending motion for recusal or disqualification. The director of hearings shall 
appoint another hearings examiner to preside on all matters that are the subject 
of the motion for recusal until the issue of disqualification is resolved. 
   
  (6) The parties to a proceeding may waive any ground for recusal or 
disqualification after it is fully disclosed on the record, either expressly or 
by their failure to take action on a timely basis. 
   
  (7) If the commission determines that a motion for recusal was frivolous or 
capricious, or filed for purposes of delaying the proceeding, the movant may be 
sanctioned in accordance with sec.22.161 of this title (relating to Sanctions). 
   
  (8)  Recusal of a hearings examiner, in and of itself, has no effect upon the 
validity of rulings made or orders issued prior to the time the motion for 
recusal was filed. 
     
  (e) Motion for Disqualification or Recusal of a Commissioner. 
 
  (1) Any party may move for disqualification or recusal of a commissioner 
stating with particularity grounds why the commissioner should not sit. Such a 
motion must be filed prior to the date the commission is scheduled to consider 
the matter unless the information upon which the motion is based was not known 
or discoverable with reasonable effort prior to that time. The grounds may 
include any disability or matter not limited to those set forth in subsection 
(c) of this section. The motion shall be made on personal knowledge and shall 
set forth such facts as would be admissible in evidence. 
   
  (2) The motion shall be filed within 10 working days after the facts that are 
the basis of the motion become known to the party or within 15 days of the 
commencement of the proceeding, whichever is later. The motion shall be served 
on all parties by hand delivery, facsimile transmission, or by overnight courier 
delivery. 
   
  (3) Parties may file written responses to the motion within seven working days 
from the date of filing the motion. The commission may require that responses be 
made orally at an open meeting. 
   
  (4) The commissioner sought to be disqualified shall issue a decision as to 
whether he or she agrees that recusal or disqualification is appropriate or 
required before the commission is scheduled to act on the matter for which 
recusal is sought, or within 15 days after filing of the motion, whichever 
occurs first. 
   
  (5) The parties to a proceeding may waive any ground for recusal or 
disqualification after it is fully disclosed on the record, either expressly or 
by their failure to take action on a timely basis. 
   
  (6) Recusal of a commissioner has no effect upon the validity of rulings made 
or orders issued prior to the time the motion for recusal was filed. 
 
       
  sec.22.4. Computation of Time. 
 
  (a) Counting Days. In computing any period of time prescribed or allowed by 
this chapter, by order of the commission or any presiding examiner, or by any 
applicable statute, the period shall begin on the day after the act, event, or 
default in question. The period shall conclude on the last day of the designated 
period unless that day is a day the commission is not open for business, in 
which event the designated period runs until the end of the next day on which 
the commission is open for business. 
   
  (b) Extensions. Unless otherwise provided by statute, the time for filing any 
documents may be extended, upon the filing of a motion, prior to the expiration 
of the applicable period of time, showing that there is good cause for such 
extension of time and that the need for the extension is not caused by the 
neglect, indifference, or lack of diligence of the party making the motion. 
 
     
  sec.22.5. Suspension of Rules. 
 
  (a) Suspension. The commission may suspend the operation of one or more of the 
sections in this chapter if there exists a public emergency or imperative public 
necessity and the commission ascertains that suspension will best serve the 
public interest and will not prejudice the rights of any party. 
   
  (b) Good Cause Exception. Notwithstanding any other provision of this chapter, 
the presiding examiner may grant exceptions to any requirement in this chapter 
or in a commission-prescribed form for good cause. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320936 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter B. The Organization of the Commission 
 
  16 TAC sec.22.21, sec.22.22 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.21. Meetings. 
 
  (a) The commission shall meet at times and places to be determined either by 
the chairman of the commission or by agreement of any two of the commissioners. 
   
  (b) The chairman of the commission shall preside over any proceeding or 
meeting of the commission, unless some other person is designated by the 
chairman to preside. 
   
  (c)  Notice of all commission meetings shall be provided in accordance with 
the Open Meetings Act, Texas Civil Statutes, Article 6252-17, as amended, and 
APTRA. 
 
     
  sec.22.22. Service on the Commission. The secretary of the commission shall 
have the authority to accept service of all papers or other legal documents 
served on the commission or any of its members if served in their individual 
capacity and not individually. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320983 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter C. Classification of Applications or Other Documents Initiating a 
Proceeding 
 
  16 TAC sec.sec.22.31-22.34 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.31. Classification in General. 
 
  (a) Classification and Assignment of Control Number. The director of hearings 
shall determine whether an application or other document initiating a proceeding 
should be designated as a docket, tariff, or project. The director of hearings 
shall assign an appropriate control number to each docket, tariff, or project. 
   
  (b)  Control Numbering System. The director of hearings shall establish and 
maintain a control numbering system. 
   
  (c) Control Number Log. The director of hearings shall maintain a record or 
log of all applications or other documents assigned a control number, which 
shall include the style, the date the application or other document was filed or 
the proceeding initiated, the nature of the proceeding, and the presiding 
examiner assigned to the proceeding, if any. The log shall be accessible to the 
public. 
 
     
  sec.22.32. Administrative Review. 
 
  (a) Applications Qualified for Administrative Review. An application, other 
than a major rate proceeding, may be approved by a hearings examiner without a 
hearing or action by the commission, under the following conditions: 
 
  (1) at least 30 days have passed since the completion of all notice 
requirements; 
   
  (2) the commission has received no motion to intervene or notice of 
intervention, or the matter has been fully stipulated so that there are no 
issues of fact or law disputed by any party; and 
   
  (3) the hearings examiner finds that no hearing or commission action is 
necessary and that administrative review is warranted. 
     
  (b) Hearings Examiner's Order. If an application qualifies for administrative 
review, the hearings examiner shall issue an order with findings of fact and 
conclusions of law as soon as is reasonably practicable. The order shall be 
countersigned by the director of hearings and shall be served upon each 
commissioner and all parties. 
   
  (c) Finality of Order. At the request of a majority of the commissioners, the 
order shall be placed on the agenda to be considered by the commission in open 
meeting. The commission may approve the order of the hearings examiner, vacate 
the order of the hearings examiner and remand the docket for hearing or other 
additional proceedings, or modify the order with the agreement of all parties. 
If, within 20 days after issuance of the hearings examiner's order, the 
commission has not scheduled the application to be considered at an open 
meeting, the order becomes final. 
   
  (d) Notice Requirements. Nothing in this section shall be construed to alter 
any notice requirement imposed on any proceeding by statute, rule, or order. 
   
  (e) Time Limits. Nothing in this section shall be construed to alter any time 
limit imposed on any proceeding by a statute, rule, or order. 
   
  (f) Exceptions to Examiner's Order. Nothing in this section shall be construed 
to preclude any party from filing exceptions to the presiding examiner's order, 
provided such exceptions are filed with the commission within 15 days after the 
issuance of the presiding examiner's order. 
 
     
  sec.22.33. Tariff Filings. 
 
  (a) Applicability and Classification. This section shall apply to undocketed 
applications by utilities to change their tariffs. Such tariff filings shall be 
classified as "electric tariff filings," "regular telephone tariff filings," or 
"special telephone tariff filings." Electric tariff filings and regular 
telephone tariff filings shall be those applications filed pursuant to sec.23.24 
of this title (relating to Form and Filing of Tariffs). Special telephone tariff 
filings shall be those applications filed by telecommunications utilities 
pursuant to sec.sec.23.25, 23.26, 23.27 or 23.28 of this title (relating to 
Rates) or PURA, sec.43A or sec.43B. This section shall apply unless it is 
inconsistent with Chapter 23 of this title, or PURA. 
   
  (b) Standards for Docketing. Tariff filings, other than a tariff filing made 
in compliance with a rule or final order of the commission, shall be docketed 
under the following circumstances: 
 
  (1) if an electric or regular telephone tariff filing would change the 
revenues received by the utility for an existing service; 
   
  (2) if an electric or regular telephone tariff filing would allow the utility 
to begin charging for a service previously available but for which there was not 
a separate charge; 
   
  (3) if an electric or regular telephone tariff filing would eliminate an 
existing service to which one or more customers actually subscribe; 
   
  (4) if an electric or regular telephone tariff filing would increase a 
customer's bill even though the rate for a particular service is not being 
changed; 
   
  (5) if the commission's staff recommends docketing, or if the commission's 
staff recommends disapproval or approval with modification and the utility 
requests a hearing; 
   
  (6) if the commission receives a request to intervene; 
   
  (7) if the fairness of the tariff filing or its compliance with law or a 
Commission policy adopted in an open meeting is questionable; or 
   
  (8)  if the tariff filing poses a difficult or unusual policy question or a 
controversial topic of significant public interest. 
     
  (c) Effective Date. Except for tariffs required to be filed pursuant to a 
commission rule specifying the effective date of such tariffs and for tariffs 
filed in compliance with a final order of the commission, no electric or regular 
telephone tariff filing may take effect prior to 35 days after filing unless 
approved by the presiding examiner. The requested effective date will be assumed 
to be 35 days after filing unless the applicant requests a different date in its 
application. The presiding examiner may suspend the operation of the electric or 
regular telephone tariff filing for 150 days beyond the effective date, or, with 
the agreement of the applicant, to a later date. 
   
  (d) Duties of Presiding Examiner. The presiding examiner may establish 
reasonable deadlines for comments or recommendations, may issue other orders as 
necessary to facilitate the processing of the tariff filing, and shall issue a 
notice of approval, approval with modification, denial, or docketing. 
   
  (e) Appeal of Interim Orders and Notices of Docketing. Interim orders and 
notices of docketing regarding tariff filings shall be appealable to the 
Commission pursuant to sec.22.123 of this title (relating to Appeal of an 
Interim Order). 
   
  (f) Effect of Notices of Approval, Approval with Modification, and Denial. A 
notice of approval, approval with modification, or denial of a tariff filing 
shall be the final determination of the commission regarding the tariff filing, 
and shall be subject to motions for rehearing pursuant to sec.22.264 of this 
title (relating to Rehearing). 
 
     
  sec.22.34. Consolidation and Severance. 
 
  (a) Consolidation. A motion for consolidation of proceedings shall be in 
writing. With prior notice to the parties, the presiding examiner may order the 
consolidation of proceedings on his or her own initiative. Proceedings may be 
consolidated if the presiding examiner finds that: the proceedings involve 
common questions of law or fact; consolidation would serve the interest of 
efficiency or prevent unwarranted expense and delay; and, the applicant's 
ability to present its case and other parties' ability to respond to the 
applicant's case are not unduly prejudiced. Proceedings shall be consolidated if 
requested based on the agreement of all parties, and if such consolidation would 
not unreasonably curtail the time available to process one or more of the 
proceedings proposed for consolidation. 
   
  (b) Severance. A motion for severance of a proceeding or issue within a 
proceeding shall be in writing. With prior notice to the parties, the presiding 
examiner may order the severance of proceedings on his or her own initiative. 
Proceedings or issues may be severed if the presiding examiner finds that 
severance would serve the interest of efficiency or prevent unwarranted expense 
and delay; and the applicant's ability to present its case and other parties' 
ability to respond to the applicant's case would not be unduly prejudiced. 
Proceedings or issues within a proceeding shall be severed if requested based on 
the agreement of all parties. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320984 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter D. Notice 
 
  16 TAC sec.sec.22.51-22.56 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.51. Notice for Public Utility Regulatory Act sec.43 and sec.42 
Proceedings. 
 
  (a) Notice in a PURA, sec.43 Proceeding Seeking a Rate Increase. In 
proceedings under PURA, sec.43 involving the commission's original jurisdiction 
over a utility's proposed increase in rates, the applicant shall give notice in 
the following manner. 
 
  (1) Publication of Notice. The applicant shall publish notice of its statement 
of intent to change rates in conspicuous form and place at least once a week for 
four consecutive weeks prior to the effective date of the proposed rate change, 
in a newspaper having general circulation in each county containing territory 
affected by the proposed rate change. The published notice shall contain the 
following information: 
 
  (A)  the effect the proposed change is expected to have on the revenues of the 
company, expressed as an annual dollar increase over adjusted test year revenues 
and as a percent increase over adjusted test year revenues; 
   
  (B)  the effective date of the proposed rate change; 
   
  (C) the classes and numbers of utility customers affected by the rate change; 
   
  (D) a description of the service for which a change is requested; 
   
  (E)  whenever possible, the established intervention deadline; and 
   
  (F)  the following language: "Persons who wish to intervene in or comment upon 
these proceedings should notify the commission as soon as possible, as an 
intervention deadline will be imposed. A request to intervene or for further 
information should be mailed to the Public Utility Commission of Texas, 7800 
Shoal Creek Boulevard, Austin, Texas 78757. Further information may also be 
obtained by calling the Public Utility Commission's Public Information Office at 
(512) 458-0256, or (512) 458-0221 for text telephone. The deadline for 
intervention in the proceeding is 45 days after the date the application was 
filed with the commission." 
     
  (2) Notice By Mail. The applicant shall mail notice of its statement of intent 
to change rates to all of the applicant's affected customers. This notice may be 
mailed separately or may be mailed with customer billings. At the top of this 
notice, the following language shall be printed in prominent lettering: "Notice 
of Rate Change Request." The notice must meet the requirements of paragraph (1) 
of this subsection. Whenever possible, the established intervention deadline 
shall be included in the notice. 
   
  (3) Notice to Municipalities. The applicant shall mail or deliver a copy of 
the statement of intent to the appropriate officer of each affected municipality 
at least 35 days prior to the effective date of the proposed rate change. 
     
  (b) Notice in a PURA, sec.43 Proceeding Seeking a Rate Decrease. In 
proceedings initiated pursuant to PURA, sec.43 in which a rate reduction that 
does not involve a rate increase for any customer is sought, the applicant shall 
give notice in the following manner. 
 
  (1) Publication not Required. The applicant may not be required to publish 
notice of its statement of intent to change rates in any newspaper when the 
utility is seeking to reduce rates for all affected customers. 
   
  (2) Notice by Mail to Affected Customers. The applicant shall mail notice of 
the proposed rate decrease to all of the applicant's affected customers. This 
notice may be mailed separately or may be mailed with customer billings. At the 
top of this notice, the following language shall be printed in prominent 
lettering: "Notice of Rate Decrease Request." The notice shall contain the 
following information: 
 
  (A) the effect the proposed change is expected to have on the revenues of the 
applicant, expressed as an annual dollar decrease from adjusted test year 
revenues and as a percent decrease from adjusted test year revenues; 
   
  (B) the effective date of the proposed rate decrease; 
   
  (C) the classes and numbers of utility customers affected by the rate 
decrease; 
   
  (D) a description of the service for which a rate change is requested; 
   
  (E) whenever possible, the established intervention deadline; and 
   
  (F) the following language: "Persons who wish to intervene or comment upon 
these proceedings should notify the commission as soon as possible, as an 
intervention deadline will be imposed. A request to intervene or for further 
information should be mailed to the Public Utility Commission of Texas, 7800 
Shoal Creek Boulevard, Austin, Texas 78757. Further information may also be 
obtained by calling the Public Utility Commission's Public Information Office at 
(512) 458-0256, or (512) 458-0221 for text telephone. The deadline for 
intervention in the proceeding is 45 days after the date the application was 
filed with the commission." 
     
  (3) Notice to Municipalities. The applicant shall mail or deliver a copy of 
the statement of intent to the appropriate officer of each affected municipality 
at least 35 days prior to the effective date of the proposed rate decrease. 
     
  (c) Notice in a PURA, sec.42 Rate Investigation. In an investigation into a 
utility's rates pursuant to PURA,  s42, the presiding examiner may require the 
utility under investigation to provide reasonable notice to its customers and 
affected municipalities. Reasonable notice may include notice of the type set 
forth in subsection (a) of this section. 
   
  (d) Affidavits Regarding Notice. The applicant shall submit affidavits 
attesting to the provision of the notice required or ordered pursuant to this 
section within a reasonable time and by such date as may be established by the 
presiding examiner. 
 
  (1) Publisher's Affidavits. Proof of publication of notice shall be made in 
the form of a publisher's affidavit which shall specify the newspaper(s) in 
which the notice was published; the county or counties in which the newspaper(s) 
is or are of general circulation; and the dates upon which the notice was 
published. 
   
  (2) Affidavit for Notice to Affected Customers. If notice to affected 
customers has been provided, an affidavit attesting to the provision of notice 
to affected customers shall specify the dates of the provision of such notice; 
the means by which such notice was provided; and the number of affected customer 
classes to which such notice was provided. 
   
  (3) Affidavit for Notice to Municipality. An affidavit attesting to the 
provision of notice to municipalities shall specify the dates of the provision 
of notice and the identity of the individual cities to which such notice was 
provided. 
 
       
  sec.22.52. Notice in Licensing Proceedings. 
 
  (a) Notice in Electric Licensing Proceedings. In all electric licensing 
proceedings except minor boundary changes and notice of intent and certification 
proceedings for new electric generating plants, the applicant shall give notice 
in the following ways. 
 
  (1) Applicant shall publish notice of the applicant's intent to secure a 
certificate of convenience and necessity in a newspaper having general 
circulation in the county or counties where a certificate of convenience and 
necessity is being requested, once each week for two consecutive weeks beginning 
with the week after the application is filed with the commission. This notice 
shall identify in general terms the type of facility if applicable, and the 
estimated expense associated with the project. The notice shall further describe 
in clear, precise language the geographic area for which the certificate is 
being requested and the location of all preferred and alternative routes of the 
proposed facility. This description should refer to area landmarks, including, 
but not limited to, geographic landmarks, municipal and county boundary lines, 
streets, roads, highways, railroad tracks, and any other readily identifiable 
points of reference. The notice shall also include the following statement: 
"Persons with questions about this project should contact (name of utility 
contact) at (utility contact telephone number). Persons who wish to intervene in 
the proceeding or comment upon action sought, should contact the Public Utility 
Commission of Texas, at 7800 Shoal Creek Boulevard, Austin, Texas 78757, or call 
the Public Utility Commission Public Information Office at (512) 458-0256 or 
(512) 458-0221 for the text telephone. The deadline for intervention in the 
proceeding is 70 days after the date the application was filed with the 
commission." Proof of publication of notice shall be in the form of a 
publisher's affidavit which shall specify the newspaper(s) in which the notice 
was published; the county or counties in which the newspaper(s) is or are of 
general circulation; and the dates upon which the notice was published. Proof of 
publication shall be submitted to the commission as soon as available. 
   
  (2) Applicant shall, upon or before filing an application, also mail notice of 
its application, which shall contain the information as set out in paragraph (1) 
of this subsection and a map which clearly and conspicuously illustrates the 
location of the area for which the certificate is being requested, including the 
preferred location and any alternative locations of the proposed facility, to 
cities and neighboring utilities providing the same utility service within five 
miles of the requested territory or facility. Applicant shall also provide 
notice to the county government(s) of all counties in which any portion of the 
proposed facility or requested territory is located. The notice provided to 
county government(s) shall be identical to that provided to cities and 
neighboring utilities. An affidavit attesting to the provision of notice to 
counties shall specify the dates of the provision of notice and the identity of 
the individual counties to which such notice was provided. Before final approval 
of any modification in the applicant's proposed route(s), applicant shall 
provide notice as required under this paragraph to cities, neighboring utilities 
and county governments who have not already received such notice. 
   
  (3) Applicant shall, upon or before filing an application, mail notice of its 
application to the owners of land, as stated on the current county tax roll(s), 
who would be directly affected by the requested certificate, including the 
preferred location and any alternative location of the proposed facility. The 
notice must contain all information required in paragraph (1) of this subsection 
and a clear and conspicuous statement that the owner's land may be directly 
affected by the preferred route or one of the alternative routes if the 
certificate is granted. A map which clearly and conspicuously illustrates the 
preferred and any alternative locations of the facility proposed in the 
application shall be included. Applicants may provide either a map of the entire 
proposed route or maps for each county. Before final approval of any 
modification in the applicant's proposed route(s), applicant shall provide 
notice as required under this paragraph to all directly affected landowners who 
have not already received such notice. For the purposes of this paragraph, land 
is directly affected if an easement would be obtained over all or a portion of 
it, or if it contains a habitable structure that would be within 200 feet of the 
proposed facility. Proof of notice may be established by an affidavit affirming 
that the applicant sent notice by first-class mail to each of the persons listed 
as an owner of directly affected land on the current county tax roll(s). Upon 
the filing of such proof, the lack of actual notice to any individual landowner 
will not in and of itself support a finding that the requirements of this 
paragraph have not been satisfied. 
   
  (4) Failure to provide notice in accordance with this section shall be cause 
for day-for-day extension of deadlines for intervention and for commission 
action on the application. 
     
  (b) Notice by Applicants for New Electric Generating Plant. Persons planning 
to apply for a certificate of convenience and necessity for a new electric 
generating plant shall file a notice of such intent with the commission pursuant 
to PURA, sec.54(d). Applicants for new electric generating plants shall give 
notice in the following ways. 
 
  (1)  Applicants for a Notice of Intent shall provide notice of the application 
by publishing in a newspaper having general circulation in the county or 
counties in which the generating plant will be located, if known, and in each 
county containing territory served by the utility, once each week for two 
consecutive weeks beginning the week after the notice of intent is filed with 
the commission. This notice shall identify the site of the facility, if known. 
This notice shall further identify in general terms the type of facility, 
including at a minimum the fuel to be used, basic technology, size of the plant 
and estimated service date, and the estimated expense associated with the 
project. The notice shall also include the following statement: "Persons with 
questions about this project should contact (name of utility contact) at 
(utility contact telephone number). Persons who wish to intervene in the 
proceeding or comment upon action sought should contact the Public Utility 
Commission Public Information Office at (512) 458-0256 or 458-0221 for the text 
telephone. The deadline for intervention in the proceeding is 70 days after the 
date the application was filed with the commission." Proof of publication of 
notice shall be in the form of a publisher's affidavit which shall specify the 
newspaper(s) in which the notice was published; the county or counties in which 
the newspaper(s) is or are of general circulation; and the dates upon which the 
notice was published. Proof of publication shall be submitted to the commission 
as soon as available. 
   
  (2) Applicants for a certificate of convenience and necessity for a new 
electric generating plant shall provide notice of the application by publishing 
in a newspaper having general circulation in the county or counties in which the 
generating plant will be located, and in each county containing territory served 
by the utility, once each week for two consecutive weeks beginning the week 
after the application is filed with the commission. Applicant shall also provide 
notice to the county government(s) of all counties in which any portion of the 
proposed facility or requested territory is located. This notice shall contain 
the same information as required in paragraph (1) of this subsection. Failure to 
provide notice in accordance with this section shall be cause for day-for-day 
extension of deadlines for intervention. Proof of publication of notice shall be 
in the form of a publisher's affidavit which shall specify the newspaper(s) in 
which the notice was published; the county or counties in which the newspaper(s) 
is or are of general circulation; and the dates upon which the notice was 
published. Proof of publication shall be submitted to the commission as soon as 
available. 
     
  (c) Notice in Telephone Licensing Proceedings. In all telephone licensing 
proceedings, except minor boundary changes, the applicant shall give notice in 
the following ways. 
 
  (1)  Applicant shall publish in a newspaper having general circulation in the 
county or counties where a certificate of convenience and necessity is being 
requested, once each week for two consecutive weeks, beginning the week after 
the application is filed, notice of the applicant's intent to secure a 
certificate of convenience and necessity. This notice shall identify in general 
terms the types of facilities, if applicable, the area for which the certificate 
is being requested, and the estimated expense associated with the project. The 
notice shall also include the following statement: "Persons with questions about 
this project should contact (name of utility) at (utility contact telephone 
number). Persons who wish to intervene in the proceeding or comment upon action 
sought, should contact the Public Utility Commission at 7800 Shoal Creek 
Boulevard, Austin, Texas 78757, or call the Public Utility Commission Public 
Information Office at (512) 458-0256, or (512) 458-0221 for the text telephone. 
The deadline for intervention in the proceeding is 70 days after the date the 
application was filed with the commission." Proof of publication of notice shall 
be in the form of a publisher's affidavit which shall specify the newspaper(s) 
in which the notice was published; the county or counties in which the 
newspaper(s) is or are of general circulation; and the dates upon which the 
notice was published. Proof of publication shall be submitted to the commission 
as soon as available. 
   
  (2) Applicant shall also mail notice of its application, which shall contain 
the information as set out in paragraph (1) of this subsection, to cities and 
neighboring utilities providing the same service within five miles of the 
requested territory or facility. Applicant shall also provide notice to the 
county government of all counties in which any portion of the proposed facility 
or territory is located. The notice provided to county governments shall be 
identical to that provided to cities and to neighboring utilities. An affidavit 
attesting to the provision of notice to counties shall specify the dates of the 
provision of notice and the identity of the individual counties to which such 
notice was provided. 
   
  (3) Failure to provide notice in accordance with this section shall be cause 
for day-for-day extension of deadlines for intervention. 
 
       
  sec.22.53. Notice of Regional Hearings. The presiding examiner may require the 
utility that is the subject of a proceeding to publish conspicuous notice of a 
regional hearing in newspapers of general circulation in the general area of the 
hearing and to provide other reasonable notice to customers and affected 
municipalities. 
 
   
  sec.22.54. Notice To Be Provided by the Commission. 
 
  (a) Notice in Original or Appellate Jurisdiction Proceedings. In any 
proceeding, other than a petition for rulemaking, invoking the commission's 
original or appellate jurisdiction, the commission shall provide notice in 
accordance with APTRA in addition to any other notice required by law. Ten days' 
notice shall be given of the initial prehearing conference in a proceeding. 
After the initial prehearing conference, reasonable notice of subsequent 
prehearing conferences may be provided on the record in a prehearing conference 
or by written notice to the parties. 
   
  (b) Notice in Rulemaking Proceedings. The commission shall provide notice of 
the proposed adoption of any rule pursuant to APTRA, sec.5. 
 
     
  sec.22.55. Notice in Other Proceedings. In proceedings other than those 
governed by sec.sec.22.51, 22.52, and 22.53 of this title (relating to Notice), 
the presiding examiner may require a party to provide reasonable notice to 
affected persons. 
 
   
  sec.22.56. Notice of Unclaimed Funds. The applicant shall notify the State 
Treasurer of proceedings in which there may be a specific amount of money to be 
refunded to ratepayers who may need to be located. This rule shall not apply in 
fuel refund proceedings. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320985 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter E. Pleadings 
 
  16 TAC sec.sec.22.71-22.80 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.71. Filing of Pleadings and Other Materials. 
 
  (a) File with the Commission Filing Clerk. All pleadings, rate filing 
packages, written testimony, and any other document required to be filed with 
the commission shall be filed with the commission filing clerk, and shall state 
the control number on the heading, if known. 
   
  (b) Number of Documents to be Filed. Unless otherwise provided by this chapter 
or ordered by the presiding examiner, the number of documents to be filed are as 
follows: 
 
  (1) exceptions, replies, interim appeals, requests for oral argument, and 
other documents addressed to the commissioners: 18 copies; 
   
  (2) testimony and briefs: 16 copies; 
   
  (3) rate filing package: 16 copies; 
   
  (4) applications for certificates of convenience and necessity: four copies; 
   
  (5) discovery requests and responses: five copies; and 
   
  (6) other pleadings and documents: eight copies. 
     
  (c) Receipt by the Commission. Pleadings and any other documents shall be 
deemed filed when the proper number of legible copies are presented to the 
commission filing clerk for filing. The commission filing clerk shall be 
required to accept pleadings and documents if the person seeking to make a 
filing is in the office of the commission filing clerk with the required number 
of copies by the time the pleading or document is required to be filed. 
   
  (d) No Filing Fee. No filing fee is required to file any pleading or other 
document with the commission. 
   
  (e) Office Hours of the Commission Filing Clerk. For the purpose of filing 
pleadings and other documents, including examiner's reports, the office hours of 
the commission filing clerk are from 8 a.m. to 5 p.m., Monday-Friday, on working 
days. 
   
  (f) Filing a Copy or Facsimile Copy in Lieu of an Original. Subject to the 
requirements of subsection (c) of this section, a copy of an original document 
or pleading, including a copy that has been transmitted through a telecopier, 
may be filed, so long as the party or the attorney filing such copy maintains 
the original for inspection by the commission or any party to the proceeding. 
   
  (g) Filing Deadline. All documents shall be filed by 3 p.m. on the date due, 
unless otherwise ordered by the presiding examiner. 
   
  (h) Filing Deadlines for Documents Addressed to Commissioners. 
 
  (1) Except as provided in paragraph (2) of this subsection, all documents 
addressed to the commissioners relating to any proceeding that has been placed 
on the agenda of a final order meeting shall be filed with the commission filing 
clerk no later than 11 a.m., two working days prior to the final order meeting 
at which the proceeding will be considered provided that no party is prejudiced 
by the timing of the filing of the documents. Documents that are not filed 
before the deadline and do not meet one of the exceptions in paragraph (2) of 
this subsection, will be considered untimely filed. 
   
  (2) The deadline established in paragraph (1) of this subsection does not 
apply if: 
 
  (A) the documents have been specifically requested by one of the 
commissioners; 
   
  (B) the parties are negotiating and such negotiation requires the late filing 
of documents; or 
   
  (C) good cause for the late filing exists. Good cause must clearly appear from 
specific facts shown by written pleading that compliance with the deadline was 
not reasonably possible and that failure to meeting the deadline was not the 
result of the negligence of the party. The finding of the existence of good 
cause lies within the discretion of the commission. 
 
         
  sec.22.72. Formal Requisites of Pleadings To Be Filed with the Commission. 
 
  (a) Requirements of Form. 
 
  (1) Unless otherwise authorized or required by the presiding examiner, filings 
shall be typewritten or printed on paper measuring approximately 8 1/2 by 11 
inches; shall include the style and number of the docket or project in which 
they are submitted, if available; shall identify by heading the nature of the 
pleading submitted and the name of the party submitting the same; and shall be 
signed by the party, or the party's authorized representative. 
   
  (2) Any log, graph, map, drawing, or chart submitted as part of a filing will 
be accepted on paper larger than provided in paragraph (1) of this subsection, 
if it cannot be provided legibly on letter-size paper. 
     
  (b) Format. Any filing with the Commission must: 
 
  (1) have double-spaced print with left margins not less than 1 1/2 inch wide, 
except that any tariff or rate filing may be single-spaced; 
   
  (2) indent and single-space any quotation which exceeds 50 words; 
   
  (3) be bound or stapled at the left side only, if the filing exceeds one page; 
and 
   
  (4) be printed in not less than 10-point type with double-leaded test and 
single-leaded quotations, if the filing is printed. 
     
  (c) Citation form. Any filing with the Commission should comply with the rules 
of citation, except Rule 1.1, set forth in the most current edition of A Uniform 
System of Citation<ol>, published by The Harvard Law Review Association. 
   
  (d) Signature. Every pleading shall be signed by the party or the party's 
authorized representative, and shall include the party's address, telephone 
number, and, if available, telecopier number. If the person signing the pleading 
is an attorney licensed in Texas, the attorney's State bar number shall be 
provided. 
   
  (e) Page Limits. In major rate proceedings, proceedings initiated pursuant to 
PURA, sec.42, fuel reconciliations, market dominance proceedings, petitions to 
declare a market subject to significant competition, and applications for 
licensing of new generating plant, except for testimony and rate filing 
packages, no pleading shall exceed 100 pages in length, including attachments. 
In all other dockets, no pleading shall exceed 50 pages in length, including 
attachments. The page limitation shall not apply to courtesy copies of legal 
authorities cited in the pleading. A presiding examiner may for good cause enter 
a timely order establishing a larger or smaller page limit. In considering a 
request for a good cause exception, the presiding examiner shall consider such 
factors as which party has the burden of proof and the extent of opposition to a 
party's position that would need to be addressed in the pleading. 
   
  (f) Transmittal Letters. Transmittal letters may be attached to pleadings or 
any other document filed with the commission. If transmittal letters are 
submitted, they shall be considered part of the record. 
 
     
  sec.22.73. Contents of Pleadings, Generally. 
 
  (a) General Requirements For Applications. In addition to the requirements of 
form specified in sec.22.72 of this title (relating to Formal Requisites of 
Pleadings To Be Filed with the Commission), all applications shall contain the 
following, unless otherwise required by statute or commission rule: 
 
  (1)  a statement of the jurisdiction of the commission over the parties and 
subject matter; 
   
  (2) a list of all the known parties, classes of customers, and territories, if 
applicable, which would be affected if the requested relief were granted; 
   
  (3) the name and address of each party against whom specific relief is sought; 
   
  (4) a concise statement of the facts relied upon by the pleading party; 
   
  (5) a concise statement of the specific relief, action, or order desired by 
the pleading party; 
   
  (6) any other matter required by statute or rule; and 
   
  (7) a certificate of service. 
     
  (b) Support By Affidavit. Pleadings containing allegations of fact not 
supported by the record shall be supported by affidavit. 
 
     
  sec.22.74. Service of Pleadings. 
 
  (a) Pleadings Submitted to a Presiding Examiner. At or before the time any 
document or pleading regarding a proceeding is submitted by a party to a 
presiding examiner, a copy of such document or pleading shall be filed with the 
commission filing clerk and served on all parties. These requirements do not 
apply to documents which are offered into evidence during a hearing or which are 
submitted to a presiding examiner for in camera<ol> inspection; provided, 
however, that the party submitting documents for  in camera<ol> inspection shall 
file and serve notice of the submission upon the other parties to the 
proceeding. Pleadings submitted to a presiding examiner during a hearing, 
prehearing conference, or open meeting shall be filed with the commission filing 
clerk as soon as is practicable. 
   
  (b) Methods of Service. Except as otherwise expressly provided by order, rule, 
or other applicable law, service on a party may be made by delivery of a copy of 
the pleading or document to the party's authorized representative or attorney of 
record either in person; by agent; by courier receipted delivery; by first class 
mail; by certified mail, return receipt requested; or by registered mail to such 
party's address of record, or by facsimile transmission to the recipient's 
current telecopier number or facsimile transfer machine. Service by mail shall 
be complete upon deposit of the document, enclosed in a wrapper properly 
addressed, stamped and sealed, in a post office or official depository of the 
United States Postal Service. Service by agent or by courier receipted delivery 
shall be complete upon delivery to the agent or courier. Service by facsimile 
transmission shall be complete upon actual receipt by the recipient's telecopier 
or facsimile transfer machine. 
   
  (c) Evidence of Service. A return receipt or affidavit of any person having 
personal knowledge of the facts shall be prima facie evidence of the facts shown 
thereon relating to service. A party may present other evidence to demonstrate 
facts relating to service. 
   
  (d)  Certificate of Service. Every document required to be served on all 
parties pursuant to subsection (a) of this section shall contain the following 
or similar certificate of service: "I, (name) (title) certify that a copy of 
this document was served on all parties of record in this proceeding on (date) 
in the following manner: (specify method). Signed, (signature)". The certificate 
of service shall include a list of the parties, unless otherwise ordered by the 
presiding examiner. 
 
     
  sec.22.75. Examination and Correction of Pleadings. 
 
  (a)  Construction of Pleadings. All pleadings shall be construed so as to do 
substantial justice. 
   
  (b) Procedural Sufficiency of Pleadings. Any pleading that does not comply in 
all material respects with this chapter, shall nevertheless be conditionally 
accepted for filing. Upon notification by the presiding examiner of a deficiency 
in pleadings, the pleading party shall correct or complete the pleading in 
accordance with the notification. If the pleading party fails to correct the 
deficiency, the pleading may be stricken from the record. 
   
  (c) Notice of Material Deficiencies in Rate Change Applications. This 
subsection applies to applications for rate changes filed pursuant to PURA, 
sec.43. 
 
  (1) Motions to find a rate change application materially deficient shall be 
filed no later than 21 days after an application is filed. Such motions shall 
specify the nature of the deficiency and the relevant portions of the 
application, and cite the particular requirement with which the application is 
alleged not to comply. The applicant's response to a motion to find a rate 
change application materially deficient shall be filed no later than five 
working days after such motion is received. 
   
  (2) If within 35 days after filing of a rate change application, the presiding 
examiner has not issued a written order concluding that material deficiencies 
exist in the application, the application shall be deemed sufficient. 
   
  (3) If the presiding examiner determines that material deficiencies exist in 
an application, the presiding examiner shall issue a written order within 35 
days of the filing of the application specifying a time within which the 
applicant shall amend its application and correct the deficiency. The effective 
date of the proposed change will be 35 days after the filing of a sufficient 
application. The statutory deadlines shall be calculated based on the date of 
filing the sufficient application. 
     
  (d) Notice of Material Deficiencies in Applications For Certificates of 
Convenience and Necessity for Transmission Lines. This subsection applies to 
applications for certificates of convenience and necessity for transmission 
lines. 
 
  (1) Motions to find an application for certificate of convenience and 
necessity for transmission line materially deficient shall be filed no later 
than 60 days after an application is filed. Such motions shall specify the 
nature of the deficiency and the relevant portions of the application, and cite 
the particular requirement with which the application is alleged not to comply. 
The applicant's response to a motion to find an application for certificate of 
convenience and necessity for transmission line materially deficient shall be 
filed no later than 15 days after such motion is received. 
   
  (2) If, within 90 days after filing of an application for certificate of 
convenience and necessity for transmission line, the presiding examiner has not 
issued a written order concluding that material deficiencies exist in the 
application, the application shall be deemed sufficient. 
   
  (3)  If the presiding examiner determines that material deficiencies exist in 
an application, the presiding examiner shall issue a written order within 90 
days of the filing of the application specifying a time within which the 
applicant shall amend its application and correct the deficiency. Any statutory 
deadlines shall be calculated based on the date of filing the sufficient 
application. 
     
  (e) Additional Requirements. Additional requirements as set forth in sec.22.76 
of this title (relating to Amended Pleadings) apply. 
 
     
  sec.22.76. Amended Pleadings. 
 
  (a) Filing Amended Pleadings. Any pleading may be amended at any time before 
notice of the docket as required by sec.22.51 and sec.22.52 of this title 
(relating to Notice) is given. After notice of a proceeding has been provided, a 
pleading may be amended with leave of the presiding examiner, provided that the 
amended pleading is served upon all parties, is filed at least seven days before 
the hearing on the merits, and does not seek relief for which notice in 
accordance with this chapter has not been provided. If an amended pleading seeks 
a new type of relief for which notice in accordance with this chapter has not 
been provided, the presiding examiner may sever the issue from the proceeding. 
Any pleading offered for filing within seven days of the date of hearing or 
thereafter will be considered by the presiding examiner only if there is a 
showing of good cause for such filing and that consideration of such filing will 
not unduly delay the proceeding by injecting issues to which the remaining 
parties may be entitled to respond. If additional notice is required or 
additional time needed for opposing parties to respond to proposed pleadings, 
the presiding examiner may order such additional notice or time as is reasonable 
under the circumstances. 
   
  (b) Amendments to Conform to Issues Tried at Hearing Without Objection. When 
issues not raised by the pleadings are tried or otherwise heard or argued at 
hearing by express consent of the parties or implied consent of the parties, 
upon a determination by the presiding examiner that no prejudice to any of the 
parties will occur, the issues shall be treated in all respects as if they had 
been raised in the pleadings. Amendment of the pleadings to conform them to the 
evidence may be made with leave of the presiding examiner upon any party's 
motion until the close of evidence, but failure to so amend shall not affect 
whether the issues may be properly considered by the presiding examiner. 
 
     
  sec.22.77. Motions. 
 
  (a) General Requirements. A motion shall be in writing, unless the motion is 
made on the record at a prehearing conference or hearing. It shall state the 
relief sought and the specific grounds supporting a grant of relief. If the 
motion is based upon alleged facts that are not a matter of record, the motion 
shall be supported by an affidavit. Written motions shall be served on all 
parties in accordance with sec.22.74 of this title (relating to Service of 
Pleadings). 
   
  (b) Time for Response. The time for responding to motions is governed by 
sec.22.78 of this title (relating to Responsive Pleadings and Emergency Action), 
unless otherwise provided by the presiding examiner, commission rule, or 
statute. 
   
  (c) Rulings on Motions. The presiding examiner shall serve orders ruling on 
motions upon all parties, unless the ruling is made on the record in a hearing 
or prehearing conference open to the public. 
 
     
  sec.22.78. Responsive Pleadings and Emergency Action. 
 
  (a)  General Rule. Unless otherwise specified by statute, by this chapter, or 
by order of the presiding examiner, a responsive pleading, if made, shall be 
filed by a party within five working days after receipt of the pleading to which 
the response is made. 
   
  (b) Responses to Complaints. Unless otherwise specified by statute, by this 
chapter, or by order of the presiding examiner, responsive pleadings to 
complaints filed to initiate a proceeding need not be filed by the respondent. 
This subsection does not apply to complaints filed pursuant to PURA, sec.42. 
   
  (c) Emergency Action. Unless otherwise precluded by law or this chapter, the 
presiding examiner may take action on a pleading before the deadline for filing 
responsive pleadings when necessary to prevent or mitigate imminent harm or 
injury to persons or to real or personal property. Action taken pursuant to this 
subsection is subject to modification based on a timely responsive pleading. 
   
  (d) Section 42 Investigations or Complaints. In a complaint proceeding filed 
pursuant to PURA, sec.42, the presiding examiner shall determine the scope of 
the response that the utility shall be required to file, up to and including the 
filing of a full rate filing package. The examiner shall also set an appropriate 
deadline for the utility's response. In no event shall the deadline for filing a 
response be less than 120 days if a full rate filing package is required, or 
less than 30 days if a full rate filing package is not required. 
 
     
  sec.22.79. Continuances.  Unless otherwise ordered by the presiding examiner, 
motions for continuance shall be in writing and shall be filed not less than 
five days prior to the hearing or other deadline for acts required or allowed to 
be done. Motions for continuance shall set forth the specific grounds for which 
the moving party seeks continuance and shall make reference to all other motions 
for continuance filed by the moving party in the proceeding. The moving party 
shall attempt to contact all other parties and shall state in the motion each 
party that was contacted and whether that party objects to the relief requested. 
The moving party shall have the burden of proof with respect to the need for the 
continuance at issue. Continuances will not be granted on the need for discovery 
if the party seeking the continuance previously had the opportunity to obtain 
discovery from the person from whom discovery is sought, except when necessary 
due to surprise or discovery of facts or evidence which could not have been 
discovered previously through reasonably diligent effort by the moving party. 
The presiding examiner shall grant continuances agreed to by all parties 
provided that any applicable statutory deadlines are extended as may be 
necessary. Nothing in this section precludes parties who have issued or who are 
responding to discovery requests from agreeing to extensions of time to respond 
or to object to the discovery. 
 
   
  sec.22.80. Commission Prescribed Forms. The commission may require that 
certain reports and applications be submitted on standard forms. The commission 
filing clerk shall maintain a complete index to and set of all commission forms. 
All pleadings that are the subject of an official form shall contain all matters 
designated in the official form and shall conform substantially to the official 
form. Prior to the implementation of any new form or significant change to an 
existing form, the change or new form shall be referenced in the "In Addition 
Section" of the Texas Register<ol> for public comment. For good cause, new forms 
or significant changes to existing forms may be implemented on an interim basis 
without publication for a period not to exceed 180 days. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320986 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter F. Parties 
 
  16 TAC sec.sec.22.101-22.105 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.101. Representative Appearances. 
 
  (a) Generally. Any person may appear before the commission or in a hearing in 
person or by authorized representative. The presiding examiner may require a 
representative to submit proof of his or her authority to appear on behalf of 
another person. The authorized representative of a party shall specify the 
particular persons or classes of persons the representative is representing in 
the proceeding. 
   
  (b) Lead Counsel. A party represented by more than one attorney or authorized 
representative in a matter before the commission may be required to designate a 
lead counsel who is authorized to act on behalf of all of the party's 
representatives, but all other attorneys or authorized representatives for the 
party may take part in the proceeding in an orderly manner, as ordered by the 
presiding examiner. 
 
     
  sec.22.102. Classification of Parties. 
 
  (a) Parties. Parties to proceedings before the commission shall be classified 
into the following categories: 
 
  (1) applicants, or complainants; 
   
  (2) respondents; 
   
  (3) intervenors; and 
   
  (4) general counsel. 
     
  (b)  Rights of Parties. Subject to the alignment of parties pursuant to 
sec.22. 105 of this title (relating to Alignment of Parties), parties to 
proceedings have the right to present a direct case, cross-examine all 
witnesses, conduct discovery, make oral or written legal arguments, and 
otherwise fully participate in any proceeding. The general counsel shall have no 
right to seek judicial review of any commission decision. 
   
  (c) Protestants. Any person that has not intervened in a proceeding, or who 
has been denied permission to intervene, shall not be considered a party. The 
presiding examiner may allow oral or written comments to be made by protestants. 
 
     
  sec.22.103. Standing to Intervene. 
 
  (a) General Counsel. The general counsel shall have standing in all 
proceedings before the commission, and need not file a notice of intervention. 
   
  (b) Standing to Intervene of Certain Persons. A person specified in this 
subsection has standing to intervene in certain commission proceedings as set 
forth in this section. In proceedings in which such person has standing and 
wishes to participate, the person shall file a notice of intervention within 45 
days from the date an application is filed with the commission, unless otherwise 
provided by statute, commission rule or order of the presiding examiner. A 
person that has standing to intervene but fails to timely file a notice of 
intervention may move to intervene pursuant to sec.22.104(d) of this title 
(relating to Motions to Intervene). 
 
  (1) Municipalities. A municipality shall have standing in all cases before the 
commission regarding utilities that provide service within the municipality's 
corporate limits or in any other case in which a statute confers a right to 
participate upon a municipality, subject to the right of the commission to 
determine standing in cases involving retail service area disputes involving two 
or more utilities and, as set forth in sec.22.105 of this title (relating to 
Alignment of Parties), to align municipalities for participation in hearings. In 
any other proceeding, a municipality must file a motion to intervene as set 
forth in sec.22.104 of this title. 
   
  (2) Office of Public Utility Counsel. The Office of Public Utility Counsel may 
appear or intervene in commission proceedings as provided in PURA, sec.15A. 
     
  (c) Standing to Intervene of Other Persons. Such persons must file a motion to 
intervene and be recognized as a party under sec.22.104 of this title in order 
to participate as a party in a commission proceeding. Any person not mentioned 
in subsection (b) of this section has standing to intervene if that person: 
 
  (1) has a right to participate which is expressly conferred by statute, 
commission rule or order or other law; or 
   
  (2) has a justiciable interest which may be directly affected by the outcome 
of the proceeding. 
 
       
  sec.22.104. Motions to Intervene. 
 
  (a) Necessity for Filing Motion to Intervene. Applicants, complainants, and 
respondents, as defined in sec.22.2 of this title (relating to Definitions), are 
necessary parties to proceedings which they have initiated or which have been 
initiated against them, and need not file motions to intervene or notices of 
intervention in order to participate as parties in such proceedings. 
   
  (b) Time for Filing Motion. Motions to intervene shall be filed within 45 days 
from the date an application is filed with the commission, unless otherwise 
provided by statute, commission rule, or order of the presiding examiner. The 
deadline for filing a motion to intervene in a licensing or notice of intent 
proceeding shall be 70 days after the application is filed. The motion shall be 
served upon all parties to the proceeding and upon all persons that have pending 
motions to intervene. 
   
  (c) Rights of Persons With Pending Motions to Intervene. Persons who have 
filed motions to intervene shall have all the rights and obligations of a party 
pending the presiding examiner's ruling on the motion to intervene. 
   
  (d) Late Intervention. 
 
  (1) A motion to intervene that was not timely filed may be granted. In acting 
on a late filed motion to intervene, the presiding examiner shall consider: 
 
  (A) any objections that are filed; 
   
  (B) whether the movant had good cause for failing to file the motion within 
the time prescribed; 
   
  (C) whether any prejudice to, or additional burdens upon, the existing parties 
might result from permitting the late intervention; 
   
  (D) whether any disruption of the proceeding might result from permitting late 
intervention; and 
   
  (E) whether the public interest is served by allowing the intervention. 
     
  (2) The presiding examiner may impose limitations on the participation of an 
intervenor to avoid delay and prejudice to the other parties. 
   
  (3) Except as otherwise ordered, an intervenor shall accept the procedural 
schedule and the record of the proceeding as it existed at the time of filing 
the motion to intervene. 
 
       
  sec.22.105. Alignment of Parties. Parties, except for the Office of Public 
Utility Counsel and the General Counsel, may be aligned for the purposes of 
participating in a hearing if the parties have the same positions on issues of 
fact or law. To the extent alignment is determined to be necessary, the 
presiding examiner shall order alignment of the parties at the earliest 
reasonable opportunity so as to avoid unnecessary duplication of effort and to 
allow aligned parties an adequate opportunity to prepare for hearing. The 
presiding examiner may limit the number of representatives of aligned parties 
who conduct cross-examination of any particular witness during the hearing on 
the merits. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320987 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter G. Prehearing Proceedings 
 
  16 TAC sec.sec.22.121-22.126 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.121. Prehearing Conferences. <ol> The presiding examiner shall schedule 
prehearing conferences as necessary for the efficient management of the 
proceeding. The presiding examiner shall conduct prehearing conferences for any 
appropriate purpose, including consideration of the following: 
 
  (1) motions and other preliminary matters related to the proceeding, including 
notice, discovery, and procedural schedules; 
   
  (2)  settlement of the case, or clarification and simplification of the 
issues; 
   
  (3) the necessity or desirability of amended pleadings; 
   
  (4)  the possibility of obtaining stipulations that would avoid the 
unnecessary introduction of evidence; 
   
  (5) evidentiary matters, including a request for interim relief; 
   
  (6) the specific procedures to be followed at the hearing; 
   
  (7) the scheduling of the hearing on the merits; and 
   
  (8) any other matters as may assist in the disposition of the proceeding in a 
fair and efficient manner. 
 
     
  sec.22.122. Interim Orders. 
 
  (a) In General. The presiding examiner shall issue interim orders covering 
procedural and discovery matters, requests for interim relief, and such other 
matters as may aid in the conduct of the hearing and the efficient and fair 
disposition of the proceeding. Interim orders may be written or stated orally on 
the record. 
   
  (b)  Interim and Bonded Rates. Interim and bonded rates are governed not by 
this section, but by sec.22.125 and  s22.126 of this title (relating to Interim 
Rate Relief; Bonded Rates). 
 
     
  sec.22.123. Appeal of an Interim Order. 
 
  (a) Availability of Appeal. Appeals are available for any order of the 
presiding examiner that immediately prejudices a substantial or material right 
of a party, or materially affects the course of the hearing, other than 
evidentiary rulings. Interim orders shall not be subject to exceptions or 
application for rehearing prior to issuance of an examiner's report. 
   
  (b) Procedure for Appeal. If the presiding examiner intends to reduce an oral 
ruling to a written order, the presiding examiner shall so indicate on the 
record at the time of the oral ruling and shall promptly issue the written 
order. Any appeal to the commission from an interim order shall be filed within 
10 days of the issuance of the written order or the appealable oral ruling. The 
appeal shall be served on all parties by hand delivery, facsimile transmission, 
or by overnight courier delivery. 
   
  (c) Contents. An appeal shall specify the reasons why the interim order is 
unjustified or improper. 
   
  (d) Responses. Any response to an appeal shall be filed within five working 
days of the filing of the appeal. 
   
  (e) Motion for Stay. Pending a ruling by the commissioners, the presiding 
examiner may, upon motion, grant a stay of the interim order. A motion for a 
stay shall specify the basis for a stay. Good cause shall be shown for granting 
a stay. The mere filing of an appeal shall not stay the interim order or the 
procedural schedule. 
   
  (f) Agenda Ballot. Upon filing of an appeal, the director of hearings shall 
send separate ballots to each commissioner to determine whether they will 
consider the appeal at an open meeting. The presiding examiner shall notify the 
parties by telephone and letter that a majority of the commission by individual 
ballot has added the appeal to a final order meeting agenda. 
   
  (g) Denial. If after 10 days of the filing of an appeal, the commissioners 
have not, by agenda ballot, placed the appeal on the agenda of an open meeting, 
the appeal is deemed denied. The commissioners shall rule on the interim order 
within 20 days of the filing of the appeal. If the commissioners do not rule on 
the appeal within 20 days of its filing, or extend the time for ruling, the 
interim order is deemed approved and any granted stay is lifted. 
   
  (h)  Reconsideration. The presiding examiner may treat an appeal as a motion 
for reconsideration and may withdraw or modify the order under appeal prior to a 
commission decision on the appeal. 
 
     
  sec.22.124. Prehearing Statements. 
 
  (a) Prehearing Statements Required. Each party shall file a prehearing 
statement no later than three days before the start of a hearing unless the 
presiding examiner determines that such a requirement would add unjustified 
burden and expense to the proceeding, or that a different deadline should be 
imposed. In accordance with sec.22.161 of this title (relating to Sanctions), 
the presiding examiner may, pursuant to sec.22.161 of this title, sanction any 
party who fails to comply with the requirement that a prehearing statement be 
filed. 
   
  (b)  Contents of Prehearing Statement. Unless otherwise provided by order of 
the presiding examiner, the prehearing statement shall contain the following 
information: 
 
  (1) a concise statement of the party's position in the proceeding; 
   
  (2) a concise statement of each question of fact, law, or policy the party 
considers at issue; 
   
  (3) a concise statement of the party's position on each issue identified 
pursuant to paragraph (2) of this subsection; 
   
  (4) a statement of issues that have been resolved by agreement of the parties, 
including agreements that do not include all parties; 
   
  (5) a statement of all pending motions or other matters upon which the party 
seeks action; 
   
  (6) a statement as to any requirement set forth in the prehearing order that 
cannot be complied with, and the reasons therefore; and 
   
  (7) such other information as will aid in achieving an orderly disposition of 
the proceeding. 
 
       
  sec.22.125. Interim Rate Relief. 
 
  (a) Availability. Interim rate relief is not available for tariff filings. 
   
  (b) Requests for Interim Rates. A request for interim rates shall be filed no 
later than 30 days before the interim rates are proposed to take effect, unless 
all parties agree to a later filing date. 
   
  (c) Consideration of Request for Interim Rates. Interim rate relief may be 
granted based on the agreement of all parties. The presiding examiner may, after 
notice and opportunity for hearing, grant a contested request for interim rate 
relief only on a showing of good cause. In determining whether good cause 
exists, the presiding examiner shall take into account: 
 
  (1) the utility's ability to anticipate the need for and obtain final approval 
of rate relief prior to the time relief is reasonably needed; 
   
  (2) other remedies, such as bonded rates, available under law; 
   
  (3) changed circumstances indicating that the utility's current rates may no 
longer be just and reasonable; 
   
  (4)  the effect of granting the request on the parties and the public 
interest; and 
   
  (5) any other relevant factors as determined by the presiding examiner. 
     
  (d) Standard and Burden of Proof. Pursuant to PURA,  s40, in any proceeding 
involving a proposed interim change in rates, the burden of proof to show that 
the proposed change, if proposed by the utility, or that the existing rate, if 
it is proposed to reduce the rate, is just and reasonable, shall be on the 
utility. In any proceeding at which a local exchange company's rate or rates are 
at issue, the burden of proof that such rate or rates are just and reasonable 
shall be on the local exchange company. 
   
  (e) Refunds and Surcharges. Interim rates shall be subject to refund or 
surcharge to the extent the rates ultimately established differ from the interim 
rates. 
 
     
  sec.22.126. Bonded Rates. <ol> During the pendency of its rate proceeding, a 
utility seeking to implement rates under bond pursuant to PURA, sec.43(e) shall 
file an original and 10 copies of its application for approval of bond at least 
two weeks prior to the date the bonded rates are to be effective. The 
application shall conform to the requirements of Subchapter E, regarding 
Pleadings. The bond shall be in an amount equal to or greater than one-sixth of 
the annual difference between the utility's current rates and the bonded rates. 
The bond must be approved by the director of hearings as to sufficiency based on 
the commission staff's review of the utility's application. Any decision by the 
director of hearings either approving or disapproving a bond is appealable to 
the commission pursuant to sec.22.123 of this title (relating to Appeal of an 
Interim Order). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320988 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter H. Discovery Procedures 
 
  16 TAC sec.sec.22.141-22.145 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.141. Forms and Scope of Discovery. 
 
  (a) Scope. Parties may obtain discovery regarding any matter, not privileged 
or exempted under the Texas Rules of Civil Evidence, the Texas Rules of Civil 
Procedure, or other law or rule, that is relevant to the subject matter in the 
proceeding. Discoverable matters include the existence, description, nature, 
custody, condition, location, and contents of any documents, including papers, 
books, accounts, drawings, graphs, charts, photographs, electronic or videotape 
recordings, and any other data compilations from which information can be 
obtained and translated, if necessary, by the person from whom information is 
sought, into reasonably usable form, and any other tangible things which 
constitute or contain matters relevant to the subject matter in the action, and 
the identity and location of persons having any knowledge of any discoverable 
matter. Discovery is not limited to tangible things, but may extend to 
knowledge, mental impressions, and opinions of persons who will testify; 
explanations of documents or tangible things, or information contained therein; 
and other relevant information within the knowledge or control of the entity 
from whom discovery is sought. A person is not required to produce a document or 
tangible thing unless it is within that person's constructive or actual 
possession, custody, or control. A person has possession, custody, or control of 
a document or tangible thing as long as the person has a superior right to 
compel the production from a third party and can obtain possession of the 
document or tangible thing with reasonable effort. 
   
  (b) Discovery Methods. Parties may obtain discovery by requests for 
information, which include requests for inspection or production of documents or 
things, requests for admissions, and depositions by oral examination. 
   
  (c) Stipulations Regarding Discovery Procedure. The parties may, by written 
agreement: 
 
  (1) provide that depositions may be taken at any time or place, upon any 
notice, and in any manner and when so taken may be used like other depositions; 
   
  (2) agree to extensions of time in which to respond to or object to a 
discovery request; and 
   
  (3) modify the procedures provided by this chapter for other methods of 
discovery. 
 
       
  sec.22.142. Limitations on Discovery and Protective Orders. 
 
  (a)  Limitation of Discovery Requests. The presiding examiner may limit 
discovery, by order, to protect a party against unreasonable or unwarranted 
discovery requests. 
 
  (1) The presiding examiner may issue an order limiting discovery requests for 
good cause, including the following purposes: 
 
  (A) prevention of undue delay in the proceeding; 
   
  (B)  protection from a request to provide information which is readily 
available to the requesting party at a reasonable cost; 
   
  (C)  protection from unreasonably cumulative or duplicative discovery 
requests; or 
   
  (D) protection of a party or other person from undue burden, unnecessary 
expense, harassment or annoyance, or invasion of personal, constitutional, or 
property rights. 
     
  (2) Any person from whom discovery is sought may file a motion for a 
protective order, specifying the grounds on which a protective order is 
justified. Motions or responses shall include affidavits, discovery pleadings, 
or other pertinent documents to support the allegations made therein. 
   
  (3) The presiding examiner may order that: 
 
  (A) specific discovery not be sought in whole or in part, or that the extent 
or subject matter of discovery be limited, or that it not be undertaken at the 
time or place specified; 
   
  (B) discovery be undertaken only by such method or upon such terms and 
conditions or at the time and place directed by the presiding examiner; 
   
  (C) for good cause shown, results of discovery be sealed or otherwise 
adequately protected, that its distribution be limited, or that its disclosure 
be restricted; 
   
  (D)  information or material be protected by any means consistent with the 
intent of this chapter; or 
   
  (E) information or material be protected in the interest of justice if 
necessary to protect the party from undue burden, unnecessary expense, 
harassment or annoyance, or invasion of personal, constitutional, or property 
rights. 
       
  (b) Protection of Confidential or Proprietary Information. The presiding 
examiner may issue a protective order governing the production of confidential 
or proprietary information as is appropriate in each proceeding before the 
commission. In addition, the parties may enter into agreements regarding 
protection of confidential or proprietary information. Entry of a protective 
order is not a determination that any documents produced under the protective 
order are proprietary or confidential. 
 
     
  sec.22.143. Depositions. 
 
  (a) Governing Statute. The taking and use of depositions in any proceeding 
shall be governed by APTRA. A request to issue a commission for deposition shall 
be filed no later than five working days before the date of the deposition. 
Issuance of a commission for deposition is a ministerial act and does not 
preclude requests for issuance of a protective order pursuant to sec.22.142 of 
this title (relating to Limitations on Discovery and Protective Orders). 
   
  (b) Deposition By Agreement. Upon agreement of the parties, parties may waive 
the requirement of issuance of a commission. All parties shall be given no less 
than three working days notice of depositions, including the person to be 
deposed, the date, time, and place of the deposition, and the subject of the 
deposition. 
   
  (c) Copy to Be Provided. Upon receipt of a transcript of the deposition by the 
party, the party conducting the deposition shall provide a copy of the 
transcript to the general counsel. 
   
  (d) Agreements. An agreement affecting a deposition upon oral examination is 
also enforceable if the agreement is recorded in the deposition transcript. 
 
     
  sec.22.144. Requests for Information and Requests for Admission of Facts. 
 
  (a) Availability. At any time after an application is filed, and subject to 
the provisions of sec.22.141 of this title (relating to Forms and Scope of 
Discovery), any party may serve upon any other party written requests for 
information and requests for admission of fact. 
   
  (b)  Making Requests for Information. 
 
  (1) Contents. A request under this section shall identify with reasonable 
particularity the information, documents or material sought. A request seeking 
inspection of documents or property shall describe with reasonable particularity 
the documents to be produced or the property to which access is requested, and 
shall set forth the items to be inspected by individual item or by category. 
   
  (2) Service. A copy of each request for information shall be served upon all 
parties to the proceeding. Requests for information may be served by facsimile 
transmittal only by agreement of the party from whom discovery is sought or if 
authorized by the presiding examiner. Requests for information that are received 
after 3 p.m. shall be deemed to have been received the following business day. 
Responses to requests for information shall be served on the requesting party 
and any party that has requested, in writing, to be served. 
     
  (c)  Responding to Requests for Information. 
 
  (1) Time for Response. The party upon whom a request is served shall serve a 
full written response to the request within 20 days after receipt of the 
request. The presiding examiner, on motion and for good cause shown, may extend 
or shorten the time for providing responses. 
   
  (2) Requirements of Response. 
 
  (A)  Each response to discovery under this subsection shall identify the 
preparer or person under whose direct supervision the response was prepared, and 
the sponsoring witness, if any. 
   
  (B) Each request for information shall be answered separately. Responses to 
requests for information shall be preceded by the request to which the answer 
pertains. 
   
  (C) Responses to requests for production of documents, property, or other 
items, shall state, for each item or category of items for which an objection 
has not been raised, that inspection or other requested action will be permitted 
at a mutually convenient time at the location where the documents, property, or 
other items are maintained. If compliance with the request is impossible, a 
written response shall be filed stating the reasons for the unavailability of 
the information. 
   
  (D) Where the response to a request for information may be derived or 
ascertained from public records, the responding party shall not be obligated to 
produce the documents for the requesting party. It shall be sufficient answer to 
identify with particularity the public records that contain the requested 
information. 
   
  (E) Where a request may be answered by production of or reference to 
information that currently exists in the form of a document, computer record, or 
other existing tangible thing that is voluminous, as defined in subsection (h) 
of this section, it is a sufficient answer to the request to specify the records 
from which the answer may be derived or ascertained and to afford a reasonable 
opportunity to the requesting party to examine, to audit or to inspect such 
records and to allow the requesting party to make copies, compilations, 
abstracts, or summaries from such records. The specification of records provided 
shall include sufficient detail to permit the requesting party to locate and to 
identify, as readily as can the responding party, the records from which the 
answers may be ascertained. 
   
  (F) Responses to requests for information shall be filed under oath, unless 
the responding party stipulates in writing that responses to requests for 
information can be treated by all parties as if the answers were filed under 
oath. 
       
  (d) Objections to Requests for Information. Objections to requests for 
information, if any, shall be filed within five working days of receipt of the 
request for information. The objections shall state the date the request for 
information was received. 
 
  (1) The objections shall be a separate pleading and entitled "Objections of 
(name of objecting party) to (style of RFI objected to)." The request for 
information to which an objection is being filed shall be stated and the 
specific grounds for the objection shall be separately listed for each question. 
If an objection pertains only to a part of a question, that part shall be 
clearly identified. All arguments upon which the objecting party relies shall be 
presented in full in the objection. 
   
  (2) If the objection is founded upon a claim of privilege or exemption under 
Rule 166(b)(3) of the Texas Rules of Civil Procedure, the objecting party shall 
file within two working days of the filing of the objections, an index that 
lists, for each document: the date and title of the document; the preparer or 
custodian of the information; to whom the document was sent and from whom it was 
received; and the privilege(s) or exemption(s) that is claimed. A full and 
complete explanation of the claimed privilege or exemption shall be provided. 
The index shall be sufficiently detailed to enable the presiding examiner to 
identify the documents from the list provided. The index and explanations shall 
be public documents and shall be served on all parties who are entitled to 
receive copies of responses to requests for information under subsection (b)(2) 
of this section. If a document is to be provided pursuant to the terms of a 
protective order, the responding party need not comply with the procedures of 
this paragraph. 
   
  (3) A party raising objections on the grounds of relevance as well as grounds 
of privilege or exemption is not required to file an index to the privileged or 
exempt documents at the time the objections are filed. A party may instead 
include an objection to the filing of the index. The objections shall show good 
cause for postponement of the filing of the index. An index to the privileged or 
exempt documents shall be due within five working days of receipt of an order 
denying the relevance objection or overruling the objection to the filing of an 
index. 
   
  (4) The requirement to respond to those requests, or portions thereof, to 
which objection is made shall be postponed until the objections are ruled upon 
and for such additional time thereafter as the presiding examiner may direct. 
   
  (5) In the interests of narrowing discovery disputes, the responding party may 
agree to provide certain information sought by a request while objecting to the 
provision of other information sought by the request. 
     
  (e) Motions to Compel. Parties shall negotiate diligently and in good faith 
concerning any discovery dispute. If negotiation fails, the party seeking 
discovery shall file a motion to compel no later than seven working days after 
the objection is received. The motion to compel shall be supported by an 
affidavit stating that negotiations were conducted diligently and in good faith. 
Absence of a motion to compel will be construed as an indication that the 
parties have resolved their dispute. The presiding examiner may rule on the 
motion to compel based on written pleadings without allowing additional 
argument. 
   
  (f) Responses to Motions to Compel. Responses to a motion to compel shall be 
filed within three working days after receipt of the motion, and shall include 
all factual and legal arguments the respondent wants to present regarding the 
motion. 
   
  (g) In Camera<ol> Inspection. If an objection is founded on a claim of 
privilege or an exemption under Rule 166(b)(3) of the Texas Rules of Civil 
Procedure, the burden is on the objecting party to request an in camera<ol> 
inspection and to provide the documents for review. Any request shall be filed 
within three working days of the receipt of the motion to compel. The request 
shall contain the factual and legal basis to support the claimed exemption or 
privilege. The objecting party shall provide the documents to the presiding 
examiner, under seal, no later than one working day after it requests an in 
camera<ol> inspection. Documents submitted for  in camera<ol> review shall not 
be filed with the commission filing clerk. The objecting party shall review the 
documents and note with specificity any portions to which the claimed privilege 
or exemption claim does not apply. 
   
  (h) Production of Voluminous Material. The following procedures shall apply to 
production of voluminous materials. 
 
  (1) Responses to particular questions that consist of less than 100 pages are 
not voluminous and shall be provided in full. 
   
  (2) Subject to paragraph (3) of this subsection, the responding party shall 
make available all voluminous information provided in response to a request for 
information at a designated location in Austin. 
   
  (3) A party will be released from its obligation to make available the 
requested voluminous data at a designated location in Austin, only if the volume 
of the data exceeds eight linear feet of documents. In that event, the party 
shall make the information available where the documents are located. 
   
  (4) The party providing the voluminous material shall organize the responses 
and material to enable parties to efficiently review the documents, including 
labelling of material by request for information number and subparts. 
     
  (i) Duty to Supplement. A responding party is under a continuing duty to 
supplement its discovery responses if that party acquires information upon the 
basis of which the party knows or should know that the response was incorrect or 
incomplete when made, or though correct or complete when made, is materially 
incorrect or incomplete. The responding party shall amend its prior response 
within five working days of acquiring the information. 
   
  (j) Limitations on Number of Request. This subsection applies to dockets filed 
after the effective date of these rules. In major rate proceedings, proceedings 
initiated pursuant to PURA sec.42, fuel reconciliations, market dominance 
proceedings, petitions to declare a market subject to significant competition, 
and applications for licensing of new generating plant, no party may submit more 
than 500 Requests for Information to any other party. Where a docket involves 
more than one of the types of cases listed in this section, no party may submit 
more than 500 Requests for Information to any other party with respect to each 
such type of case included in the docket. In all other dockets, no party may 
submit more than 250 Requests for Information to any other party. Each subpart 
or subdivision calling for a response in a Request for Information shall be 
counted as a Request for Information. The presiding examiner may permit a party 
additional requests for information only on a showing of good cause. 
   
  (k) Requests for Admission of Facts. Requests for admission of facts shall be 
made in accordance with Rule 169 of the Texas Rules of Civil Procedure. 
 
     
  sec.22.145. Subpoenas. 
 
  (a) Issuance. Pursuant to APTRA, sec.14, the presiding examiner may issue a 
subpoena for the attendance of a witness or for the production of books, 
records, papers, or other objects. Motions for subpoenas to compel the 
production of books, records, papers, or other objects shall describe with 
reasonable particularity the objects desired and the material and relevant facts 
sought to be proved by them. 
   
  (b) Service and return. A subpoena may be addressed to the sheriff or any 
constable, who may serve the subpoena in any manner authorized by the Texas 
Rules of Civil Procedure; and service thereof may be accepted by any witness by 
a written memorandum, signed by such witness, attached to the subpoena, or by 
any other method authorized by the Texas Rules of Civil Procedure. 
   
  (c) Fees. Subpoenas shall be issued by the presiding examiner only after sums 
have been deposited to ensure payment of expense fees incident to the subpoenas. 
Payment of any such fees or expenses shall be made in the manner prescribed in 
APTRA sec.14. 
   
  (d) Motions to Quash. Motions to quash subpoenas shall be filed at least three 
working days before the date the witness is ordered to appear or the documents 
or other objects are ordered to be produced, unless the party ordered to respond 
to the subpoena shows that it was justifiably unable to file objections at that 
time. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320989 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter I. Sanctions 
 
  16 TAC sec.22.161 
 
  The new section is proposed under Texas Civil Statutes, Article 1446c, sec.16, 
which provide the Public Utility Commission of Texas with the authority to make 
and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.161. Sanctions. 
 
  (a) Enforcement of Subpoenas or Commissions for Depositions. If a person fails 
to comply with the subpoena or commission for deposition issued by the presiding 
examiner, the commission or the party requesting the subpoena or commission for 
deposition may seek enforcement pursuant to APTRA. 
   
  (b)  Imposition of Sanctions By A Hearings Examiner. If, after notice and 
opportunity for hearing, the hearings examiner finds a party violated sec.22. 
3(d)(7) of this title (relating to Standards of Conduct), or abused the 
discovery process in seeking, making, or resisting discovery, or that any 
request, response, or answer is unreasonably frivolous, oppressive, harassing, 
or made for the purposes of delay, then the hearings examiner may impose 
sanctions for such abuse. Sanctions may include the following: 
 
  (1)  recess or continue the hearing; 
   
  (2) disallow any further discovery of any kind or a particular kind by the 
disobedient party; 
   
  (3)  disallow, in part or in whole, the disobedient party's presentation of 
evidence on issues that were the subject of the discovery request; 
   
  (4)  rule that particular facts shall be regarded as established for the 
purposes of the proceeding in accordance with the claim of the party obtaining 
the discovery order; 
   
  (5) limit the disobedient party's right to participate in the proceeding; 
   
  (6) recommend to the commission that all or part of rate case expenses, 
including attorneys fees, be disallowed; and 
   
  (7) recommend to the commission for dismissal of the proceeding, institution 
of civil action, or any other sanction available to the commission by law. 
     
  (c) Imposition of Sanctions By The Commission. In addition to the sanctions 
listed in subsection (b) in this section that may be imposed by a hearings 
examiner, the commission, after notice and opportunity for hearing, may impose 
sanctions including: 
 
  (1) disallow the disobedient party's rights to participate in the proceeding; 
   
  (2) dismiss the application with or without prejudice; 
   
  (3) institute civil action; or 
   
  (4)  impose any other sanction available to the commission by law. 
     
  (d)  Imposition of Sanctions Against Representative of a Party. If the person 
disobeying an order compelling discovery is an agent, officer, employee, 
attorney, partner, or director of a party, the presiding examiner may take any 
of the actions described in subsections (b) or (c) of this section against that 
party based on the conduct of the agent, officer, employee, attorney, partner, 
or director, regardless of whether the person had actual authority to engage in 
the disobedient conduct. 
   
  (e) Procedure. A motion for sanctions may be filed at any time during the 
proceeding or may be initiated sua sponte by the presiding examiner. A motion to 
compel discovery is not a prerequisite to the filing of a motion for sanctions. 
A motion should contain all factual allegations necessary to apprise the parties 
and the hearings examiner or commission of the disobedient conduct and should 
request specific relief. A motion shall be served on all parties. Upon receipt 
of the motion, a hearing shall be held on the motion. Any order regarding 
sanctions issued by a hearings examiner shall be appealable pursuant to 
sec.22.123 of this title (relating to Appeal of an Interim Order). 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320990 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter J. Summary Proceedings 
 
  16 TAC sec.22.181, sec.22.182 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.181. Dismissal of a Proceeding. 
 
  (a) Motions for Dismissal. 
 
  (1) Upon the motion of the presiding examiner or the motion of any party, the 
presiding examiner may recommend that the commission dismiss, with or without 
prejudice, any proceeding without an evidentiary hearing, for any of the 
following reasons: 
 
  (A) lack of jurisdiction; 
   
  (B) moot questions or obsolete petitions; 
   
  (C) res judicata; 
   
  (D) collateral estoppel; 
   
  (E) unnecessary duplication of proceedings; 
   
  (F) failure to prosecute; 
   
  (G) failure to state a claim for which relief can be granted; or 
   
  (H) other good cause shown. 
     
  (2) The party that initiated the proceeding shall have 20 days to respond to a 
motion to dismiss. If a hearing on the motion to dismiss is held, that hearing 
shall be confined to the issues raised by the motion to dismiss. 
   
  (3) If the presiding examiner determines that the proceeding should be 
dismissed, the presiding examiner shall prepare an Examiner's Report to that 
effect and, if requested, shall set an expedited schedule for exceptions and 
replies. The commission shall consider the Examiner's Report as soon as is 
practicable. 
     
  (b) Withdrawal of application. An applicant, complainant, or other party that 
initiated a proceeding has the right to withdraw its application, petition, or 
complaint, without prejudice to refiling of same, at any time prior to the 
signing of a final order thereon by the commission. If an application is 
withdrawn, the presiding examiner shall issue an order of dismissal without 
prejudice. 
 
     
  sec.22.182. Summary Decision. 
 
  (a) Motion for Summary Decision. The presiding examiner may grant a motion for 
summary decision on any or all issues to the extent that the pleadings, 
affidavits, materials obtained by discovery or otherwise, admissions, matters 
officially noticed, or evidence of record show that there is no genuine issue as 
to any material fact and that the moving party is entitled to a decision in its 
favor, as a matter of law, on the issues expressly set forth in the motion. 
   
  (b) Filing and Contents of Motion. Any party to a proceeding may move for 
summary decision on any or all of the issues. The motion may be filed at any 
time before the close of the hearing on the merits. The party filing the motion 
shall demonstrate that the issue or issues may be resolved by summary decision 
in accordance with the standard set forth in subsection (a) of this section. 
Affidavits in support of the motion shall be based on personal knowledge and 
shall set forth such facts as would be admissible in evidence. A motion for 
summary decision shall specifically describe the facts upon which the request 
for summary decision is based, the information and materials which demonstrate 
those facts, and the laws or legal theories that entitle the movant to summary 
decision. 
   
  (c) Response to Motion. Any response to a motion for summary decision shall be 
filed within the time set by the presiding examiner. A party opposing the motion 
shall show, by affidavits, materials obtained by discovery or otherwise, 
admissions, matters officially noticed, or evidence of record, that there is a 
genuine issue of material fact for determination at the hearing, or that summary 
decision is inappropriate as a matter of law. 
   
  (d)  Hearing on the Motion. If appropriate, the presiding examiner shall set 
the motion for hearing. 
   
  (e) No Further Hearing. No further evidentiary hearing shall be held on issues 
for which summary decision has been granted. The presiding examiner will issue 
an Examiner's Report or interim order on the issues recommended to be resolved 
by summary decision. Parties may file exceptions and replies to exceptions to an 
Examiner's Report recommending resolution of issues by summary decision. An 
order granting or denying partial summary decision is appealable to the 
commission. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320991 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter K. Hearings 
 
  16 TAC sec.sec.22.201-22.205 
 
  The new sections are adopted under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.201. Place and Nature of Hearings. All evidentiary hearings shall be 
held in Austin, unless the commission determines that it is in the public 
interest to hold a hearing elsewhere. The commission may, when it is in the 
public interest, hold regional hearings to obtain public comment. 
 
   
  sec.22.202. Presiding Examiner. 
 
  (a) Presiding Examiner to Conduct Hearings. Hearings in contested cases shall 
be conducted by one or more presiding examiners. The presiding examiner has the 
decision making authority set out in the commission rules, APTRA, and PURA. 
   
  (b)  Commission May Preside Over Any Hearing. The commission has the authority 
to conduct any prehearing conference and hearing on any proceeding. The 
commission may conduct the entire hearing, or it may preside over a hearing in 
progress, in which case the commissioners shall read the record established to 
that date. Rulemaking hearings may be conducted by the commission or its 
designee. 
   
  (c) Authority of Presiding Examiner. The presiding examiner has broad 
discretion in conducting the course, conduct, and scope of the hearing. The 
presiding examiner's authority includes, but is not limited to, the power to 
administer oaths and affirmations; call and examine witnesses; receive evidence 
and testimony; rule upon the admissibility of evidence and amendments to 
pleadings; issue subpoenas; issue discovery, procedural, and scheduling orders; 
impose sanctions; compel the attendance of witnesses and the production of 
documents; authorize the taking of depositions; re-open the record, prior to the 
issuance of an examiner's report, for additional evidence where it is necessary 
to make the record correct, accurate, and complete; make proposed findings of 
fact and conclusions of law; make proposed orders; issue interim orders; recess 
any hearing from time-to-time; and take any other action not prohibited by law 
or by commission rule which is necessary for an efficient and fair hearing. 
   
  (d) Conduct of Hearing. The presiding examiner shall rule expeditiously on all 
motions and objections made at the hearing. The presiding examiner shall conduct 
the hearing in such a manner to secure fairness in administration, eliminate 
unjustifiable delay, and promote the development of the record consistent with 
the applicable laws. The presiding examiner shall endeavor to limit the 
presentation of evidence that creates an unfair prejudice, confuses the issues, 
or causes undue delay or needless presentation of cumulative evidence, and 
shall: 
 
  (1) set reasonable times for a party to present evidence, including oral 
testimony of its own witnesses and cross-examination of other party's witnesses; 
   
  (2)  establish the order in which parties will present evidence and conduct 
cross-examination; 
   
  (3) limit the number of witnesses to avoid cumulative or repetitious 
testimony; 
   
  (4) limit the time allowed for cross-examination; and 
   
  (5) order the presentation of cumulative evidence discontinued. 
     
  (e) Replacement. If at any time a presiding examiner is unable to continue 
presiding over a case, the director of hearings may appoint a substitute 
presiding examiner who shall perform any function remaining to be performed 
without the necessity of repeating any previous proceedings. The substitute 
presiding examiner shall read the record of the proceedings that occurred prior 
to his or her appointment before issuing an Examiner's Report or recommended 
findings of fact and conclusions of law. 
 
     
  sec.22.203. Order of Procedure. 
 
  (a) Opening the evidentiary hearing. The presiding examiner shall open the 
hearing by making a concise statement of its scope and purposes and by taking 
appearances of each party or the party's authorized representative. 
   
  (b) Order of Procedure in Evidentiary Hearings. 
 
  (1) The party with the burden of proof on the whole proceeding shall be 
entitled to open and to close. Parties shall be allowed to make opening 
statements. Following opening statements, if any, the party with the burden of 
proof shall be allowed to proceed with its direct case. Opposing parties shall 
be allowed to cross-examine each witness, consistent with any order aligning 
parties. Each party shall then present its case and witnesses will be subjected 
to cross-examination. Unless otherwise ordered by the presiding examiner for 
good cause, the general counsel shall be the last party to present a direct 
case. 
   
  (2) Redirect or recross examination will be limited to matters raised in the 
round of examination immediately preceding the redirect or recross examination. 
   
  (3) The party with the burden of proof may rebut evidence presented by 
opposing parties after all parties have presented their direct cases. Rebuttal 
may be afforded other parties at the presiding examiner's discretion, provided 
that the party with the burden of proof shall be entitled to make the closing 
presentation, which may include surrebuttal. 
   
  (4) The presiding examiner may allow supplemental rebuttal only to the extent 
that the party with the burden of proof could not have reasonably anticipated 
the need for such evidence in time to file it with the party's main rebuttal 
case. Oral supplemental rebuttal may be allowed, provided that the testimony is 
in response to matters first brought up in cross examination of a nonapplicant 
witness and only to the extent that the applicant could not have reasonably 
anticipated the need for such evidence in time to file it in written form. If a 
party intends to present supplemental rebuttal, it shall state in writing or on 
the record at the beginning of the presentation of its rebuttal case which 
witnesses will be presenting supplemental rebuttal, the general subject of the 
supplemental rebuttal, the evidence which the supplemental rebuttal is intended 
to rebut, and which rebuttal, if any, will be oral rather than written. Written 
supplemental rebuttal, if allowed, shall be filed no later than five working 
days after the date the evidence being rebutted was admitted. Oral supplemental 
rebuttal shall be limited to evidence offered to rebut evidence admitted less 
than five working days before the oral supplemental rebuttal is offered. Any 
exhibits offered during oral supplemental rebuttal shall be distributed to the 
presiding examiner and the parties at the beginning of the applicant's rebuttal 
case, unless otherwise ordered by the presiding examiner. A party may be 
exempted from the requirements of this subparagraph only upon a showing that 
compliance is not feasible. 
   
  (5)  After parties have completed the presentation of evidence, and have been 
afforded the opportunity to cross-examine the other parties' witnesses, closing 
statements shall be allowed. Such statements shall be made either in writing or 
orally at the presiding examiner's discretion. 
   
  (6) The presiding examiner may question any witness testifying in a case. A 
party may raise an evidentiary objection to any question asked by the presiding 
examiner, and the presiding examiner shall rule on any such objection. 
   
  (7)  Subject to the requirements of APTRA, the presiding examiner may call 
upon any party for further material or relevant evidence on any issue before 
issuing an examiner's report. The additional evidence shall not be admitted 
without an opportunity for inspection, objection, and cross-examination by all 
parties, and rebuttal by the party with the burden of proof on the whole 
proceeding. 
 
       
  sec.22.204. Transcript and Record. 
 
  (a) Preparation of Transcript. When requested by any party to a proceeding, a 
stenographic record of all proceedings before a presiding examiner in any 
prehearing conference or hearing, including all evidence and argument, shall be 
made by an official reporter appointed by the commission. It is the 
responsibility of the party desiring the stenographic record to arrange for the 
official reporter to be present. 
   
  (b) Purchase of Copies. A party may purchase a copy of the transcript from the 
official reporter at rates set by the commission. 
   
  (c)  Corrections to Transcript. Proposed written corrections of purported 
errors in a transcript shall be filed and served on each party of record, the 
official reporter, and the presiding examiner within a reasonable time after the 
discovery of the error. The presiding examiner may establish time limits for 
proposing corrections. If no party objects to the proposed corrections within 12 
days after filing, the presiding examiner may direct that the official reporter 
correct the transcript as appropriate. In the event that the presiding examiner 
or a party disagrees on suggested corrections, the presiding examiner may hold a 
posthearing conference and take evidence and argument to determine whether, and 
in what manner, the record shall be changed. 
   
  (d) Contents of Record. The record in a contested case comprises those items 
specified in APTRA. 
 
     
  sec.22.205. Briefs.  Briefs shall conform, where practicable, to the 
requirements set forth for formatting pleadings in this chapter. Briefs in 
excess of 10 pages shall contain a table of contents with page numbers stated. 
The presiding examiner may require parties to address certain issues, or address 
issues in a specific order or format. If the legal authority cited in the briefs 
is not contained in the commission library, a copy of the legal authority shall 
be provided at the time the brief is filed. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320992 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter L. Evidence and Exhibits in Contested Cases 
 
  16 TAC sec.sec.22.221-22.228 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.221. Rules of Evidence in Contested Cases. 
 
  (a) Rules of Civil Evidence Apply. The Texas Rules of Civil Evidence as 
applied in nonjury civil cases in the courts of Texas shall be followed in 
contested cases. Irrelevant, immaterial, or unduly repetitious evidence shall be 
excluded. When necessary to ascertain facts not reasonably susceptible of proof 
under the Texas Rules of Civil Evidence, evidence not admissible under those 
rules may be admitted, except where precluded by statute, if it is of a type 
commonly relied upon by reasonably prudent persons in the conduct of their 
affairs. 
   
  (b) Rules of Privilege and Exemption. The rules of privilege and exemption 
recognized by Texas law shall apply. 
   
  (c) Objections. Objections to evidentiary offers may be made, shall be ruled 
upon, and shall be noted in the record. Failure to object to evidence at the 
time it is offered constitutes a waiver of all objections to the evidence. 
   
  (d)  Formal Exceptions Not Required. Formal exceptions to rulings made by the 
presiding examiner during a hearing are not required. It shall be sufficient 
that the party notified the presiding examiner of the grounds for the objection 
and desired ruling. 
   
  (e) Public Comment. Public comment is not part of the evidentiary record of a 
contested case. 
 
     
  sec.22.222. Official Notice. 
 
  (a) Facts Noticeable. Official notice may be taken of judicially cognizable 
facts not subject to reasonable dispute in that they are generally known within 
the jurisdiction of the commission or capable of accurate and ready 
determination by resort to sources whose accuracy cannot reasonably be 
questioned. In addition, official notice may be taken of generally recognized 
facts within the area of the commission's specialized knowledge. 
   
  (b) Motions for Official Notice and Opportunity to Respond. If a party intends 
to rely on matters officially noticed as part of that party's direct case, the 
motion for official notice shall be made by the deadline established for that 
party to prefile direct testimony or as directed by the presiding examiner. 
Otherwise, a party's motion for official notice shall be made prior to the 
conclusion of the evidentiary hearing unless made pursuant to sec.22.226(d) of 
this title (relating to Exhibits). Motions for official notice may be written or 
oral. The motion shall state with specificity the facts, material, records, or 
documents of which official notice is requested, and copies of such materials, 
records, or documents shall be provided to the presiding examiner and all 
parties. A party who opposes the motion shall have the opportunity to contest 
the requested action. 
   
  (c) Notification of Materials Proposed to be Noticed. The presiding examiner 
may propose to take official notice of facts, material, records, or documents 
authorized by APTRA,  s14(q). The parties shall be notified in advance of the 
facts, material, records, or documents proposed to be officially noticed and 
shall be given the opportunity to contest the proposed action. 
   
  (d) Judicial and Administrative Decisions, Commission Orders, Examiner's 
Reports, and Hearings Examiner's Orders. Official notice shall not be taken of 
judicial and administrative decisions, commission orders, examiner's reports, 
and hearings examiner's orders for the purpose of citing such documents as 
precedent or as legal support for a position. A party may cite any part of such 
decisions, orders, and reports in its pleadings. Official notice may be taken of 
judicial and administrative decisions, commission orders, examiner's reports, 
and hearings examiner's orders for evidentiary purposes. 
 
     
  sec.22.223. Witnesses to be Sworn. Oral testimony in contested cases shall be 
presented under oath or affirmation administered by the presiding examiner or an 
official reporter. 
 
   
  sec.22.224. Documentary Evidence. <ol> A copy of a document may be admitted as 
evidence if authenticity is not questioned or is established by competent 
evidence. On request, parties shall have the opportunity to compare the copy 
with the original, unless it is not practicable or reasonable to do so. When 
numerous documents of a similar nature are offered, the presiding examiner may 
limit those admitted to a number of documents which are representative, provided 
no party's rights are prejudiced thereby. The presiding examiner may require a 
party to abstract or summarize data from documents and to present the abstract 
or summary in exhibit form. All parties shall have the opportunity to examine 
the documents from which the abstract or summary is prepared. Such abstract or 
summary shall be admitted into evidence in lieu of the documents from which it 
was prepared only if all parties agree that the abstract or summary is accurate. 
 
   
  sec.22.225. Written Testimony and Accompanying Exhibits. 
 
  (a)  Pre-filing of testimony, exhibits, and objections. 
 
  (1) Unless otherwise ordered by the presiding examiner upon a showing of good 
cause, the written direct and rebuttal testimony and accompanying exhibits of 
each witness shall be prefiled. Deposition testimony and responses to requests 
for information by an opposing party that a party plans to introduce as part of 
its direct case shall be filed at the time the party files its written direct 
testimony. The presiding examiner shall establish a date for filing of 
deposition testimony and requests for information that an applicant plans to 
introduce as part of its direct case. 
   
  (2) Deposition testimony and responses to requests for information that a 
party plans to introduce in support of its rebuttal case shall be filed at the 
time the party files its written rebuttal testimony. 
   
  (3) A party is not required to prefile documents it intends to use during 
cross examination except that the presiding examiner may require parties to 
identify documents that may be used during cross examination if it is necessary 
for the orderly conduct of the hearing. 
   
  (4) Objections to prefiled direct testimony and exhibits, including deposition 
testimony and responses to request for information, shall be filed on dates 
established by the presiding examiner and shall be ruled upon before or at the 
time the prefiled testimony and accompanying exhibits are offered. Objections to 
prefiled rebuttal testimony shall be filed pursuant to the schedule ordered by 
the presiding examiner. 
   
  (5) Nothing in this section shall preclude a party from using discovery 
responses in its direct or rebuttal case to the extent such responses were not 
received prior to the applicable deadline for prefiling written testimony and 
exhibits. 
   
  (6)  The testimony pre-filing schedule in a major  s43 rate proceeding shall 
be established as set out in this subsection. 
 
  (A) Any utility filing an application to change its rates in a major rate 
proceeding shall file the written testimony and exhibits supporting its direct 
case on the same date that such statement of intent to change its rates is filed 
with the commission. As set forth in sec.22.243(b) of this title (relating to 
Rate Change Proceedings), the prefiled written testimony and exhibits shall be 
included in the rate filing package filed with the application. 
   
  (B) Other parties in the proceeding shall prefile written testimony and 
exhibits according to the schedule set forth by the presiding examiner. Except 
for good cause shown or upon agreement of the parties, the commission general 
counsel may not be required to file earlier than seven days prior to hearing. 
   
  (C) The presiding examiner shall establish dates for filing of rebuttal 
testimony. 
     
  (7) The presiding examiner shall establish a pre-filing schedule for sec.42 
rate cases and for cases other than major rate proceedings. In proceedings that 
are not major rate proceedings, market dominance proceedings filed pursuant to 
PURA, sec.100(f), notice of intent proceedings, applications for certificates of 
convenience and necessity for new generating plant, or applications for fuel 
reconciliations, the applicant is not required to prefile written testimony and 
exhibits at the time the filing is made unless otherwise required by statute or 
rule. 
   
  (8) The times for pre-filing set out in this section may be modified upon a 
showing of good cause. 
   
  (9)  Late-filed testimony may be admitted into evidence if the testimony is 
necessary for a full disclosure of the facts and admission of the testimony into 
evidence would not be unduly prejudicial to any party. A party that intends to 
offer late-filed testimony into evidence shall, at the earliest opportunity, 
inform the presiding examiner, who shall establish reasonable procedures and 
deadlines regarding such testimony. 
     
  (b) Admission of Prefiled Testimony. Unless otherwise ordered by the presiding 
examiner, direct and rebuttal testimony shall be received in written form. The 
written testimony of a witness on direct examination or rebuttal, either in 
narrative or question and answer form, may be received as an exhibit and 
incorporated into the record without the written testimony being read into the 
record. A witness who is offering written testimony shall be sworn and shall be 
asked whether the written testimony is a true and accurate representation of 
what the testimony would be if the testimony were to be given orally at the time 
the written testimony is offered into evidence. The witness shall submit to 
cross-examination, clarifying questions, redirect examination, and recross-
examination. The presiding examiner may allow voir dire examination where 
appropriate. Written testimony shall be subject to the same evidentiary 
objections as oral testimony. Timely prefiling of written testimony and 
exhibits, if required under this section or by order of the presiding examiner, 
is a prerequisite for admission into evidence. 
   
  (c) Supplementation of Prefiled Testimony and Exhibits. Oral or written 
supplementation of prefiled testimony and exhibits may be allowed prior to or 
during the hearing provided that the witness is available for cross-examination. 
The presiding examiner may exclude such testimony if there is a showing that the 
supplemental testimony raises new issues or unreasonably deprives opposing 
parties of the opportunity to respond to the supplemental testimony. The 
presiding examiner may admit the supplemental testimony and grant the parties 
time to respond. 
   
  (d) Tender and Service. On or before the date the prefiled written testimony 
and exhibits are due, parties shall file the number of copies required by 
sec.22.71 of this title (relating to Filing of Pleadings and Other Materials), 
or other commission rule or order, of the testimony and exhibits with the 
commission filing clerk and shall serve a copy upon each party. 
   
  (e) Withdrawal of Evidence. Any exhibit offered and admitted in evidence may 
not be withdrawn except with the agreement of all parties and approval of the 
presiding examiner. 
 
     
  sec.22.226. Exhibits. 
 
  (a) Form. Exhibits to be offered in evidence at a hearing shall be of a size 
which will not unduly encumber the record. Whenever practicable, exhibits shall 
conform to the size requirements established by sec.22.72 of this title 
(relating to Formal Requisites of Pleadings To Be Filed with the Commission) The 
pages of each exhibit shall be consecutively numbered. 
   
  (b) Marking and Exchanging Exhibits. Each exhibit offered in evidence shall be 
marked for identification by the presiding examiner or official reporter, if one 
is present. Copies of the exhibit shall be furnished to the presiding examiner 
and distributed to each party present at the hearing at the time the exhibit is 
offered in evidence, or at an earlier time if ordered by the presiding examiner 
for the orderly conduct of the hearing. 
   
  (c) Excluded Exhibits. If the party offering an exhibit that has been 
identified, objected to, and excluded wishes to withdraw the offer, the 
presiding examiner shall permit the return of the exhibit to the party. 
   
  (d) Late Exhibits. Except as may otherwise be agreed to by the parties on the 
record prior to the close of the hearing, no exhibit shall be received in 
evidence in any proceeding after the hearing has been concluded except on the 
motion of the presiding examiner or for good cause shown on written motion of 
the party offering the evidence. If the admission into evidence of a late-filed 
exhibit is proposed, copies shall be served on all parties of record. Parties 
shall file pleadings in opposition to admission of late-filed exhibits within 
five working days of the filing of the motion requesting admission of the 
exhibit. 
 
     
  sec.22.227. Offers of Proof. When the presiding examiner excludes testimony or 
documentary evidence, the party offering the excluded material shall be 
permitted to make an offer of proof prior to the close of the hearing. The party 
may make the offer by dictating into the record or submitting in writing the 
substance of the proposed testimony or by tendering the documentary evidence for 
inclusion in the record. Except for cross-examination concerning matters 
relating to the issue of the admissibility of the testimony or documentary 
evidence, cross-examination on offers of proof shall be deferred until such 
time, if any, that the testimony is admitted into evidence. The presiding 
examiner may direct that offers of proof be transcribed separately. Failure to 
make an offer of proof may constitute a waiver of any objection to the exclusion 
of the testimony or documentary evidence in question. 
 
   
  sec.22.228. Stipulation of Facts. No stipulation of facts between the parties 
or their authorized representatives shall be admitted into evidence unless it 
has been reduced to writing and signed by the parties or their authorized 
representatives or, upon leave of the presiding examiner, dictated into the 
record during a prehearing conference or hearing at which all parties to the 
agreement are present, have waived the right to be present, or have received 
reasonable notice that the settlement will be read into the record at that 
prehearing conference or hearing. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320993 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
           
  Subchapter M. Procedures and Filing Requirements in Particular Commission 
Proceedings 
 
  16 TAC sec.sec.22.241-22.246 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.241. Investigations. 
 
  (a) Commission Investigations. 
 
  (1) The commission may at any time institute formal investigations on its own 
motion or on the motion of the commission general counsel. Orders and general 
counsel pleadings initiating investigations shall specify the matters to be 
investigated, and shall be served upon the person being investigated. 
   
  (2) Notice of commission-instituted investigations of specific persons subject 
to commission regulation and investigative proceedings affecting such persons as 
a class will be served upon all affected persons under investigation. The 
commission shall publish notice in the Texas Register <ol> of prehearing 
conferences and hearings. The presiding examiner may require additional notice. 
     
  (b) Show Cause Orders in Complaint Proceeding. The presiding examiner, either 
upon his or her own motion or upon receipt of written complaint, may, at his or 
her discretion, at any time after appropriate notice has been given, summon any 
person within the commission's jurisdiction to appear in a public hearing and 
show cause why such person should not be compelled to comply with any applicable 
statute, rule, regulation, or general order with which it is allegedly not in 
compliance. All hearings in such show cause proceedings shall be conducted in 
accordance with the provisions of this chapter. 
   
  (c) No Limitations. Nothing in this section shall be construed to limit the 
commission's or commission general counsel's authority to investigate persons 
subject to the commission's jurisdiction. 
 
     
  sec.22.242. Complaints. 
 
  (a) Requirement to Present Complaint Concerning Electric Utility to a City. If 
a person receives electric utility service or has applied to receive such 
utility service within the limits of a city that has original jurisdiction over 
the electric utility providing service or requested to provide service, the 
person must present any complaint concerning the electric utility to the city 
before presenting the complaint to the commission. The person may present the 
complaint to the commission after: 
 
  (1) the city issues a decision on the complaint; or 
   
  (2) the city issues a statement that it will not consider the complaint or a 
class of complaints that includes the person's complaint. 
     
  (b) Informal Resolution of Complaints. A person who is required, under 
subsection (a) of this section, to present a complaint to a city before 
presenting it to the commission may, before presenting a complaint to the city, 
request that the public information division attempt to informally resolve the 
dispute. 
   
  (c) Informal Resolution Required in Certain Cases. A person who is aggrieved 
by the conduct of a utility or other person must present a complaint to the 
public information division for informal resolution before presenting the 
complaint to the commission, except in the following situations. 
 
  (1)  A complainant may present a formal complaint to the commission, without 
first referring the matters to the public information division for informal 
resolution, if: 
 
  (A) the complainant is the general counsel, the office of public utility 
counsel, or any city; 
   
  (B) the complaint is filed by a qualifying facility and concerns rates paid by 
a utility for power provided by the qualifying facility, the terms and 
conditions for the purchase of such power, or any other matter that affects the 
relations between a utility and a qualifying facility; 
   
  (C) the complaint is filed by a person alleging that a utility has engaged in 
anti-competitive practices; or 
   
  (D) the complaint has been the subject of a complaint proceeding conducted by 
a city. 
     
  (2) For any complaint that is not listed in paragraph (1) of this subsection, 
the complainant may submit to the director of hearings a written request for 
waiver of the requirement for attempted informal resolution. The complainant 
shall clearly state the reasons informal resolution is not appropriate. The 
director of hearings may grant the request for good cause. 
     
  (d) Termination of Informal Resolution. The public information division shall 
attempt to informally resolve all complaints within 45 days of the date of 
receipt of the complaint. The public information division shall notify, in 
writing, the complainant and the person against whom the complainant is seeking 
relief of the status of the dispute at the end of the 45-day period. If the 
dispute has not been resolved to the complainant's satisfaction within 45 days, 
the complainant may present the complaint to the commission. The public 
information division shall notify the complainant of the procedures for formally 
presenting a complaint to the commission or to a city that has regulatory 
authority over electric utilities. 
   
  (e)  Information Required. The director of hearings may permit a complainant 
to cure any deficiencies under this subsection and may wiave any of the 
requirements of this subsection for good cause, if the waive will not materially 
affect the rights of any other party. A complaint shall include the following 
information: 
 
  (1) the name of the complainant or complainants; 
   
  (2) the name of the complainant's representative, if any; 
   
  (3) the address, telephone number, and facsimile transmission number, if 
available, of the complainant or the complainant's representative; 
   
  (4) the name of the utility or other person against whom the complainant is 
seeking relief; 
   
  (5) if the complainant is seeking relief against an electric utility, a 
statement of whether the complaint relates to service that the complainant is 
receiving within the limits of a city; 
   
  (6) if the complainant is seeking relief against an electric utility within 
the limits of a city, a description of any complaint proceedings conducted by 
the city, including the outcome of those proceedings; 
   
  (7) a statement of whether the complainant has attempted informal resolution 
through the public information division and the date on which the informal 
resolution was completed or the time for attempting the informal resolution 
elapsed; 
   
  (8) a description of the facts that gave rise to the complaint; and 
   
  (9) a statement of the relief that the complainant is seeking. 
     
  (f) Copies to be Provided. A complainant shall file eight copies of the 
complaint. A complainant shall provide a copy of the complaint to the person 
from whom relief is sought. 
   
  (g) Docketing of Complaints. The director of hearings shall docket any 
complaint that substantially complies with the requirements of this section. 
   
  (h) Continuation of Service During Processing of Complaint. In any case in 
which a formal complaint has been filed and a utility or other person is 
threatening to discontinue a customer's service, the presiding examiner may 
issue an order requiring the utility or other person to continue to provide 
service during the processing of the complaint. The presiding examiner may issue 
such an order for good cause, on such terms as may be reasonable to preserve the 
rights of the parties during the processing of the complaint. 
   
  (i)  List of Cities Without Regulatory Authority. The public information 
division shall maintain and make available to the public a list of the 
municipalities that do not have exclusive original jurisdiction over all 
electric rates, operations, and services provided by an electric utility within 
its city or town limits. 
 
     
  sec.22.243. Rate Change Proceedings. 
 
  (a) Statements of Intent. No utility may make changes in its rates except by 
filing a statement of intent with the regulatory authority having original 
jurisdiction at least 35 days prior to the effective date of the proposed 
change. The statement of intent shall include proposed revisions of tariffs and 
schedules and a statement specifying in detail each proposed change, the effect 
the proposed change is expected to have on the revenues of the utility, 
expressed as an annual dollar increase over adjusted test year revenues and as a 
percent increase over adjusted test year revenues, the effective date of the 
proposed rate change, the classes and numbers of utility ratepayers affected, 
and a description of the service for which a change is requested. 
   
  (b) Rate Filing Package. Any utility filing a statement of intent to change 
its rates in a major rate proceeding under PURA sec.43 shall file a rate filing 
package and supporting workpapers as required by the commission's current rate 
filing package at the same time it files a statement of intent. The rate filing 
package shall be securely bound under cover, and shall include all information 
required by the commission's rate filing package form in the format specified. 
Examination for sufficiency and correction of deficiencies in rate filing 
packages are governed by sec.22.75 of this title (relating to Examination and 
Correction of Pleadings). 
   
  (c) Uncontested Applications Subject to Administrative Review. If no 
opposition to the statement of intent is filed by the deadline for filing 
motions to intervene, the application may be considered pursuant to the 
procedure set forth in sec.22.32 of this title (relating to Administrative 
Review). 
 
     
  sec.22.244. Review of Municipal Rate Actions. 
 
  (a) Contents of Petitions. In addition to any information required by statute, 
petitions for review of municipal rate actions filed pursuant to PURA, sec.26(b) 
or (c) shall contain the original petition for review with the required 
signatures and following additional information. 
 
  (1) Each signature page of a petition shall contain in legible form above the 
signatures the following: 
 
  (A) a statement that the petition is an appeal of a specific rate action of 
the municipality in question; 
   
  (B) the date of and a concise description of that rate action; 
   
  (C) a statement designating a specific individual, group of individuals, or 
organization as the signatories' authorized representative; and 
   
  (D) a statement that the designated representative is authorized to represent 
the signatories in all proceedings before the commission and appropriate courts 
of law and to do all things necessary to represent the signatories in those 
proceedings. 
     
  (2) The printed or typed name, telephone number, street or rural route 
address, and facsimile transmission number, if available, of each signatory 
shall be provided. Post office box numbers are not sufficient. In appeals 
relating to PURA, sec.26(c), the petition shall list the address of the location 
where service is received if the address differs from the residential address of 
the signatory. 
     
  (b) Signatures. A signature shall be counted only once, regardless of the 
number of bills the signatory receives. The signature shall be of the person in 
whose name service is provided or such person's spouse. The signature shall be 
accompanied by a statement indicating whether the signatory is appealing the 
municipal rate action as a qualified voter of that municipality under PURA, 
sec.26(b), or as a customer of the municipality served outside the municipal 
limits under PURA, sec.26(c). 
   
  (c) Validity of Petition and Correction of Deficiencies. The petition shall 
include all of the information required by this section, legibly written, for 
each signature in order for the signature to be deemed valid. The presiding 
examiner may allow the petitioner a reasonable time of up to 30 days from the 
date any deficiencies are identified to cure any defects in the petition. 
   
  (d)  Verification of Petition. Unless otherwise provided by order of the 
presiding examiner, the following procedures shall be followed to verify 
petitions appealing municipal rate actions filed pursuant to PURA, sec.26(b) and 
(c). 
 
  (1) Within 15 days of the filing of an appeal of a municipal rate action, the 
director of hearings shall send a copy of the petition to the respondent 
municipality with a directive that the municipality verify the signatures on the 
petition. 
   
  (2) Within 30 days after receipt of the petition from the director of 
hearings, the municipality shall file with the commission a statement of review, 
together with a supporting written affidavit sworn to by a municipal official. 
   
  (3) The period for the municipality's review of the signatures on the petition 
may be extended by the presiding examiner for good cause. 
   
  (4) Failure of the municipality to timely submit the statement of review shall 
result in all signatures being deemed valid, unless any signature is otherwise 
shown to be invalid or is invalid on its face. 
   
  (5) Objections by the municipality to the authenticity of signatures shall be 
set out in its statement of review and shall be resolved by the presiding 
examiner. 
     
  (e) Disputes. Any dispute over the sufficiency or legibility of a petition 
shall be resolved by the presiding examiner by interim order. 
 
     
  sec.22.245. Notice of Intent Petitions. 
 
  (a) Filing Requirements. This section applies only to utilities filing a 
notice of intent to file an application for a certificate of convenience and 
necessity for a new generating plant. Utilities filing a notice of intent shall 
use the commission prescribed form. At the time of filing the notice of intent, 
in addition to the requirements of the form, the utility shall file its entire 
direct case, including testimony and exhibits, that the utility intends to offer 
to support the notice of intent. The utility shall address the issues under 
PURA, sec.54(d) and Chapter 23 of this title (relating to Substantive Rules) and 
provide the information necessary to allow the commission to make the required 
determinations it and to either approve or disapprove the notice of intent. 
   
  (b) Procedural Schedule. The presiding examiner shall establish a procedural 
schedule that allows for commission action on the application within the 180-day 
statutory deadline set forth in PURA, sec.54(d) (2). The 180-day statutory time 
period shall be established based on the date of filing a sufficient 
application, and shall not run during any delay in providing the required 
notice. 
   
  (c) Waiver of Deadline. The utility that filed the notice of intent may waive 
the 180-day statutory deadline. 
 
     
  sec.22.246. Market Dominance Applications. 
 
  (a) Filing Requirements. This subsection applies only to interexchange 
telecommunications carriers found dominant in any service market filing 
applications for a determination that they are no longer dominant under PURA, 
sec.100(f). Such carriers shall use the commission prescribed form, if any. At 
the time of filing the application, in addition to the requirements of the form, 
if any, the carrier shall file its entire direct case, including testimony and 
exhibits, that the carrier intends to offer to support its application. The 
utility shall address the issues under PURA and the commission rules and provide 
the information necessary to allow the commission to make the required 
determinations and either approve or disapprove the application. 
   
  (b)  Procedural Schedule. The presiding examiner shall establish a procedural 
schedule that allows for commission action on the application within the 185-day 
statutory time period set forth in PURA, sec.100(f). The 185-day statutory time 
period shall not begin to run until the filing of a sufficient application under 
this section, and shall not run during any delay in providing the required 
notice. 
   
  (c) Waiver of Deadline. The carrier that filed the application may waive the 
185-day statutory deadline. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320994 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter N. Decision and Orders 
 
  16 TAC sec.sec.22.261-22.264 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.261. Examiner's Report. 
 
  (a) Requirement and Contents of Examiner's Report. If in a contested case a 
majority of the commissioners has not heard the case or read the record, the 
commission may not issue a final order until an examiner's report is served on 
all parties. The examiner's report shall be prepared by the hearings examiner(s) 
who conducted the hearing or who have read the record. The examiner's report 
shall include a proposed final order, a statement of the reasons for the 
proposed decision, and proposed findings of fact and conclusions of law in 
support of the proposed final order. Any party may file exceptions to the 
proposed decision in accordance with subsection (d) of this section. 
   
  (b) Procedures Regarding Proposed Orders. If the presiding examiner's 
recommendation is not adverse to any party, the recommendation may be made 
through a proposed order containing findings of fact and conclusions of law. The 
proposed order shall be served on all parties, and the presiding examiner shall 
establish a deadline for submitting proposed corrections or clarifications. 
   
  (c) Findings and Conclusions. The presiding examiner may direct or authorize 
the parties to draft and submit proposed findings of fact and conclusions of 
law. The commission is not required to rule on findings of fact and conclusions 
of law that are not required or authorized. 
   
  (d) Exceptions and Replies. 
 
  (1) Who may file. Any party may file exceptions to the Examiner's Report 
within the time period specified by the presiding examiner. If any party files 
exceptions, the opportunity shall be afforded to all parties to respond within a 
time period set by the presiding examiner. 
   
  (2) Presentation. The presiding examiner may require that issues be addressed 
in a specified order or according to a specified format. Proposed findings and 
conclusions may be submitted in conjunction with exceptions and replies. The 
evidence and law relied upon shall be stated with particularity, and any 
evidence or arguments relied upon shall be grouped under the exceptions or 
replies to which they relate. 
   
  (3) Request for Extension. A request for extension of time within which to 
file exceptions or replies shall be filed with the commission filing clerk and 
served on all parties. The presiding examiner may allow additional time for good 
cause shown. If additional time is allowed for exceptions, reasonable additional 
time shall be allowed for replies. 
     
  (e)  Supplemental or Amended Examiner's Reports. 
 
  (1) The presiding examiner may supplement or amend an examiner's report in 
response to the exceptions or replies submitted by the parties and upon the 
presiding examiner's own motion. Making corrections or minor revisions of an 
examiner's report is not considered issuance of an amended or supplemental 
examiner's report. 
   
  (2) A supplemental or amended examiner's report shall be clearly labeled. If 
time permits, all parties shall have the right to file exceptions and replies. 
If parties are not allowed an opportunity to file written exceptions and/or 
replies to an amended or supplemental examiner's report, the parties shall be 
allowed an opportunity to orally respond to the amended or supplemental 
examiner's report when the commission considers the report at an open meeting. 
 
       
  sec.22.262. Commission Action after an Examiner's Report. 
 
  (a)  Commission Action. The commission may adopt, or decline to adopt, the 
recommended decision in the examiner's report or proposed order in whole or in 
part. The commission is not restricted by the recommendations made by the 
presiding examiner. 
   
  (b) Remand. The commission may remand the proceeding for further 
consideration. 
 
  (1) The commission may direct that further consideration by a hearings 
examiner be accomplished with or without reopening the hearing and may limit the 
issues to be considered. 
   
  (2) If, on remand, additional evidence is admitted that results in a 
substantial revision of the proposed decision or the underlying facts, an 
amended or supplemental examiner's report or proposed order shall be prepared. 
If an amended or supplemental examiner's report is prepared, the provisions of 
sec.22.261(d) of this title (relating to Examiner's Report) apply. Exceptions 
and replies shall be limited to discussions, proposals, and recommendations in 
the supplemental examiner's report. 
     
  (c) Oral Argument Before the Commission. 
 
  (1) Any party may request oral argument before the commission prior to the 
final disposition of any proceeding. 
   
  (2) Oral argument shall be allowed at the discretion of the commission. The 
commission may limit the scope and duration of oral argument. The party bearing 
the burden of proof has the right to open and close oral argument. 
   
  (3) A request for oral argument shall be made in a separate written pleading, 
filed with the commission's filing clerk. The request shall be filed no later 
than 3 p.m. on the seventh working day preceding the date upon which the 
commission is scheduled to consider the case. Not more than two days before the 
commission is scheduled to consider the application, the parties may contact the 
hearings division to determine whether a request for oral argument has been 
granted. 
   
  (4) Upon the filing of a motion for oral argument, the director of hearings 
shall send separate ballots to each commissioner to determine whether the 
commission will hear oral argument at an open meeting. 
   
  (5) The absence or denial of a request for oral argument shall not preclude 
the commissioners from asking questions of any party present at the open 
meeting. 
     
  (d) Commission Not Limited. This section does not limit the commission in the 
conduct of its meetings to the specific types of action outlined in this 
section. 
 
     
  sec.22.263. Final Orders. 
 
  (a) Form and Content. 
 
  (1) A final order of the commission shall be in writing and signed by a 
majority of the commissioners. 
   
  (2) A final order shall include findings of fact and conclusions of law 
separately stated and may incorporate findings of fact and conclusions of law 
proposed within an examiner's report. 
   
  (3)  Findings of fact, if set forth in statutory language, shall be 
accompanied by a concise and explicit statement of the underlying facts 
supporting the findings. 
     
  (b) Notice. Parties shall be notified of the commission's final order pursuant 
to the requirements of APTRA. 
   
  (c) Effective Date of Order. Unless otherwise stated, the date a final order 
is signed is the effective date of that order, and such date shall be stated 
therein. 
   
  (d)  Reciprocity of Final Orders Between States. After reviewing the facts and 
the issues presented, a final order may be adopted by the commission even though 
it is inconsistent with the commission's procedural or substantive rules 
provided that the final order, or the portion thereof that is inconsistent with 
commission rules, is a final order, or a part thereof, rendered by a regulatory 
agency of some state other than the State of Texas and provided further that the 
number of customers in Texas affected by the final order is no more than the 
lesser of either 1,000 customers or 10% of the total number of customers of the 
affected utility. 
 
     
  sec.22.264. Rehearing. 
 
  (a) Motions for rehearing, replies thereto, and commission action on motions 
for rehearing shall be governed by APTRA. 
   
  (b) All motions for rehearing shall state the claimed error with specificity. 
If an ultimate finding of fact stated in statutory language is claimed to be in 
error, the motion for rehearing shall state all underlying or basic findings of 
fact claimed to be in error and shall cite specific evidence which is relied 
upon as support for the claim of error. 
   
  (c)  Upon the filing of a motion for rehearing, the director of hearings shall 
send separate ballots to each commissioner to determine whether they will 
consider the motion at an open meeting. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320995 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Subchapter O. Rulemaking 
 
  16 TAC sec.sec.22.281-22.284 
 
  The new sections are proposed under Texas Civil Statutes, Article 1446c, 
sec.16, which provide the Public Utility Commission of Texas with the authority 
to make and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.22.281. Initiation of Rulemaking. 
 
  (a) Petition for Rulemaking. Any interested person may petition the commission 
requesting the adoption of a new rule or the amendment of an existing rule. 
 
  (1) The petition shall be in writing and shall include a brief explanation of 
the rule, the reason(s) the new or amended rule should be adopted, the statutory 
authority for such a rule or amendment, and complete proposed text for the rule. 
The proposed text for the rule shall indicate by striking through the words, if 
any, to be deleted from the current rule and by underlining the words, if any, 
to be added to the current rule. 
   
  (2)  Within 60 days after submission of a petition, the commission either 
shall deny the petition in writing, stating its reasons for the denial, or shall 
initiate rulemaking proceedings. 
     
  (b) Commission Initiated Rulemaking. The commission may initiate rulemaking 
proceedings on its own motion or on the motion of the commission general 
counsel. Nothing in this section shall preclude the commission general counsel 
or commission staff from consideration or development of new rules or amendments 
to existing rules without express direction from the commission. 
 
     
  sec.22.282. Notice and Public Participation in Rulemaking Procedures. 
 
  (a) Notice. The commission shall provide notice of the proposed adoption of a 
rule pursuant to APTRA, sec.5. 
   
  (b) Public Comments. Prior to the adoption of any rule, the commission shall 
afford all interested persons reasonable opportunity to submit data, views, or 
arguments orally or in writing. In the case of substantive rules, opportunity 
for public hearing shall be granted if requested by at least 25 persons, by a 
governmental subdivision or agency, or by an association having at least 25 
members. 
   
  (c) Consideration of Comments. The commission shall consider fully all written 
and oral submissions concerning a proposed rule. On adoption of a rule, the 
commission, if requested to do so by an interested person either prior to 
adoption or within 30 days after adoption, shall issue a concise statement of 
the principal reasons for and against its adoption, incorporating in the 
statement the commission's reasons for overruling the considerations urged 
against its adoption. 
 
     
  sec.22.283. Emergency Adoption. <ol> Pursuant to APTRA,  s5(d), if the 
commission finds that an imminent peril to the public health, safety, or welfare 
or a requirement of state or federal law requires adoption of a rule on fewer 
than 30 days' notice and states in writing its reasons for that finding, it may 
proceed without prior notice or hearing or on any abbreviated notice and hearing 
that it finds practicable to adopt an emergency rule. The commission shall set 
forth the requisite finding in the preamble to the rule. An emergency rule 
adopted under the provisions of this section, and the commission's written 
reasons for the adoption, shall be filed in the office of the secretary of state 
for publication in the Texas Register<ol>. All of the requirements of APTRA, 
sec.5(d) apply to this section. 
 
   
  sec.22.284. Informal Information Gathering. 
 
  (a) The commission, the general counsel, and the commission staff may use 
informal conferences and consultations as a means of obtaining the viewpoints 
and advice of interested persons concerning a contemplated rulemaking. 
   
  (b) The commission may create committees of employees, non-employees, or both 
to advise it with respect to any contemplated rulemaking or other issues of 
interest to the commission, utilities, ratepayers, or other members of the 
public. Powers of these committees are advisory only. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320996 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
               Chapter 23. Substantive Rules 
  
  Certification 
 
  16 TAC sec.23.32 
 
  The Public Utility Commission of Texas proposes an amendment to sec.23.32, 
concerning automatic dial announcing devices. The purpose of the amendment is to 
conform sec.23.32, with federal regulations mandated by the Telephone Consumer 
Protection Act of 1991. 
 Suzi Ray, assistant general counsel, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Ms. Ray also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will include additional protections for telephone consumers. The 
amendment will also conform the PUC substantive rules with federal regulations. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed. 
 Ms. Ray also has determined that for each year of the first five years the 
section is in effect there will be no impact on employment in the geographical 
areas affected by implementing the requirements of the section. 
 In addition to general comments concerning the amendment, the Commission 
specifically requests comments concerning any potential problems which may arise 
with regard to Spanish speaking consumers. Please include remedies to the 
problems which should be considered by the Commission. 
 Written comments (13 copies) on the proposal may be submitted to John M. 
Renfrow, Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 
78757 within 30 days after publication. Comments should refer to Project Number 
11680. 
 The amendment is proposed under Texas Civil Statutes, Article 1446c, sec.16(a) 
and sec.118, which provide the Public Utility Commission of Texas with the 
authority to make and enforce the rules reasonably required in the exercise of 
its powers and jurisdiction. The amendment is intended to conform sec.23.32 with 
federal regulations mandated by the Telephone Consumer Protection Act of 1991, 
Public Law Numbers 102-243, 105 Stat. 2394. See 47 United States Code Annotated, 
sec.227 (1992). See also 47 Code of Federal Regulations, sec.64.1200 (1992). 
 
 
  sec.23.32. Automatic Dial Announcing Devices. 
 
  (a)-(b) (No change.) 
   
  (c) Requirements for use of an automatic dial announcing device. A person who 
operates an ADAD to make a telephone call in which the device plays a recorded 
message when a connection is completed to a telephone number must comply with 
the following requirements. 
 
  (1) (No change.) 
   
  (2) The device must not be used for random number dialing or to dial numbers 
by successively increasing or decreasing integers. <nl>In addition, the device 
must not be used in a way such that two or more telephone lines of a multi-line 
business are engaged simultaneously. 
   
  <nl>(3) At the beginning of the message, the message shall state clearly the 
identity of the business, individual, or other entity initiating the call. In 
addition, the message shall, during or after the message, state clearly the 
telephone number (other than that of the ADAD which placed the call) or address 
of such business, individual, or other entity. The entire message must be 
delivered in one language. 
   
  [(3) The message must state during the first 30 seconds of the call the nature 
of the call, the identity of the person, company, or organization making the 
call, and the telephone number from which the call was made.] 
   
  (4) The device must disconnect from the called person's line no later than 30 
seconds after the call is terminated by either party or, if the device cannot 
disconnect within that period, a live operator must introduce the call and 
receive the oral consent of the called person before beginning the message. 
<nl>In addition, the device must comply with the line seizure requirements in 47 
Code of Federal Regulations, sec.68.318(c)(2). 
   
  (5) (No change.) 
   
  (6) Calls may not be made to emergency telephone numbers of hospitals, fire 
departments, law enforcement offices,  <nl>medical physician or service offices, 
health care facilities, poison control centers, "911" lines<ol>, or other 
entities providing emergency service.  <nl>In addition, calls may not be made to 
telephone numbers of any quest room or patient room of a hospital, health care 
facility, elderly home, or similar establishment, any telephone numbers assigned 
to paging service, cellular telephone service, specialized mobile radio service, 
or other radio common carrier, or any service for which the called party is 
charged for the call. 
   
  (7) (No change.) 
     
  (d) -(g) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9320979 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
             
  Telephone 
 
  16 TAC sec.23.91 
 
  The Public Utility Commission of Texas proposes new sec.23.91, concerning a 
long run incremental cost methodology for local exchange carriers. All local 
exchange carriers with annual revenues from regulated telecommunications 
operations in Texas of $100 million or more for five consecutive years will be 
required to comply with this proposed rule. The rule requires local exchange 
carriers to determine and provide to the Public Utility Commission the long run 
incremental costs incurred by such carriers in the provision of 
telecommunications services. 
 Dr. August H. Ankum, chief economist, has determined that for the first five-
year period the section is in effect there will be no fiscal implications for 
state or local government as a result of enforcing or administering the section. 
 Dr. Ankum also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be promotion of consistent ratemaking treatment, decreased 
litigation of issues in rate cases, and greater certainty regarding the economic 
costs of providing telecommunications services. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the section as proposed. 
 Dr. Ankum has also determined that for each of the first five years the section 
is in effect there will be no impact on employment in the geographical areas 
affected by implementing the requirements of the section. 
 Comments on the proposal (13 copies) may be submitted to John M. Renfrow, 
Secretary of the Commission, 7800 Shoal Creek Boulevard, Austin, Texas 78757, 
within 30 days after publication. Comments should refer to Project Number 9075. 
 The commission directs the general counsel to conduct two workshops in 
connection with this rulemaking project. The first workshop will be held on or 
about 60 days after publication and will focus on subsections (a)-(f) of the 
proposed rule. The second workshop will be held on or about 90 days after 
publication and will focus on subsections (g)-(o) of the proposed rule. All 
persons who file comments on the proposed rule will be notified of the time and 
date of these workshops. Persons who do not wish to file comments but who are 
interested in being notified of the time and date of the workshops must so 
notify the commission within 30 days after publication of the proposed rule by 
filing a letter to that effect with the commission under Project Number 9075. 
 The new section is proposed under Texas Civil Statutes, Article 1446c, sec.16, 
which provide the Public Utility Commission of Texas with the authority to make 
and enforce rules reasonably required in the exercise of its powers and 
jurisdiction. 
 
 
  sec.23.91. Long Run Incremental Cost Methodology for LEC Services. 
 
  (a) Application. This section shall apply to local exchange carriers (LECs), 
as that term is defined in sec.23.61 of this title (relating to Telephone 
Utilities), with annual revenues from regulated telecommunications operations in 
Texas of $100 million or more for five consecutive years. 
   
  (b) Purpose. This section shall be used to determine the long run incremental 
costs incurred by LECs in the provision of telecommunications services. The 
costs determined in this section shall not be used to determine a company's 
revenue requirement during a proceeding pursuant to the Public Utility 
Regulatory Act, sec.42 or sec.43. 
   
  (c) Definitions. The following words and terms, when used in this section, 
shall have the following meaning, unless the context clearly indicates 
otherwise. 
 
  (1) Ancillary Services-The category of basic network functions (BNFs) (as 
defined in paragraph (2) of this subsection) that provide for certain activities 
that support other BNFs or finished services. This category of BNFs consists of 
three subcategories of BNFs: Billing and Collection; Measurement; and Operator 
Services. 
 
  (A) Billing and Collection-The subcategory of BNFs that provide for the 
function of compiling the information needed for customer billing, preparing the 
customer bill statement, disbursing the bill and collecting the customer 
payments. 
   
  (B) Measurement-The subcategory of BNFs that provide the functions of 
assembling, collating and transmitting end office switch recorded call data 
(occurrence and duration). 
   
  (C) Operator Services-The subcategory of BNFs that provide for the provision 
of a number of live or mechanized assistance functions to aid customers in the 
following ways: obtaining customer telephone number, street address and ZIP code 
information (directory assistance); providing new telephone numbers or 
explanatory information to callers who dial numbers which have been changed or 
disconnected (intercepts); providing assistance to customers in completing 
operator handled toll or local calls (collect, credit card, third party, 
station-to-station, or person-to-person); checking busy lines to make sure the 
line is not out of service (busy verification); and interrupting busy lines 
(busy interruption). These Operator Services are provided to end user customers 
as well as local exchange and interexchange carriers. 
     
  (2) Basic network function (BNF) -The smallest bundle of network components, 
functions, or activities that feasibly may be tariffed and offered as a service. 
   
  (3) Capital costs-The recurring costs that result from expenditures for plant 
facilities that are capitalized. The annual capital costs consist of 
depreciation, cost of money, and income taxes. 
   
  (4) Categories of BNFs-All BNFs shall fall into one of four categories of 
BNFs. The categories are: Network Access (as defined in paragraph (18) of this 
subsection); Switching and Switch Functions (as defined in paragraph (20) of 
this subsection); Dedicated and Switched Transport (as defined in paragraph (10) 
of this subsection); and Ancillary Services (as defined in paragraph (1) of this 
subsection). 
   
  (5)  Common costs-Costs incurred in the provision of two or more services that 
do not vary with changes in the relative proportions of the outputs of those 
services. Common costs are not directly attributable to any one service 
individually but only to a group of services collectively. However, if the 
technological requirements for the provision of one service alter the least cost 
technology choice for common facilities, then the increase in costs caused by 
the requirements for more advanced technologies is not a common cost but a cost 
directly attributable to the service that alters the least cost technology 
choice. 
   
  (6) Cost causation principle-The principle that only those costs that are 
caused by an activity (such as network function, service, or group of services) 
in the long run are directly attributable to that activity. Costs are caused by 
an activity, in the long run, if the costs are brought into existence as a 
direct result of the activity and are avoided when the activity ceases. 
   
  (7) Cost driver-A specific condition, under which a BNF is provided, whose 
change causes significant and systematic changes in the cost of providing a BNF. 
For example, if the cost of providing a Network Access Channel varies with the 
density and size of a wire center, then density and size are cost drivers for 
that BNF. 
   
  (8) Cost of debt-The rate of interest paid on borrowed money. 
   
  (9) Cost of money-The weighted annual cost to the LEC of the debt and equity 
capital invested in the company. 
   
  (10) Dedicated and Switched Transport-The category of BNFs that provide for 
dedicated or shared transmission transport between two or more LEC switching 
offices or wire centers. This BNF category consists of two subcategories of 
BNFs: Dedicated Transport and Switched Transport. 
 
  (A) Dedicated Transport-The subcategory of BNFs that provide for full period, 
bandwidth specific (e.g., DS-0, DS-1, DS-3) interoffice transmission paths 
between the originating and terminating points of channel connection. 
   
  (B) Switched Transport-The subcategory of BNFs that provide for temporary 
time-sensitive interoffice transmission paths between originating and 
terminating points of switching. 
     
  (11)  Depreciation expenses-The charges based on the depreciation accrual 
rates designed to spread the cost recovery of the property over its economic 
life. 
   
  (12) Expenses-Costs incurred in the provision of services that are expensed, 
rather than capitalized, in accordance with the Uniform System of Accounts 
applicable to the carrier. 
   
  (13) Group of services-A number of separately tariffed services that share 
significant common costs (as defined in paragraph (5) of this subsection) that 
are necessary and unique to the provision of those services and cannot be 
assigned to any one service individually. This term also refers to a situation 
in which two or more groups of services are part of a larger group of services 
because of significant common costs that are necessary and unique to the 
provision of all the services in the groups but can not be assigned to any one 
group or service individually. 
   
  (14) Least cost technology-The technology that would be chosen in the long run 
as the economically most efficient choice. 
   
  (15) Long run-A time period long enough to be consistent with the assumption 
that the company is in the planning stage and all of its inputs are variable and 
avoidable. 
   
  (16) Long run incremental cost (LRIC)-The change in total costs of the company 
of producing an increment of output in the long run when the company uses least 
cost technology. The LRIC should exclude any costs that would not be avoided if 
the increment of output were not produced. 
   
  (17) Measure of unit cost-The measure of usage used to calculate unit cost for 
a particular BNF (for example, a minute of use of a switching function, or a 
quarter mile of a DS-1 Network Access Channel). The measure of unit costs may be 
multidimensional; for example, it may have both time and distance components. 
The measure of unit cost chosen for a BNF shall correspond to the basis upon 
which the costs of that BNF are incurred. 
   
  (18) Network Access-The category of BNFs that accommodate access to other 
network functions provided by LECs. Access is accomplished by transmission paths 
between customers and LEC wire centers. This category consists of three 
subcategories of BNFs: Network Access Channel; Network Access Channel 
Connection; and Channel Performance and Other Features and Functions. 
 
  (A) Network Access (NA) Channel-The subcategory of BNFs that provide the 
transmission path between the point of interface at the customer location and 
the main distribution frame, or equivalent (e.g., DSX-1, DSX-3), of a LEC wire 
center. 
   
  (B) Network Access (NA) Channel Connection-The subcategory of BNFs that 
provide the interface between the Network Access Channel and the LEC wire center 
switching equipment, subsequent dedicated transport equipment (dedicated 
interoffice circuits), or subsequent channel equipment (dedicated intraoffice 
circuits). 
   
  (C) Channel Performance and Other Features and Functions -The subcategory of 
BNFs that provide the channel functions associated with transmission or service 
type (e. g., analog, digital, coin, ISDN), bandwidth conversion, signaling, 
multiplexing, amplification, and channel performance. 
     
  (19) Subcategories of BNFs-Groupings of closely related BNFs in a category of 
BNFs. 
   
  (20) Switching and Switch Function-The category of BNFs that provide for 
switched access between two or more Network Access Channels or between Network 
Access Channels and other BNFs, such as interoffice transport. This function is 
accomplished through the establishment of a temporary transmission path between 
Network Access Channels in the same switching office; between a Network Access 
Channel and the interoffice facilities that interconnect switching offices; or 
between a Network Access Channel and other BNFs. This BNF category shall cover 
the first point of switching for a customer. This BNF category consists of three 
subcategories of BNFs: Interoffice Switching; Intraoffice Switching; and 
Switching Features. 
 
  (A) Interoffice Switching-The subcategory of BNFs that provide for: switching 
between Network Access Channels and Switched Transport facilities which are 
connected to different wire centers; and switching between Network Access 
Channels and Switched Transport facilities when a tandem switch is used as the 
first point of interface to the LEC switched network (e.g., connection of 
facilities from an interexchange carrier's point of network interface). 
   
  (B)  Intraoffice Switching-The subcategory of BNFs that provide for switching 
between two or more Network Access Channels within the same wire center. 
   
  (C) Switching Features-The subcategory of BNFs that provide added convenience 
or capabilities to other BNFs or finished services. 
     
  (21) Unit cost-A cost per unit of output calculated by dividing the total long 
run incremental cost of production by the total number of units. 
     
  (d) General principles. 
 
  (1) Underlying the construction and application of this section is the 
recognition that the LEC network consists of a finite number of BNFs that, when 
bundled in various combinations, can be used to deliver and market a vast 
variety of telecommunications services. Therefore, the determination of the cost 
of a service and the costs of a group of services under this section shall 
involve the identification and costing of BNFs. 
   
  (2) The LRIC studies that the LEC is required to file under this section shall 
assume that the company is operating in the long run and employs least cost 
technologies, as those terms are defined in subsection (c) of this section. 
   
  (3) In order to obtain accurate LRIC study results, the LEC shall avoid the 
use of embedded cost data; when possible, expense items and capital costs shall 
reflect long run incremental costs. Further, the fact that the costs determined 
under this section may differ from the company's embedded costs as determined 
during proceedings under the Public Utility Regulatory Act,  s42 or sec.43 
should in no way cause the company to attribute any of this cost discrepancy to 
LRIC studies for BNFs, services, or groups of services. 
   
  (4) The appropriate methods for service pricing and recovery of the revenue 
requirement will be developed in the rulemaking proceeding mandated under 
subsection (o) of this section. 
   
  (5) When a BNF is used in the provision of two or more services and the cost 
of the BNF does not vary with changes in the relative proportions of the output 
of those services, then the cost of the BNF is a common cost. 
   
  (6) When services share significant common costs, none of the common costs 
shall be included in the LRIC studies for the services individually; instead, 
the company shall identify which services share the common costs and assign the 
common costs to the group of services collectively. Specifically, the LRIC 
studies for residential and business basic local exchange service shall exclude 
any costs associated with the use of the Network Access Channel Basic Level (as 
defined in subsection (e)(1)(A) of this section) and Network Access Channel 
Connection Basic Level (as defined in subsection (e)(2)(A) of this section). 
   
  (7) When two or more groups of services share common costs, none of the common 
costs shall be included in the LRIC studies for groups individually; instead, 
the company shall identify which groups share the common costs and assign the 
common costs to these groups collectively. 
     
  (e) Identification of Basic Network Functions. The LEC shall identify for each 
subcategory of BNFs the relevant and separately identifiable BNFs. The 
determination of the appropriate degree of aggregation of network components, 
functions, or activities into separately identifiable BNFs shall be consistent 
with the principles described in subsection (d) of this section. Furthermore, in 
choosing BNFs, the LEC shall seek to minimize the number of network components, 
functions, or activities that are not included in BNFs. In addition to BNFs the 
company identifies under this subsection, the company shall identify for each 
subcategory of BNFs the following prescribed BNFs. 
 
  (1) Required BNFs for subcategory Network Access Channel. 
 
  (A)  NA Channel Basic Level. A transmission path which provides less than 
1.544 Mbps digital capability. This includes 300 to 3,000 Hz analog voice 
service. 
   
  (B) NA Channel DS-1 Level. A transmission path which has 1.544 MBPS digital 
capability. 
   
  (C) NA Channel DS-3 Level. A transmission path which has 45 MBPS digital 
capability. 
     
  (2) Required BNFs for subcategory Network Access Channel Connection. 
 
  (A) NA Channel Connection Basic Level. An interface for channels which provide 
less then 1. 544 Mbps digital capability. This includes the interface for 300-
3,000 Hz analog voice service which is the basic interface for most voice grade 
services such as. basic local residential and local business service, PBX 
trunks, Centrex-type access lines and voice grade dedicated transport service. 
In addition, this category includes the interface for four frequency bandwidths 
provided for audio channels such as: 200 to 3,500 Hz, 100 to 5,000 Hz, 50 to 
8,000 Hz, and 50 to 15,000 Hz. Also included in this BNF are the interfaces for 
low speed data transmission at speeds of 2.4, 4.8, 9.6, 56 Kbps and all other 
speeds below the T-1 rate of 1.544 Mbps. This interface is for narrowband 
service. 
   
  (B) NA Channel Connection DS-1 Level. An interface for 1.544 MBPS digital 
transmission channels. This interface connects high capacity wideband 
transmission channels which operate in a full duplex, time division (digital) 
multiplexing mode. 
   
  (C) NA Channel Connection DS-3 Level. An interface for 45 MBPS digital 
transmission channels. This interface connects broadband transmission channels 
which operate in full duplex, time division (digital) multiplexing mode. 
     
  (3) Required BNFs for subcategory Channel Performance and Other Features and 
Functions. 
 
  (A)  Standard signalling and transmission level capabilities. Signalling and 
transmission level capabilities suitable for a wide variety of network services 
and applications associated with the BNF NA Channel Basic Level, as defined in 
paragraph (1)(A) of this subsection. 
   
  (B) Nonstandard signalling and transmission level capabilities and other 
features. Signalling and transmission level capabilities and other features and 
functions, other than those defined in subparagraph (A) of this paragraph, such 
as high voltage protection, multiplexing, and bridging. The company is 
encouraged to disaggregate this BNF into smaller BNFs that capture the variety 
of features and functions available to customers. 
     
  (4) Required BNFs for subcategory Interoffice Switching. Interoffice 
Switching. The type of switching that provides for: switching between Network 
Access Channels and Switched Transport facilities which are connected to 
different wire centers; and switching between Network Access Channels and 
Switched Transport facilities when a tandem switch is used as the first point of 
interface to the switched network (e.g., connection of facilities from an 
interexchange carrier's point of network interface). 
   
  (5) Required BNFs for subcategory Intraoffice Switching. Intraoffice 
Switching. Switching between two or more Network Access Channels served from the 
same wire center. 
   
  (6)  Required BNFs for subcategory Switching Features. 
 
  (A) Hunting Arrangements. An optional function available to customers with 
multiple local exchange access lines in service. 
   
  (B) Custom Calling Features. Various optional features which provide added 
calling convenience. 
   
  (C)  Central Office Automatic Call Distribution. The provision of call 
distribution as an integrated function of certain electronic central offices 
equipped to provide this capability. This function permits an equal distribution 
of a large volume of incoming calls to predesignated groups of answering 
positions, referred to as agent positions. 
   
  (D) Central Office Based PBX-Type Functions. A business communications system 
furnished from stored program control central offices that provides the 
equivalent of customer premises PBX services through the use of central office 
hardware and software as well as through local transport facilities from the 
central office to the customer premises. Included in this BNF shall be only 
hardware specific to this type of service, processor or memory usage involved in 
special features for this type of service, and any software or software right to 
use fees associated with this type of service. This BNF should exclude any 
network functions that are already identified as other BNFs. 
     
  (7) Required BNFs for subcategory Dedicated Transport. 
 
  (A) Dedicated Transport Termination. An interface which provides for the 
transmission conversions (e.g. , multiplexing) required between channel 
connection and dedicated transport facilities. 
   
  (B) Dedicated Transport Facility. The full period, bandwidth specific (e.g., 
DS-0, DS-1, and DS-3), interoffice transmission paths established between two 
points of dedicated transport termination, using the economies of shared 
wideband digital fiber optic carrier systems. 
     
  (8)  Required BNFs for subcategory Switched Transport. 
 
  (A) Switched Transport Termination. An interface which provides for the 
transmission conversion (e.g., multiplexing) required between the switching 
function and switched transport facilities. 
   
  (B) Switched Transport Facility. The temporary interoffice transmission paths 
established between two points of switched transport termination, using the 
economies of shared wideband digital fiber optic carrier systems. 
   
  (C) Switched Transport Tandem Switching. The intermediate points of switching 
used as an economic surrogate to direct routing of interoffice facilities in the 
provision of switched transport. 
     
  (9) Required BNFs for subcategory Billing and Collection: Billing and 
Collection. The function of compiling the information needed for customer 
billing, preparing the customer bill statement, disbursing the bill and 
collecting the customer payments (this includes any collection activities 
required for late payment or non-payment of billing amount due). 
   
  (10)  Required BNFs for subcategory Measurement: Measurement. The function of 
assembling, collating and transmitting end office switch recorded call data 
(occurrence and duration). 
   
  (11) Required BNFs for subcategory Operator Services: Operator Services. The 
role of providing a number of live or mechanized assistance functions to aid 
customers in the following ways. obtaining customer telephone number, street 
address and ZIP code information (directory assistance); providing new telephone 
numbers or explanatory information to callers who dial numbers which have been 
changed or disconnected (intercepts); providing assistance to customers in 
completing operator handled toll or local calls (collect, credit card, third 
party, station-to-station or person-to-person); checking busy lines to make sure 
the line is not out of service (busy verification); and interrupting busy lines 
(busy interruption). These Operator Services are provided to end user customers 
as well as local exchange and interexchange carriers. 
     
  (f)  LRIC studies for individual BNFs. The LEC shall perform a LRIC study for 
each of the BNFs identified under subsection (e) of this section. The company 
shall perform the LRIC studies consistent with the principles described in 
subsection (d) of this section. Additionally, the company shall use the 
following guidelines in determining the LRIC for individual BNFs. 
 
  (1)  Relevant increment of output. For the purposes of this subsection, the 
relevant increment of output, as that term is used in subsection (c)(16) of this 
section, shall be the level of output necessary to satisfy total current demand 
levels for all services using the BNF in question. 
   
  (2)  Relating expenses to BNFs. To the extent it is possible, the company 
shall avoid the use of embedded cost data and shall determine expenses 
consistent with the principles of long run incremental costing. 
 
  (A) Common expenses. Common expenses that are not directly attributable, using 
the cost causation principle, to the BNF shall be excluded. 
   
  (B) Nonrecurring expenses. The expenses of nonrecurring activities shall be 
separately identified. 
   
  (C) Taxes. Any tax expenses not directly attributable, using the cost 
causation principle, shall be excluded from the LRIC study for individual BNFs. 
Specifically, taxes associated with the provision of services that use more than 
one BNF shall not be included in the BNF LRICs. 
     
  (3)  Least cost technology. LRIC studies shall assume the use of least cost 
technology. The choice of least cost technologies, however, shall: 
 
  (A)  be restricted to technologies that are currently available on the market 
and for which vendor prices can be obtained; and 
   
  (B) be consistent with the level of output necessary to satisfy current demand 
levels for all services using the BNF in question. 
     
  (4) Network topology. LRIC studies shall use the existing network topology. 
   
  (5) Cost of money. The company shall use the most recent commission approved 
rate of return for the company, as that term is used in sec.23.21(c)(1) of this 
title (relating to Cost of Service). 
   
  (6) Rate of depreciation. The company shall use the most recent commission 
approved rates of depreciation for the company. 
   
  (7) Measure of unit cost. LRIC studies shall identify the appropriate measure 
of unit cost for a BNF (e.g., minutes of use, access line). The measure of unit 
cost chosen for a BNF shall correspond to the basis upon the costs of the BNF 
are incurred. The measure of unit cost may be multidimensional; for example, it 
may have both time and distance components. In identifying the appropriate 
measure of unit cost, the company shall ignore the current rate structure for 
tariffed services using the BNF. 
   
  (8)  Determination of unit cost. Using the measure of unit cost identified 
under paragraph (7) of this subsection, the company shall calculate unit cost 
for the BNF based on the assumption of full capacity utilization of the BNF, 
which should allow for engineered spare capacity. 
   
  (9) Cost drivers. LRIC studies shall identify and account for all relevant 
cost drivers. LRIC studies for certain BNFs shall at a minimum account for the 
cost drivers specified below. 
 
  (A) Cost drivers for NA Channel Basic Level, NA Channel DS-1 Level, and NA 
Channel DS-3 Level. The LRICs for these BNFs shall systematically account for 
variations in costs caused by variations in: 
 
  (i) the density of a wire center; 
   
  (ii) the size of a wire center; and 
   
  (iii) the distance. 
     
  (B) Cost drivers for NA Connection Basic Level, NA Connection DS-1 Level, and 
NA Connection DS-3 Level. The LRICs for these BNFs shall systematically account 
for variations in costs caused by variations in: 
 
  (i) the density of a wire center; and 
   
  (ii) the size of a wire center. 
     
  (C)  Cost drivers for Intraoffice Switching and Interoffice Switching. The 
LRICs for these BNFs shall systematically account for variations in costs caused 
by variations in: 
 
  (i) the density of a wire center; 
   
  (ii) the size of a wire center; and 
   
  (iii) the time of day. 
     
  (D) Cost drivers for Dedicated Transport Facilities and Termination. The LRICs 
for these BNFs shall systematically account for variations in costs caused by 
variations in: 
 
  (i) the size of a wire center; and 
   
  (ii) the distance. 
     
  (E) Cost drivers for Switched Transport Facilities, Termination and Tandem 
Switching. The LRICs for these BNFs shall systematically account for variations 
in costs caused by variations in: 
 
  (i) the size of a wire center; 
   
  (ii)  the distance; and 
   
  (iii) time of day. 
     
  (F) Cost drivers for Measurement. The LRIC for this BNF shall systematically 
account for variations in costs caused by variations in: 
 
  (i) the density of a wire center; 
   
  (ii) the size of a wire center; 
   
  (iii)  the time of day; and 
   
  (iv) the duration of a call. 
     
  (G) Cost drivers for Operator Services. The LRIC for this BNF shall 
systematically account for variations in costs caused by variations in the type 
of operator services calls. 
       
  (g) LRIC studies for tariffed services. The LEC shall perform a service LRIC 
for each tariffed service. The service LRIC shall be calculated as the sum of 
the costs caused by a service's use of BNFs and any other service specific costs 
not identified as separate BNFs, such as expenses of billing, service specific 
advertising and marketing, and service specific taxes. The LRIC study for 
tariffed services shall be consistent with the principles described in 
subsection (d) of this section. Additionally, the company shall use the 
following guidelines in determining the LRIC for individual tariffed services. 
 
  (1) Mapping of BNFs and costs to tariffed services. The LRIC study shall 
identify the BNFs that are used in the provision of the tariffed service; the 
long run incremental costs for the tariffed service shall include the costs 
associated with this usage. The costs associated with the service's use of a BNF 
shall be calculated as the product of the unit cost for the BNF (as determined 
under subsection (f)(8) of this section) and the demand of the service for that 
BNF. 
   
  (2)  Identification of other costs. The LRIC study shall include all service 
specific costs (e.g., expenses of billing, marketing, customer service or 
service specific taxes) related to the provision of the service that are not 
included in the costs for the BNFs. 
   
  (3) Exclusion of common costs. The LRIC study for an individual tariffed 
service shall exclude any costs that are common costs (as defined in subsection 
(c)(5) of this section). Specifically, the LRIC studies for residential and 
business basic local exchange service shall exclude any costs associated with 
the use of the Network Access Channel Basic Level (as defined in subsection 
(e)(1)(A) of this section) and Network Access Channel Connection Basic Level (as 
defined in subsection (e)(2)(A) of this section). 
   
  (4) Relevant increment of output. For the purposes of this subsection, the 
relevant increment of output, as that term is used in subsection (c)(16) of this 
section, shall be the level of output necessary to satisfy current demand levels 
for the service. 
   
  (5) Relating expenses to services. To the extent it is possible, the company 
shall avoid the use of embedded cost data and shall determine expenses 
consistent with the principles of long run incremental costing. 
 
  (A)  Common expenses. Common expenses that are not directly attributable, 
using the cost causation principle, to the service shall be excluded. 
   
  (B)  Nonrecurring expenses. The expenses of nonrecurring activities shall be 
separately identified. 
   
  (C) Taxes. Any tax expenses not directly attributable, using the cost 
causation principle, shall be excluded from the LRIC study for individual 
services. 
     
  (6) Least cost technology. LRIC studies shall assume the use of least cost 
technology. The choice of least cost technologies, however, shall: 
 
  (A) be restricted to technologies that are currently available on the market 
and for which vendor prices can be obtained; and 
   
  (B) be consistent with the level of output necessary to satisfy current demand 
levels for all services using the BNF in question. 
     
  (7) Network topology. LRIC studies shall use the existing network topology. 
   
  (8) Cost of money. The company shall use the most recent commission approved 
rate of return for the company, as that term is used in sec.23.21(c)(1) of this 
title (relating to Cost of Service). 
   
  (9) Rate of depreciation. The company shall use the most recent commission 
approved rates of depreciation for the company. 
     
  (h) Identification of groups of tariffed services that share significant 
common costs. The company shall identify all groups of services (as defined in 
subsection (c)(13) of this section) that share significant common costs. To the 
extent that two or more groups identified by the company share costs that are 
common and can not be assigned to any one group individually, the company shall 
identify which groups are responsible for the common costs and assign the common 
costs to these groups collectively. The company shall continue this 
identification process until a hierarchy of groups has been identified that 
accounts for the total long run costs of the company. Further, the LEC shall 
identify for each group of services the source of the common costs as follows. 
 
  (1)  Identification of BNFs that are common. For each group of tariffed 
services identified under this subsection, the company shall identify the BNFs 
that are common and whose costs are common costs to those services. 
   
  (2)  Identification of other sources of common costs. For each group of 
tariffed services identified under this subsection, the company shall identify 
any other sources of common costs, consistent with the principles described in 
subsection (d) of this section, that are not already identified under paragraph 
(1) of this subsection. 
     
  (i) LRIC studies for groups of tariffed services that share significant common 
costs. The LEC shall perform LRIC studies for each group of services identified 
under subsection (h) of this section. The group LRIC shall be calculated as the 
sum of the LRICs (as determined under subsection (g) of this section) for the 
services in the group and the common costs for those services (as identified 
under subsection (h) of this section). The group LRIC shall exclude any costs 
that remain if the entire output of the group were not produced. The LRIC study 
shall be consistent with the principles described in subsection (d) of this 
section. Additionally, the company shall use the following guidelines in 
determining the LRIC for groups of services. 
 
  (1) Relevant increment of output. When the LRIC is computed for a group of 
services, the relevant increment of output, as that term is used in subsection 
(c)(16) of this section, shall be the level of output necessary to satisfy 
current demand levels for the services in the group. 
   
  (2) Relating expenses to groups of services. To the extent it is possible, the 
company shall avoid the use of embedded cost data and shall determine expenses 
consistent with the principles of long run incremental costing. 
 
  (A) Common expenses. Common expenses that are not directly attributable, using 
the cost causation principle, to the group of services shall be excluded. 
   
  (B) Nonrecurring expenses. The expenses of nonrecurring activities shall be 
separately identified. 
   
  (C) Taxes. Any tax expenses not directly attributable, using the cost 
causation principle, shall be excluded from the LRIC study for the group of 
services. 
     
  (3)  Least cost technology. LRIC studies shall assume the use of least cost 
technology. The choice of least cost technologies, however, shall: 
 
  (A)  be restricted to technologies that are currently available on the market 
and for which vendor prices can be obtained; and 
   
  (B) be consistent with the level of output necessary to satisfy current demand 
levels for all services using the BNF in question. 
     
  (4) Network topology. LRIC studies shall use the existing network topology. 
   
  (5) Cost of money. The company shall use the most recent commission approved 
rate of return for the company, as that term is used in sec.23.21(c)(1) of this 
title (relating to Cost of Service). 
   
  (6) Rate of depreciation. The company shall use the most recent commission 
approved rates of depreciation for the company. 
     
  (j) Filing requirements for LEC provided workplan. Within 45 days of the 
effective date of this section, the LEC shall file with the commission and the 
Office of Public Utility Counsel (OPUC) a plan for compliance with the 
provisions of this section. The workplan shall be consistent with the 
principles, guidelines and requirements set forth in this section and shall be 
reviewed in accordance with the procedures established in subsection (m) of this 
section. The workplan submitted by the LEC shall include the following 
components. 
 
  (1) Identification of BNFs and cost methodology. The workplan submitted by the 
LEC shall discuss the BNFs identified under this section and include a detailed 
discussion of the cost methodology the LEC proposes to use for the studies 
required under this section. Additionally, the workplan shall meet the following 
requirements. 
 
  (A) List of BNFs. The workplan shall include a list of all BNFs that the LEC 
has identified pursuant to subsection (e) of this section. 
   
  (B) Additional BNFs. If the LEC proposes to identify BNFs in addition to the 
BNFs identified in subsection (e) (1)-(12) of this section, the workplan shall 
include a description of each of the BNFs that the LEC proposes to identify, and 
a discussion of why these BNFs should be identified in addition to the BNFs 
identified in subsection (e)(1) -(12) of this section. 
   
  (C) Definitions of BNFs. For each BNF identified under subsection (e) of this 
section, the workplan shall include, a precise definition of the BNF, including 
the points of demarcation in the LEC's network between each BNF and other BNFs. 
   
  (D) Diagrams. For each BNF identified under subsection (e) of this section, 
the workplan shall include a diagram that illustrates the BNF's role in the 
provision of LEC services. 
   
  (E) Least cost technology choices for BNFs. For each BNF identified under 
subsection (e) of this section, the workplan shall identify which technology or 
technologies (e.g., fiber optic cable, digital switching systems) will be 
considered the least cost technology (as defined in subsection (c)(14) of this 
section) for the BNF. 
   
  (F) Identification of investments. The workplan shall include a discussion of 
the methodology that the LEC proposes to use in identifying investments 
associated with each of the BNFs identified under subsection (e) of this 
section. 
   
  (G) Data sources. For each BNF identified under subsection (e) of this 
section, the workplan shall include a discussion of the data sources to be used 
in developing the costs of the BNF. 
   
  (H) Service demand. For each BNF identified under subsection (e) of this 
section, the workplan shall include a discussion of the data sources to be used 
for service demand in developing the costs of the BNF. 
   
  (I) Automated cost models. The workplan shall include a description of any 
automated cost models which the LEC proposes to use in developing the cost of 
the BNF. For each such automated cost model, the workplan shall provide in 
detail the algorithm of the cost model and demonstrate that the methodology of 
the cost model is consistent with the long run incremental cost methodology 
described in this section. 
   
  (J)  Flowcharts. For each type of cost study required under this section, the 
workplan shall include a detailed flowchart that identifies all models used in 
the study and the interrelationships between the inputs and outputs of the 
models. 
   
  (K) List of cost drivers. For each BNF identified under subsection (e) of this 
section, the workplan shall identify the cost drivers that the LEC has 
identified pursuant to subsection (f)(9) of this section. 
   
  (L) Additional cost drivers. If the LEC proposes to identify and account for 
cost drivers in addition to the cost drivers identified in subsection (f)(9)(A)-
(G) of this section, the workplan shall include a description of each of the 
cost drivers that the LEC proposes to use, and a discussion of why these cost 
drivers should be used in addition to the cost drivers identified in subsection 
(f)(9)(A)-(G) of this section. 
   
  (M)  Loading factors. The workplan shall include a discussion of the 
methodology that the LEC proposes to use in identifying operating expenses, 
depreciation and taxes relating to each of the BNFs identified under subsection 
(e) of this section. 
   
  (N) Categorization of BNFs. For each BNF identified under subsection (e) of 
this section, the workplan shall identify the category and subcategory of BNFs 
(as defined in subsection (c) of this section) under which the BNF is 
categorized. 
   
  (O) Mapping from BNFs to tariffed services. For each BNF identified under 
subsection (e) of this section, the workplan shall include a list of all 
tariffed services that use the BNF. 
   
  (P) Mathematical representation. The workplan shall include a formal 
mathematical statement describing the cost relationships between BNFs, tariffed 
services, and groups of tariffed services. This statement shall translate the 
principles, guidelines and requirements of this section into the traditional 
mathematical terms used in the economic literature. Specifically, the company 
shall include a mathematical statement that describes the functional 
relationship between the long run incremental costs for a tariffed service and a 
service's use of BNFs. 
     
  (2) Waiver requests. 
 
  (A) Waiver for required BNF. The workplan shall include a request for waiver 
if the company finds that a required BNF specified in subsection (e)(1)-(12) of 
this section is inappropriate for its network. The waiver request shall be 
accompanied by a statement demonstrating why the required BNF is inappropriate. 
   
  (B) Waiver for required cost driver. The workplan shall include a request for 
waiver if the company finds that a required cost driver specified in subsection 
(f)(9)(A)-(G) of this section is inappropriate for its network. The waiver 
request shall be accompanied by a statement demonstrating why the required cost 
driver is inappropriate. 
     
  (3) Identification of groups of services. The workplan submitted by the LEC 
shall include a list of all groups of services that the LEC has identified 
pursuant to subsection (h) of this section. The list shall meet the following 
requirements. 
 
  (A) Identification of services in groups. The list shall identify for each 
group the services that are included in the group. When the group contains 
smaller groups of services, the smaller groups that are included in the group 
shall be identified. 
   
  (B) Identification of BNFs that represent common costs. The list shall 
identify the BNFs that represent the common costs for the group of services (as 
identified under subsection (h)(1) of this section) and other sources of common 
costs for the group (as identified under subsection (h)(2) of this section). 
     
  (4)  Proposed schedule for completion and filing of cost studies. The workplan 
submitted by the LEC shall include a proposed completion and filing date for. 
the LRIC study for each BNF identified under subsection (e) of this section, 
including the required BNFs specified in subsection (e)(1)-(12) of this section; 
the LRIC study for each tariffed service offered by the LEC; and the LRIC study 
for each group of services identified under subsection (h) of this section. The 
proposed schedule submitted by the LEC shall meet the following requirements. 
 
  (A) If the schedule proposed by the LEC would result in completion of any cost 
study later than 18 months following the effective date of this section, the LEC 
should discuss in detail the reasons why the cost study may not be completed 
within 18 months. 
   
  (B) In no event should the schedule proposed by the LEC result in the 
completion of any cost study later than thirty months following the effective 
date of this section. 
   
  (C) The schedule proposed by the LEC should space the completion and filing of 
cost studies relatively evenly over the course of the period of time allowed for 
completing the studies and avoid, to the greatest degree possible, the filing of 
large quantities of studies at any one date. 
   
  (D) The schedule proposed by the LEC shall not result in completion of any 
LRIC study for a tariffed service before the completion of the LRIC studies for 
all the BNFs that are used in the provision of the tariffed service. 
     
  (5)  Prototype LRIC studies for BNFs, tariffed services, and groups of 
tariffed services. The workplan shall provide prototype LRIC studies for BNFs, 
tariffed services, and groups of tariffed services, to serve as models for the 
studies filed pursuant to this section. In devising the prototype studies the 
LEC shall consider the following guidelines. 
 
  (A) Completeness. The prototype LRIC studies shall be structured to provide 
for all information (e.g. , inputs, outputs, assumptions) necessary to 
understand the studies and to reasonably verify their accuracy. 
   
  (B) Consistency and efficiency. The company shall seek to organize the 
prototype studies in a manner that clearly demonstrates the relationships and 
consistencies between studies. To the extent that a number of studies use 
automated models, standardized loading factors or other standardized methods, 
the company shall propose a way of documenting these methods that reduces 
unnecessary duplication. 
   
  (C)  PC-based spreadsheets and open algorithms. The company shall create the 
prototype studies both on paper and on personal computer based electronic 
spreadsheets. In designing the personal computer based electronic spreadsheet 
versions the company shall seek to create an open algorithm that can be used and 
modified by the commission staff and other users. 
       
  (k)  Requirements for initial filings of LRIC studies. The LEC shall file with 
the commission and OPUC the LRIC studies required under this section. The LRIC 
studies shall be consistent with the principles, guidelines and requirements set 
forth in this section and shall be reviewed in accordance with the procedures 
established in subsection (n) of this section. In accordance with the workplan 
approved under subsection (m) of this section, the LEC shall file LRIC studies 
for. 
 
  (1) each BNF identified under subsection (e) of this section, including those 
that are specified as required BNFs under subsection (e)(1)-(12) of this 
section; 
   
  (2) each tariffed service; and 
   
  (3) each group of services identified under subsection (h) of this section. 
     
  (l) Requirements for subsequent filings of LRIC studies. The LRIC studies 
required by this subsection shall be consistent with the principles, guidelines 
and requirements set forth in this section and the workplan approved in 
subsection (m) of this section and shall be reviewed in accordance with the 
procedures established in subsection (n) of this section. 
 
  (1) Updated studies. Thirty-six months after the effective date of the 
section, and every six months thereafter, the LEC shall file with the commission 
and OPUC updated versions of all filings required under this section. The LEC is 
not required to update its filings for those studies where no significant 
changes have occurred. 
   
  (2) Provisions for new BNFs. When significant technological or other changes 
occur that necessitate a change in the definition of current BNFs or the 
identification of new BNFs, the LEC shall file with the commission and OPUC 
updated versions for all affected LRIC studies or new studies as appropriate. 
   
  (3) Provisions for new services. For each application for a service filed 
pursuant to this title, the LEC shall file with the commission and OPUC a LRIC 
study for the service consistent with the principles described in subsection (d) 
of this section and the specific requirements set forth in subsection (g) of 
this section. 
   
  (4) Unbundling of existing tariffed services. When an application filed 
pursuant to this title proposes a service that previously had been bundled with 
other BNFs into a tariffed service, the LEC shall carefully reexamine the 
identification of groups of services that share significant common costs (as 
required under subsection (h) of this section). If the new service significantly 
changes the identification of groups of services and the identification of 
common costs, the LEC should update all studies required under this section that 
are affected by these changes. 
     
  (m) Review process for LEC workplan. An LEC workplan considered under this 
section shall be reviewed administratively to determine whether the LEC's 
workplan is consistent with the principles, guidelines and requirements set 
forth in this section. 
 
  (1) Sufficiency. The workplan shall be examined for sufficiency. To be 
sufficient, the LEC workplan shall include the components required by subsection 
(j) of this section. If the presiding examiner or the commission staff concludes 
that material deficiencies exist in the workplan, the LEC shall be notified 
within 15 days of the filing date of the specific deficiency in its workplan. 
The LEC shall have 15 days from the date it is notified of the deficiency to 
file a corrected workplan. 
   
  (2)  Time Schedule. 
 
  (A) No later than 45 days after the filing date of the workplan, any party 
that demonstrates a justiciable interest may file with the presiding examiner 
written comments or recommendations concerning the workplan. 
   
  (B) No later than 55 days after the filing date of the workplan, OPUC may file 
with the presiding examiner written comments or recommendations concerning the 
workplan. 
   
  (C) No later than 65 days after the filing date of the workplan, the 
commission staff shall file with the presiding examiner written comments or 
recommendations concerning the workplan. 
   
  (D) No later than 75 days after the filing date of the workplan, any party 
that demonstrates a justiciable interest, OPUC, or the LEC may file with the 
presiding examiner a written response to the commission staff's recommendation. 
   
  (E) No later than 85 days after the filing date of the workplan, the presiding 
examiner shall complete an administrative review to determine whether the LEC's 
workplan is consistent with the principles, guidelines and requirements set 
forth in this section. The examiner shall approve the workplan or approve the 
workplan with modification. 
     
  (3) Requests for Information. While the workplan is being administratively 
reviewed, the commission staff, OPUC, and any party that demonstrates a 
justiciable interest may submit requests for information to the LEC. Three 
copies of all answers to such requests for information shall be provided within 
10 days after receipt of the request by the LEC to the commission staff, OPUC 
and any party that demonstrates a justiciable interest. 
   
  (4) Suspension. At any point within the first 45 days of the review process, 
the presiding examiner, the commission staff, OPUC, the LEC, or any party than 
demonstrates a justiciable interest may request that the review process be 
suspended for 30 days. The examiner may grant a request for suspension only if 
he or she has determined that the party has demonstrated that good cause exists 
for such suspension. 
   
  (5) Effective date of the LEC workplan. The effective date of the LEC workplan 
shall be the date it is approved by the presiding examiner. 
     
  (n) Review process for LRIC studies. A LRIC study considered under this 
section shall be reviewed administratively to determine whether the LEC's LRIC 
study is consistent with the principles, guidelines and requirements set forth 
in this section. 
 
  (1) Sufficiency. The LRIC study shall be examined for sufficiency. To be 
sufficient, the LRIC study shall include the components required by the workplan 
approved under subsection (m) of this section. If the presiding examiner or the 
commission staff concludes that material deficiencies exist in the LRIC study, 
the LEC shall be notified within 15 days of the filing date of the specific 
deficiency in its LRIC study. The LEC shall have 15 days from the date it is 
notified of the deficiency to file a corrected LRIC study. 
   
  (2) Time Schedule. 
 
  (A) No later than 45 days after the filing date of the LRIC study, any party 
that demonstrates a justiciable interest may file with the presiding examiner 
written comments or recommendations concerning the LRIC study. 
   
  (B) No later than 55 days after the filing date of the LRIC study, OPUC may 
file with the presiding examiner written comments or recommendations concerning 
the LRIC study. 
   
  (C) No later than 65 days after the filing date of the LRIC study, the 
commission staff shall file with the presiding examiner written comments or 
recommendations concerning the LRIC study. 
   
  (D) No later than 75 days after the filing date of the workplan, any party 
that demonstrates a justiciable interest, OPUC, or the LEC may file with the 
presiding examiner a written response to the commission staff's recommendation. 
   
  (E) No later than 85 days after the filing date of the LRIC study, the 
presiding examiner shall complete an administrative review to determine whether 
the LEC's LRIC study is consistent with the principles, guidelines and 
requirements set forth in this section. The examiner shall approve the LRIC 
study or approve the LRIC study with modification. 
     
  (3) Requests for Information. While the LRIC study is being administratively 
reviewed, the commission staff, OPUC, and any party that demonstrates a 
justiciable interest may submit requests for information to the LEC. Three 
copies of all answers to such requests for information shall be provided within 
10 days after receipt of the request by the LEC to the commission staff, OPUC 
and any party that demonstrates a justiciable interest. 
   
  (4) Suspension. At any point within the first 45 days of the review process, 
the presiding examiner, the commission staff, OPUC, the LEC, or any party than 
demonstrates a justiciable interest may request that the review process be 
suspended for 30 days. The examiner may grant a request for suspension only if 
he or she has determined that the party has demonstrated that good cause exists 
for such suspension. 
   
  (5) Effective date of the LRIC study. The effective date of the LRIC study 
shall be the date it is approved by the presiding examiner. 
     
  (o)  Pricing rule. Six months after the effective date of the workplan (as 
defined in subsection (m)(5) of this section), the commission shall initiate a 
rulemaking proceeding to develop a pricing methodology for LEC services that is 
consistent with the cost information obtained under this section. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9320980 
  John M. Renfrow 
 Secretary of the Commission 
 Public Utility Commission of Texas 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 458-0100 
         
                 Part IV. Texas Department of Licensing and Regulation 
  Chapter 67. Auctioneers 
  
  16 TAC sec.sec.67.10, 67.21, 67.22 
 
  The Texas Department of Licensing and Regulation proposes amendments to 
sec.sec.67.10, 67.21, and 67.22, concerning the licensing of auctioneers. 
 Section 67.10 and sec.67.21 clarify the tasks an associate auctioneer must 
perform under supervision of a licensed auctioneer to qualify for an auctioneer 
license without examination;  s67.22 establishes a cut-off date for receipt of 
an exam application and a time limit on eligibility for a license after passing 
an exam. 
 James D. Brush II, director, policies and standards division, has determined 
that for the first five-year period the sections are in effect there will be no 
fiscal implications for state or local government as a result of enforcing or 
administering the sections. 
 Mr. Brush also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be that associate auctioneers will get more thorough training, 
which will increase consumer protection, and limiting eligibility will ensure 
that a license is not obtained without reexam after laws have had time to be 
changed. There will be no effect on small businesses. There is no anticipated 
economic cost to persons who are required to comply with the sections as 
proposed. 
 Comments on the proposal may be submitted to James D. Brush II, Director, 
Policies and Standards Division, P.O. Box 12157, Austin, Texas 78711. 
 The amendments are proposed under Texas Civil Statutes, Article 8700, which 
provide the Texas Department of Licensing and Regulation with the authority to 
promulgate and enforce a code of rules to assure compliance with the Act. 
 
 
  sec.67.10. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
  <nl>   Employed by a licensed auctioneer-Participating in all aspects of the 
auction business under the supervision of a licensed auctioneer. 
 
   
  sec.67.21. License Requirements-Associate Auctioneers. 
 
  (a) (No change.) 
   
  <nl>(b) An associate auctioneer must participate in all aspects of the auction 
business involving the laws of this state. He must bid-call in at least five 
auctions, and he must participate in, but not have sole responsibility for, each 
of the following tasks at least once: appraising, inventorying, advertising, 
property make ready, site selection and preparation, lotting, registration, 
clerking, cashiering, bid calling, ring working, property check out, security, 
accounting, managing an escrow account. 
   
  <nl>(c)<ol>[(b)] Any change of employment by a licensed associate auctioneer 
must be submitted to the department's Austin office prior to such action, and a 
letter must be submitted by the former employer stating <nl>the areas in which 
the associate auctioneer participated and the<ol> number of auction sales at 
which the associate participated as bid-caller. 
 
     
  sec.67.22. License Requirements-Examinations. 
 
  <nl>(a) Applications for examinations must be complete and must be postmarked 
at least 52 days before the scheduled examination. 
   
  <nl>(b)<ol>[(a)] An applicant who wishes to reschedule his examination for a 
later date must notify the department in writing, postmarked no later than five 
working days before the exam date. Two free reschedules are allowed. 
   
  <nl>(c)<ol>[(b)] An applicant who does not take an examination for which he 
was scheduled, and does not notify the department that he will not take the 
exam, must pay another exam fee. 
   
  <nl>(d) An applicant who passes an examination may be licensed up to two years 
from the date on the grade notice sent by the department. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 26, 1993. 
 TRD-9320920 
  Jack W. Garison 
 Executive Director 
 Texas Department of Licensing and Regulation 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 463-3127 
         
                 
  TITLE 22. EXAMINING BOARDS 
 Part V. Texas State Board of Dental Examiners 
  Chapter 101. Dental Licensure 
  
  General Qualifications 
 
  22 TAC sec.101.1 
 
  The Texas State Board of Dental Examiners proposes an amendment to sec.101. 1, 
concerning general qualifications. Rule 101.1 states the general qualifications 
for any person desiring to practice dentistry in the State of Texas. 
 C. Thomas Camp, Executive Director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Camp also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to ensure that applicants for dental licensure receive the 
highest standards and to assure that the people of the State of Texas receive 
the highest quality of dental care. Also, to allow access to dental licensure to 
as many applicants in order to serve the people of Texas. There will be no 
effect on small businesses. There is no anticipated economic cost to persons who 
are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Mei Ling Clendennen, Texas State 
Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 3800, Austin, Texas 
78701. 
 The amendment is proposed under Texas Civil Statutes, Article 4544, sec.2, 
which provide the Texas State Board of Dental Examiners with the authority to 
adopt and enforce such rules and regulations not inconsistent with the laws of 
the state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety. 
 
 
  sec.101.1. General Qualifications. 
 
  (a) (No change.) 
   
  (b) An applicant for licensure from the Texas State Board of Dental Examiners 
shall: 
 
  (1)-(2) (No change.) 
   
  (3) Present proof of graduation from a dental school accredited by the 
Commission on Dental Accreditation of the American Dental Association; <nl>or, 
pursuant to Texas Civil Statutes, Article 4544, sec.2, if an applicant is a 
foreign and/or non-accredited dental school graduate, the applicant shall 
present evidence satisfactory to the Board that the applicant is a graduate of a 
dental school and has passed a qualifying clinical exam administered by Baylor 
College of Dentistry, The University of Texas Health Science Center at Houston, 
Dental Branch, or the University of Texas Health Science Center at San Antonio, 
Dental School. 
   
  (4) Present proof of having passed the examination for dentists in its 
entirety given by the National Board of Dental Examiners. <nl>Foreign and/or 
non-accredited graduates, as referenced in paragraph (3) of this subsection, 
must present proof of having passed the National Board Exam in its entirety to 
the Board prior to taking the qualifying exam. 
   
  (5)-(8) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9321018 
  C. Thomas Camp 
 Executive Director 
 Texas State Board of Dental Examiners 
    Proposed date of adoption: May 7, 1993 
 For further information, please call: (512) 463-6400 
         
               
  Licensure by Credentials-Dentists 
 
  22 TAC sec.101.7 
 
  The Texas State Board of Dental Examiners proposes new  s101.7 concerning 
licensure by credentials-dentists. New  s101.7 states that the Texas State Board 
of Dental Examiners may license applicants by credentials, without examination, 
who meet all TSBDE and State of Texas minimum applicant requirements and general 
licensure qualifications and all criteria as stated. 
 C. Thomas Camp, Executive Director, has determined that for the first five-year 
period the section is in effect there will be no fiscal implications for state 
or local government as a result of enforcing or administering the section. 
 Mr. Camp also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be increased access to dental care. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Mei Ling Clendennen, Texas State 
Board of Dental Examiners, 333 Guadalupe, Tower 3, Suite 3800, Austin, Texas 
78701. 
 The new section is proposed under Texas Civil Statutes, Article 4545a which 
provide the Texas State Board of Dental Examiners with the authority to adopt 
and enforce such rules and regulations not inconsistent with the laws of the 
state as may be necessary for the performance of its duties and/or to ensure 
compliance with the state laws relating to the practice of dentistry to protect 
the public health and safety. 
 
 
  sec.101.7. Licensure by Credientials-Dentists. The Texas State Board Dental 
Examiners may license applicants by credentials, without examination, who meet 
all TSBDE and State of Texas minimum applicant requirements and general 
licensure qualifications and all of the following criteria: 
 
  (1) has graduated from a dental school accredited by the Commission on Dental 
Accreditation; 
   
  (2) is currently licensed in another jurisdiction whose initial licensure 
examination is comparable to the TSBDE licensure examination; 
   
  (3) has been in practice or full-time dental education for a minimum of five 
continuous years immediately prior to applying for licensure; 
   
  (4) is endorsed by the state board of dentistry in the state of current 
practice; 
   
  (5) has not been the subject of final or is not the subject of pending 
disciplinary action in any state in which she/he is or has been licensed; 
   
  (6) has not failed the Texas State Board of Dental Examiners licensing 
examination within the last three years; 
   
  (7) has successfully passed background checks for criminal or fraudeulent 
activities to include information from the National Practitioner Data Bank, 
and/or the AADE Clearinghouse for Disciplinary Action; 
   
  (8) is not involved in litigation, pending or otherwise, against the Texas 
State Board of Dental Examiners. Each candidate for licensure by credentials 
must submit to the credentials review committee of the Board the above required 
documents and information, and other documents or information that may be 
requested, to enable the committee to appropriately evaluate an application. An 
application for licensure by credentials must be accompanied by a $200 
application fee. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9321020 
  C. Thomas Camp 
 Executive Director 
 Texas State Board of Dental Examiners 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 463-6400 
         
                 Part XI. Board of Nurse Examiners 
  Chapter 217. Licensure and Practice 
  
  22 TAC sec.217.1, sec.217.3 
 
  The Board of Nurse Examiners proposes an amendment to sec.217.1 and new 
sec.217.3, concerning definitions and candidate with a disability. In 1992 the 
Americans with Disabilities Act (ADA) required that persons with disabilities be 
offered the opportunity to demonstrate competency in their chosen field of 
endeavor. The National Council has provided interpretations of this law as it 
relates to nursing licensure and examination. The proposed change and new 
section support language changes in applications and processing of requests from 
a candidate with a disability. 
 Louise Waddill, Ph.D., R.N., executive director, has determined that for the 
first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 Ms. Waddill also has determined that for each year of the first five years the 
sections are in effect the public benefit anticipated as a result of enforcing 
the sections will be bringing the rules and regulations into compliance with ADA 
simplifies procedures for providing reasonable accommodations based on 
documented need of the candidate with a disability. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to Louise Waddill, R.N., Ph.D., 
Executive Director, Board of Nurse Examiners, Box 140466, Austin, Texas 78714. 
 The amendment and new section are proposed under Texas Civil Statutes, Article 
4514, sec.1, which provide the Board of Nurse Examiners with the authority to 
make and enforce all rules and regulations necessary for the performance of its 
duties and conducting of proceedings before it. 
 
 
  sec.217.1. Definitions.  The following words and terms, when used in this 
chapter, shall have the following meanings, unless the context clearly indicates 
otherwise. 
   
   [Appropriate accommodations for testing-In general, those life style 
accommodations which candidates use to compensate for their disabilities, and 
which become accepted practice for the individual in his/her nursing education 
program.] 
   
  <nl>   Auxiliary aids and services-Include, but are not limited to, 
technological devices, qualified interpreters or readers, materials in alternate 
formats, and acquisition or modification of equipment or devices. 
   
  <nl>   Candidate with a disability-An individual with a disability who has 
successfully completed an accredited nursing program who may or may not require 
modifications in the NCLEX administration. 
   
   [Handicapped candidate -An individual who has successfully completed an 
accredited nursing program and requires modifications in the NCLEX-RN procedures 
because of a physical or sensory impairment and/or a specific learning 
disability.] 
   
  <nl>   Individual with a disability-An individual with a physical or mental 
impairment that substantially limits one or more of the major life activities; 
has a record of such an impairment; or is regarded as having such an impairment. 
   
  <nl>   Reasonable accomodations -Reasonable modifications in policies, 
practices, or procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the board can demonstrate that 
making the modifications would fundamentally alter the measurement of the skills 
or knowledge that the examination is intended to test; or would result in undue 
burden and there is an equally effective alternative. 
   
  <nl>   Testing accommodation -Reasonable modifications in administration of 
NCLEX which are necessary to provide accessibility to a qualified candidate with 
a disability. 
 
   
  sec.217.3. Candidate with a Disability. 
 
  (a) A candidate with a disability shall be provided reasonable accommodations 
for testing in order that competency in professional nursing may be 
demonstrated. 
   
  (b) A written request for reasonable accommodations for testing shall be 
submitted to the board by the NCLEX deadline. 
   
  (c) The request shall include documentation of the need for accommodations. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9321032 
  Louise Waddill, Ph.D., R.N. 
 Executive Director 
 Texas Board of Nurse Examiners 
    Proposed date of adoption: May 25, 1993 
 For further information, please call: (512) 835-8650 
         
           
  22 TAC sec.217.3 
 
  (Editor's note: The text of the following section proposed for repeal will not 
be published. The section may be examined in the offices of the Board of Nurse 
Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 
1019 Brazos Street, Austin.) 
   
  The Board of Nurse Examiners proposes the repeal of sec.217.3, concerning 
Handicapped Candidate. Rewrite of the section is necessary to comply with the 
Americans with Disabilities Act (ADA); therefore, the section is being repealed 
and a new section is simultaneously being proposed. 
 Louise Waddill, Ph.D., R.N. executive director, has determined that for the 
first five-year period the repeal is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the repeal. 
 Ms. Waddill also has determined that for each year of the first five years the 
repeal is in effect the public benefit anticipated as a result of enforcing the 
repeal will be clarification by commission. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the repeal as proposed. 
 Comments on the proposal may be submitted to Louise Waddill, R.N., Ph.D., 
Executive Director, Board of Nurse Examiners, Box 140466, Austin, Texas 78714. 
 The repeal is proposed under Texas Civil Statutes, Article 4514, sec.1, which 
provide the Board of Nurse Examiners with the authority to make and enforce all 
rules and regulations necessary for the performance of its duties and conducting 
of proceedings before it. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 30, 1993. 
 TRD-9321031 
  Louise Waddill, Ph.D., R.N. 
 Executive Director 
 Texas Board of Nurse Examiners 
    Proposed date of adoption: May 25, 1993 
 For further information, please call: (512) 835-8650 
         
             
  TITLE 37. PUBLIC SAFETY AND CORRECTIONS 
 Part I. Texas Department of Public Safety 
  Chapter 1. Organization and Administration 
  
  Personnel and Employment Policies 
 
  37 TAC sec.1.32 
 
  The Texas Department of Public Safety proposes an amendment to sec.1.32, 
concerning basic requirements for employment as trooper. Language is deleted in 
subsection (a)(1) which removes the maximum hiring age for employment as a 
trooper. This amendment will ensure department compliance with the Federal Age 
Discrimination in Employment Act. 
 Melvin C. Peeples, assistant chief of fiscal affairs, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 Mary Ann Courter, commander, Personnel Bureau, has determined that for each 
year of the first five years the section is in effect the public benefit 
anticipated as a result of enforcing the section will be to ensure the public 
that the department complies with the Federal Age Discrimination in Employment 
Act in employment practices with regard to the hiring of troopers. There will be 
no effect on small businesses. There is no anticipated economic cost to persons 
who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to John C. West, Jr., Texas 
Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000. 
 The amendment is proposed under the Texas Government Code, sec.411.006(4) and 
sec.411.004(3), which provides the director of the Texas Department of Public 
Safety with the authority to adopt rules necessary for the control of the 
department, subject to the Public Safety Commission's approval. 
 
 
  sec.1.32. Basic Requirements for Employment as Trooper. 
 
  (a)  Application requirements. 
 
  (1) Applicants must be at least 20 years of age [and less than 36 years of 
age] on the date of probationary appointment to the position of trooper-trainee. 
   
  (2)-(11) (No change.) 
     
  (b) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 12, 1993. 
 TRD-9320953 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Proposed date of adoption: May 7, 1993 
 For further information, please call: (512) 465-2000 
         
               Chapter 23. Vehicle Inspection 
  
  Vehicle Inspection Station Licensing 
 
  37 TAC sec.sec.23.1, 23.8, 23.15, 23.16 
 
  The Texas Department of Public Safety proposes amendments to sec.sec.23.1, 23. 
8, 23.15, and new sec.23.16, concerning vehicle inspection station licensing. 
The amendment to sec.23.1 adds subsections (e) and (f) regarding withdrawal of 
application and frequency of application for a station license. Subsection (d) 
is added to sec.23.8 requiring station owners to report an inspector's change in 
employment within three working days. Language is added and deleted in 
sec.23.15, subsection (a)(13) regarding denial of a station or inspector license 
for conviction of a crime which directly relates to the duties and 
responsibilities of a vehicle inspection station or inspector. Section 23.16 is 
added as a new section which promulgates the procedures and factors to be used 
in determining eligibility of persons with a criminal background to operate a 
vehicle inspection station and inspect vehicles. 
 Melvin C. Peeples, assistant chief of fiscal affairs, has determined that for 
the first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 George C. King, chief of traffic law enforcement, also has determined that for 
each year of the first five years the sections are in effect the public benefit 
anticipated as a result of enforcing the sections will be a more efficient 
administration of the Motor Vehicle Inspection Program regarding frequency of 
station application, reporting, and eligibility of an inspector or a station. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the sections as proposed. 
 Comments on the proposal may be submitted to John C. West, Jr., Texas 
Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000. 
 The amendments and new section are proposed under Texas Civil Statutes, Article 
6701d, Article XV, sec.sec.140-142, which provide the Texas Department of Public 
Safety with the authority to adopt rules necessary for the administration of 
this Act. 
 
 
  sec.23.1. New Applications. 
 
  (a)-(d) (No change.) 
   
  <nl>(e) Withdrawal of application. An application for a license as a vehicle 
inspection station may be withdrawn by the applicant at any time. No person may 
apply for a license as a vehicle inspection station within one year from the 
date of the withdrawal of the application by the applicant. 
   
  <nl>(f) Frequency of application. Except as provided in sec.23.13 of this 
title (relating to Reissue of Inspection Station License After Suspension) , no 
person may apply for a license as a vehicle inspection station within one year 
from the date of denial by the director of an application from the same person. 
 
     
  sec.23.8. Manpower. 
 
  (a)-(c) (No change.) 
   
  <nl>(d) Inspection station owners shall furnish information as may be required 
by the department pertaining to inspectors employed at that station on Form VI-
3a within three working days of a change in the inspector's employment. 
 
     
  sec.23.15. Inspection Station and Certified Inspector Denial, Revocation, 
Suspensions, and Administrative Hearings. 
 
  (a) The department may deny an application for a license or revoke or suspend 
an outstanding certificate of any inspection station for the certificate or any 
person to inspect vehicles for any of the following reasons: 
 
  (1)-(12)  (No change.) 
   
  (13) <nl>a conviction under the laws of this state, another state, or the 
United States of any crime which directly relates to the duties and 
responsibilities of a vehicle inspection station or inspector, as set out in 
sec.23.16 of this title (relating to Persons with a Criminal Background).<ol> [a 
conviction under the laws of this state, another state, or the United States, of 
any felony, or an offense involving moral turpitude, or an offense involving 
tampering with a governmental record, or an offense under the Motor Vehicle 
Certificate of Title Act (Texas Civil Statutes, Article 6687-1), or an offense 
committed as a result of the person's criminally negligent operation of a motor 
vehicle, or an offense involving driving while intoxicated or driving under the 
influence of drugs. 
 
  [(A) These particular crimes relate to the licensing of inspectors and 
inspection stations because the licensees, as representatives of the Texas 
Department of Public Safety, are required to be of good reputation, character, 
moral conduct, and to deal honestly with members of the public. The inspection 
of vehicles requires the operation or control of citizens' vehicles, the 
verification of odometer readings, and accurate record keeping of inspection 
procedures. 
   
  [(B)  The license of an inspection station will be subject to denial, 
revocation, or suspension in the event the owner is convicted of such an 
offense. In the event that an inspector or inspector applicant is convicted of 
such an offense, that person's license will be subject to revocation or 
suspension, or his application will be subject to denial. 
   
  [(C) A conviction for an offense other than a felony will not be considered by 
the Department, under this paragraph, if a period of more than five years has 
elapsed since the date of the conviction or of the release of the person from 
the confinement or supervision imposed for that conviction, whichever is the 
later date. For the purposes of this section, a person is convicted of an 
offense when an adjudication of guilt on an offense is entered against the 
person by a court of competent jurisdiction, whether or not: 
 
  [(i) the sentence is subsequently probated and the person is discharged from 
probation; 
   
  [(ii)  the accusation, complaint, information, or indictment against the 
person is dismissed and the person is released from all penalties and 
disabilities resulting from the offense; or the person is pardoned for the 
offense, unless the pardon is expressly granted for subsequent proof of 
innocence. 
     
  [(D) In determining the present fitness of a person who has been convicted of 
a crime and in determining whether a criminal conviction directly relates to an 
occupation, the Department shall consider those factors stated in Texas Civil 
Statutes, Article 6252-13c and d.] 
       
  (b)-(m) (No change.) 
 
     
  sec.23.16. Persons with a Criminal Background. 
 
  (a) In accordance with Texas Civil Statutes, Article 6252-13c and sec.23.15 of 
this title (relating to Inspection Station and Certified Inspector Denial, 
Revocation, Suspensions, and Administrative Hearings), the department may deny 
an application for a license or revoke or suspend an outstanding certificate of 
any inspection station or the certificate to inspect vehicles of any person who 
has been convicted of a crime which directly relates to the duties and 
responsibilities of a vehicle inspection station or inspector unless the 
department determines that the licensee or applicant is presently fit to perform 
such duties and responsibilities. 
   
  (b) In determining whether a criminal conviction directly relates to the 
performance of or whether the licensee or applicant is presently fit to perform 
the duties and responsibilities of a vehicle inspection station or inspector, 
the department will consider the factors listed in Texas Civil Statutes, Article 
6252-13c(4) (b) and (c)(1)-(6). 
   
  (c) The department considers a crime directly related to the duties and 
responsibilities of a vehicle inspection station or inspector: 
 
  (1) when the crime violates the Uniform Act Regulating Traffic on Highways, 
Texas Civil Statutes, Article 6701d, Article XV; 
   
  (2)  when the crime violates the Motor Vehicle Certificate of Title Act, Texas 
Civil Statutes, Article 6687-1; 
   
  (3) when the crime involves the criminally negligent operation of a motor 
vehicle or driving a motor vehicle while intoxicated or under the influence of 
drugs; 
   
  (4) when the crime involves driving a motor vehicle without the effective 
consent of the owner; 
   
  (5) when the crime involves any aspect of the business of inspecting vehicles; 
   
  (6) when the crime occurs wholly or in part on the property of an official 
vehicle inspection station; 
   
  (7) when the crime involves a motor vehicle which has been presented to the 
inspection station or inspector for inspection; 
   
  (8) when the crime involves any attempt by fraudulent or unauthorized means to 
obtain or alter or tamper with a governmental record; 
   
  (9) when the crime involves property of the government; 
   
  (10) when the crime involves a benefit or offer of a gift to a public servant 
as consideration for a violation of a duty imposed by law on the public servant; 
   
  (11) when the crime involves moral turpitude; 
   
  (12) when the criminal conduct involves violence; or 
   
  (13)  when court costs, supervision fees, fines, and restitution as may have 
been ordered in the criminal cases in which he has been convicted remain 
outstanding. 
     
  (d) The license of an inspection station will be subject to denial, 
revocation, or suspension in the event the owner or operator is convicted of 
such an offense. In the event that an inspector or inspector applicant is 
convicted of such an offense, that person's license will be subject to 
revocation or suspension, or his application will be subject to denial. 
   
  (e) A conviction for a felony offense will not be considered by the 
department, under this subsection, if a period of more than 10 years has elapsed 
since the date of the conviction or the release of the person from confinement 
or supervision imposed for that conviction, whichever is the later date. An 
offense other than an felony will not be considered by the department, under 
this subsection, if a period of more than five years has elapsed since the date 
of the conviction or supervision imposed for that conviction, whichever is the 
later date. For the purposes of this section, a person is convicted of an 
offense when an adjudication of guilt on an offense is entered against the 
person by a court of competent jurisdiction, whether or not: 
 
  (1) the sentence is subsequently probated and the person is discharged from 
probation; 
   
  (2) the accusation, complaint, information, or indictment against the person 
is dismissed and the person is released from all penalties and disabilities 
resulting from the offense; or the person is pardoned for the offense, unless 
the pardon is expressly granted for subsequent proof of innocence. 
     
  (f) A dismissal and discharge in a deferred adjudication proceeding shall not 
be considered a conviction for the purposes of this section. 
   
  (g) Upon a licensee's felony conviction, felony probation revocation, 
revocation of parole, or revocation of mandatory supervision, his license shall 
be revoked. 
   
  (h) It shall be the responsibility of the licensee and applicant to furnish 
proof in such form as may be required by the department of his employment 
history, that he has supported his dependents, and that he has otherwise 
maintained a record of good conduct. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1993. 
 TRD-9320950 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 465-2000 
         
             
  Certification of Inspectors 
 
  37 TAC sec.23.61 
 
  The Texas Department of Public Safety proposes an amendment to sec.23.61, 
concerning procedures for certification. The amendment to subsection (b) revises 
the minimum age to qualify as an inspector from 17 to 18 years and adds language 
requiring proof of present fitness as may be required. Subsection (j) is added 
regarding certification after denial and renumbering the remaining subsections. 
Subsection (k) adds and deletes language regarding reinstatement after 
expiration of suspension. Subsection (m) adds language requiring station owners 
to furnish information to the department within three working days of a change 
in the inspector's employment. Subsection (n) adds language requiring an 
inspector to demonstrate to a department representative correct operation of 
testing equipment at an idle emission inspection and maintenance station upon 
change of employment and before an inspection can be performed. Subsection (p) 
is added regarding the time period and conditions for withdrawal of application 
for a license as a certified inspector. Subsection (o) is added regarding 
frequency of application from date of withdrawal. 
 Melvin C. Peeples, assistant chief of fiscal affairs, has determined that for 
the first five-year period the section is in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the section. 
 George C. King, chief of traffic law enforcement, has determined that for each 
year of the first five years the section is in effect the public benefit 
anticipated as a result of enforcing the section will be that this section will 
be consistent with Federal Child Labor Standards regarding employment of minors 
and ensuring that inspectors are qualified for certification as an inspector. 
Administration of the Motor Vehicle Inspection Program will be more efficient. 
There will be no effect on small businesses. There is no anticipated economic 
cost to persons who are required to comply with the section as proposed. 
 Comments on the proposal may be submitted to John C. West, Jr., Texas 
Department of Public Safety, P.O. Box 4087, Austin, Texas 78773-0001, (512) 465-
2000. 
 The amendment is proposed under Texas Civil Statutes, Article 6701d, Article 
XV, sec.sec.140-142, which provide the Texas Department of Public Safety with 
the authority to adopt rules necessary for the administration of this Act. 
 
 
  sec.23.61. Procedures for Certification. 
 
  (a) (No change.) 
   
  (b) Qualifications for certification as a certified inspector. To qualify as 
an inspector an applicant shall: 
 
  (1) be at least <nl>18<ol> [17] years of age; 
   
  (2)-(9) (No change.) 
   
  (10) submit a statutory fee of $10 when the certification process by the 
trooper is completed and the person is ready for issuance of an inspector's 
certificate; [and] 
   
  (11) be exempt from the inspector certification fee if employed at a 
governmental inspection station. Dual authorization for another class of 
inspection station would require an inspector certification fee;[.] <nl>and 
   
  <nl>(12) provide proof of present fitness as maY be required by the 
department. 
     
  (c)-(i) (No change.) 
   
  <nl>(j) Certification after denial. Except as provided in subsection (k) of 
this section, no person may apply for a license as a certified inspector within 
one year from the date of the denial by the director of an application from the 
same person. 
   
  <nl>(k)<ol>[(j)] Certification after suspension. 
 
  (1)  <nl>After expiration of a period of suspension, a person desiring 
reinstatement may request reinstatement by notifying in writing the appropriate 
regional supervisor and:<ol> [If suspended, a certified inspector seeking 
recertification must:] 
 
  (A) make a written application for reinstatement; 
   
  (B) meet all qualifications for appointment; 
   
  (C)  pass the complete written and demonstration test; and 
   
  (D) submit the inspector's certification fee if certification has expired 
during suspension. 
     
  (2) If the certified inspector passes all tests, the inspector certificate 
card, VI-66, will be reissued. 
     
  <nl>(l)<ol>[(k)]  Reexamination; withdrawal of certification. The department 
representative may require the certified inspector to take all or part of the 
written and demonstration tests at any time or may require attendance at any 
training program. Failure to pass a required test disqualifies the certified 
inspector immediately. 
   
  <nl>(m)<ol>[(l)] Dual authorization. A certified inspector may be certified at 
more than one vehicle inspection station at the same time. [The department 
representative will evaluate each application and determine if circumstances 
permit approval.] <nl>Inspection station owners shall furnish information as may 
be required by the department pertaining to inspectors employed at that station 
on Form VI-13a within three working days of a change in the inspector's 
employment. 
   
  <nl>(n)<ol>[(m)] Changes in employment. 
 
  (1) If a certified inspector changes his place of employment, he shall prove 
his ability to correctly operate the testing equipment at such new vehicle 
inspection station, and may be required to take a complete written examination 
before he will be allowed to inspect at the new location. 
   
  (2) No inspections shall be performed by a certified inspector at <nl>an idle 
emission inspection and maintenance station <ol> [his new location] until <nl>he 
has demonstrated to the department representative supervising the station his 
ability to correctly operate the testing equipment at such station<ol> 
[recertified at the new place of employment by the department representative 
supervising the vehicle inspection station]. 
   
  (3) <nl>The inspection station owner shall notify the department 
representative supervising the station within three working days of a change in 
employment of inspectors at that station.<ol> [The certified inspector shall 
notify the department representative supervising the vehicle inspection station 
immediately of a change in employment.] 
     
  <nl>(o)<ol>[(n)] Certified inspector schools. Schools are conducted on a 
regionwide schedule according to need at any time during the year. 
   
  <nl>(p) Withdrawal of application. An application for a license as a certified 
inspector may be withdrawn by the applicant at any time. An application will be 
deemed withdrawn when 60 days elapses: 
 
  <nl>(1)  from the first failure of the inspector's written examination: 
   
  <nl>(2) after the department requests proof of present fitness from the 
applicant; or 
   
  <nl>(3) from the successful completion of the written idle emissions 
examination when the applicant has not requested that a demonstration test on 
the testing equipment be given. 
     
  <nl>(q)  Frequency of application. No person may apply for a license as a 
certified inspector within one year from the date of the withdrawal of an 
application by the same person. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1993. 
 TRD-9320949 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 465-2000 
         
             
  Parameter Vehicle Emission Inspection and Maintenance Program 
 
  37 TAC sec.23.91, sec.23.92 
 
  The Texas Department of Public Safety proposes amendments to sec.23.91 and 
sec.23.92, concerning the parameter vehicle emission inspection and maintenance 
program and the vehicle idle emissions inspection and maintenance program. The 
amendment to sec.23.91 adds and deletes language. Language is clarified for 
parameter vehicle emission inspections on all vehicles presented for inspection 
in any designated county. Language is deleted stating certified inspectors in 
any other county of the state may receive the training and certification to 
conduct the parameter vehicle emission inspection and maintenance inspections 
for vehicles required to be so inspected. Language regarding the rear license 
plate validation sticker is deleted and language added to read as registration 
sticker. 
 The amendment to sec.23.92 deletes language regarding a two-year vehicle 
inspection certificate. Language regarding the rear license plate validation 
sticker is deleted and language added to read as registration sticker. 
 Both sections are amended by adding language requiring that certified 
inspectors successfully complete required training, testing, and certification 
to conduct the parameter vehicle emission and the vehicle idle emission 
inspection. 
 Melvin C. Peeples, assistant chief of fiscal affairs, has determined that for 
the first five-year period the sections are in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the sections. 
 George C. King, chief of traffic law enforcement, has determined that for each 
year of the first five years the sections are in effect the public benefit 
anticipated as a result of enforcing the sections will be to ensure the public 
that inspectors conducting parameter vehicle emission and vehicle idle emissions 
inspections are properly trained and certified to operate required equipment and 
perform such inspections as required. There will be no effect on small 
businesses. There is no anticipated economic cost to persons who are required to 
comply with the sections as proposed. 
 Comments on the proposal may be submitted to John C. West, Jr., Texas 
Department of Public Safety, Box 4087, Austin, Texas 78773-0001, (512) 465-2000. 
 The amendments are proposed under Texas Civil Statutes, Article 6701d, 
sec.142(c)(1) and sec.142(d), which provide the Public Safety Commission with 
the authority to establish a Parameter Vehicle Emission Inspection and 
Maintenance Program for vehicles registered in any county in this state which 
does not meet national ambient air quality standards and for which the Texas 
Natural Resource Conservation Commission has adopted a resolution requesting the 
Department of Public Safety to institute such a program. See also Attorney 
General Opinion JM-138, dated March 16, 1984. 
 
 
  sec.23.91. Parameter Vehicle Emission Inspection and Maintenance Program. 
 
  (a) All 1968 and <nl>newer<ol> [later] year model passenger cars and light-
duty trucks [currently] registered [and operated] in <nl>any<ol> designated 
<nl>county<ol> [counties] <nl>or presented for inspection in any designated 
county <ol> must be inspected, as part of, and at the time of, the required 
annual vehicle inspection, under the Parameter Vehicle Emission Inspection and 
Maintenance Program and the rules of the department applicable to the particular 
year model. Provided, that a passenger car or light-duty truck that is sold in 
this state has not been previously registered in this or another state, and on 
the date of sale is of the current or the immediately preceding model year is 
not subject to an initial parameter vehicle emission inspection. 
   
  (b) Certified inspectors in designated counties must perform the parameter 
vehicle emission inspection and maintenance inspection on all 1968 and later 
model year passenger cars and light-duty trucks presented for inspection [which 
are currently registered in designated counties]. For the purpose of the 
Parameter Vehicle Emission Inspection and Maintenance Program described in this 
section, the term "designated counties" shall mean the counties of Collin, 
Dallas, Denton, Ellis, El Paso, Harris, Johnson, Kaufman, Parker, Rockwall, and 
Tarrant. 
   
  (c)  (No change.) 
   
  (d) In order to determine whether a vehicle is currently registered in a 
designated county, <nl>registration <ol> [the rear license plate validation 
sticker] will be verified. Vehicles registered in designated counties will be 
identified by a distinguishing validation sticker as determined by the Texas 
Department of [Highways and Public] Transportation. Certified inspectors in the 
counties named in subsection (b) of this section and certified inspectors in 
counties adjoining designated counties will verify the rear license plate 
validation stickers of each 1968 or later model year passenger car or light-duty 
truck presented for inspection. 
   
  (e)-(g)  (No change.) 
   
  (h) All certified inspectors in designated counties must <nl>successfully<ol> 
complete the training <nl>and testing <ol> for the Parameter Vehicle Emission 
Inspection and Maintenance Program and receive certification from the Texas 
Department of Public Safety for such training. [Certified inspectors in any 
other county of the state may receive the training and certification to conduct 
the parameter vehicle emission inspection and maintenance inspections for 
vehicles required to be so inspected.] 
   
  (i) Only those certified inspectors who have <nl>successfully <ol> completed 
the training <nl>and testing<ol> for the Parameter Vehicle Emission Inspection 
and Maintenance Program and who have received certification for such training 
<nl>and testing<ol> may perform the parameter vehicle emission inspection and 
maintenance inspections. 
   
  (j)  Certified inspectors in any <nl>designated <ol> county in the state who 
have been certified to perform the parameter vehicle emission inspection and 
maintenance inspections shall accurately complete forms provided by the 
department, including a notation of whether or not the inspected vehicle has had 
the emission inspection performed in a designated county. The form will also 
contain a space to note whether the inspected vehicle was bearing a previously 
issued inspection certificate with a colored numeral insert. 
   
  (k) (No change.) 
   
  (l) For purposes of the Parameter Vehicle Emission Inspection and Maintenance 
Program, the term "light-duty truck" means a motor vehicle with a 
<nl>manufacturer's<ol> gross weight of 8,500 pounds or less, which shall 
include, but not be limited to, pickup trucks, panel delivery trucks, and carry-
all trucks, except that motor vehicles powered by diesel fuel or any fuel other 
than gasoline or gasohol are not included in the meaning of the term "light-duty 
truck" if their design precludes the use of gasoline or gasohol without 
modification. 
   
  (m) Specific inspection requirements for passenger cars and light-duty trucks 
in the Parameter Vehicle Emission Inspection and Maintenance Program are as 
follows. 
 
  (1) (No change.) 
   
  (2) 1980-1983 year models. 
 
  [(A) Inspection parameters, in addition to items in paragraph (1)(A) of this 
subsection, are choke system, heater, and rod. In addition, vehicles originally 
equipped with a catalytic converter at the time of manufacture shall be 
inspected by performing the lead detection test, by checking for the presence of 
the catalytic converter, and by checking for the presence and proper size 
opening of the fuel inlet restrictor. 
   
  [(B) The certified inspector shall mark the back of the inspection certificate 
which is presently on a vehicle with a large "X," using a laundry marking pen, 
if a vehicle has failed the inspection because of an altered or removed fuel 
inlet restrictor, removed catalytic converter, or lead in the tailpipe, and the 
vehicle also failed any other item of inspection that would cause rejection of 
the vehicle.] 
     
  (3) 1984 and later year models. 
 
  (A) Inspection parameters, in addition to items in paragraphs (1)(A) and 
(2)[(A)] of this subsection, are misfire, oxygen sensor, emission-related 
recall, and emission-related maintenance. In addition, vehicles originally 
equipped with a catalytic converter at the time of manufacture shall be 
inspected by performing the lead detection test, by checking for the presence of 
the catalytic converter, and by checking for the presence and proper size 
opening of the fuel inlet restrictor. 
   
  (B) (No change.) 
   
  (C) The certified inspector shall mark the back of the inspection certificate 
which is presently affixed to the vehicle's windshield with a large "X," using a 
laundry marking pen, if the vehicle failed the inspection [because of a removed 
or altered fuel inlet restrictor, removed catalytic converter, or lead in the 
tailpipe, and the vehicle also failed any other item of inspection that would 
cause rejection of the vehicle]. 
       
  (n)-(s) (No change.) 
 
     
  sec.23.92. Vehicle Idle Emissions Inspection and Maintenance Program. 
 
  (a) All 1975 and newer year model passenger cars and light-duty trucks 
registered in any designated county or presented for inspection in any 
designated county must be inspected, as part of, and at the time of, the 
required annual vehicle inspection and parameter vehicle inspection under the 
Vehicle Idle Emissions Inspection and Maintenance Program and the rules of the 
department applicable to the particular year model. [Provided, that a passenger 
car or light-duty truck that is sold in this state, has not been previously 
registered in this or another state, and on the date of sale is of the current 
or the immediately preceding year model, is subject to an initial inspection 
expiring at the end of two years.] 
   
  (b)-(c) (No change.) 
   
  (d) In order to determine whether a vehicle is currently registered in a 
designated county, certified inspectors in designated counties and in adjoining 
counties shall verify the <nl>registration <ol> [rear license plate validation 
sticker]. Vehicles registered in designated counties will be identified by a 
distinguishing validation sticker as determined by the Texas Department of 
[Highways and Public] Transportation. 
   
  (e)-(g) (No change.) 
   
  (h) All certified inspectors in designated counties must <nl>successfully<ol> 
complete the training <nl>and testing <ol> for the Vehicle Idle Emissions 
Inspection and Maintenance Program and be trained <nl>, tested,<ol> and 
certified on the analyzer's operation by the analyzer manufacturer and receive 
certification from the Texas Department of Public Safety for such training. 
Certified inspectors in any other designated county of the state may <nl>be 
trained, tested, and certified<ol> [receive the training and certification] to 
conduct the vehicle idle emissions inspection and maintenance inspections for 
vehicles required to be so inspected. 
   
  (i)  Only those certified inspectors who have <nl>successfully <ol> completed 
the training <nl>and testing<ol> for the Vehicle Idle Emissions Inspection and 
Maintenance Program and who have received certification for such training 
<nl>and testing<ol> may perform the vehicle idle emissions inspection and 
maintenance inspections. 
   
  (j) (No change.) 
   
  (k) For purposes of the Vehicle Idle Emissions Inspection and Maintenance 
Program, light-duty truck means a motor vehicle with a <nl>manufacturer's<ol> 
gross weight of 8, 500 pounds or less, which shall include, but not be limited 
to, pickup trucks, panel delivery trucks, and carry-all trucks, except that 
motor vehicles powered by diesel fuel or any fuel other than gasoline or gasohol 
are not included in the meaning of [the term] light-duty truck if their design 
precludes the use of gasoline or gasohol without modification. 
   
  (1)  (No change.) 
   
  (m) The vehicle idle emissions inspection and maintenance fee is established, 
for the purposes of this section, as $6.00 which is in addition to the statutory 
inspection fee. The additional fee shall be charged upon completion of the 
vehicle idle emissions inspection and maintenance inspection, whether or not the 
vehicle passed the inspection. [For vehicles subject to an initial inspection 
that expires at the end of two years, as provided in subsection (a) of this 
section, the vehicle idle emissions inspection and maintenance inspection will 
not be conducted and no fee shall be charged.] 
   
  (n)-(q) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 17, 1993. 
 TRD-9320948 
  James R. Wilson 
 Director 
 Texas Department of Public Safety 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 465-2000 
         
                 Part III. Texas Youth Commission 
  Chapter 89. Youth Rights and Remedies 
  
  37 TAC sec.89.15 
 
  The Texas Youth Commission (TYC) proposes an amendment to sec.89.15, 
concerning rules for reporting and investigating alleged mistreatment of youth 
committed to TYC. The amendment replaces the term "negligent supervision" with 
"inadequate supervision" in a list of improper child care practices. 
 John Franks, Director of Fiscal Affairs, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be a more efficient procedure for maintaining adequate supervision 
of youth committed to TYC. There will be no effect on small businesses. There is 
no anticipated economic cost to persons who are required to comply with the 
section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The amendment is proposed under the Human Resources Code, sec.61.034, which 
provides the Texas Youth Commission with the authority to make rules appropriate 
to the proper accomplishment of its functions. 
 
 
  sec.89.15. Alleged Mistreatment Rules and Definitions. 
 
  (a) Policy. The Texas Youth Commission (TYC) is committed to the protection of 
TYC youth through the reporting and investigation of alleged abuse, neglect and 
improper child care practices by TYC and contract program employees and to 
prescribe principles and methods for its prevention. All allegations of 
mistreatment (abuse, neglect, and improper child care practices) are 
investigated. TYC provides separate procedures for the reporting and 
investigation of allegations of mistreatment in TYC facilities, youth home and 
contract programs. For additional specific procedures for reporting, 
investigating and taking action when striking a youth is alleged, see General 
Operating Policy (GOP) 61.19, sec.89.19 of this title (relating to Alleged 
Mistreatment Procedure for Striking Incidents). See GOP.61.17, sec.89.17 of this 
title (relating to Alleged Mistreatment Procedure for TYC Operated Facilities); 
GOP.61.21, sec.89.21 of this title (relating to Alleged Mistreatment Procedure 
for Residential Contract Programs); and GOP.61.23, sec.89.23 of this title 
(relating to Alleged Mistreatment Procedure for Youth at Home). 
   
  (b) Rules. 
 
  (1)-(4) (No change.) 
   
  (5) Definition and Examples of Improper Child Care Practices. Improper child 
care practice. The following are examples of acts of improper child care 
practices: 
 
  (A)-(B) (No change.) 
   
  (C) engages in <nl>inadequate<ol> [negligent] supervision, i.e., failing to 
provide the quality of supervision that a reasonable and careful trained child 
care worker would have provided under similar circumstances, which results in: 
 
  (i)-(v) (No change.) 
     
  (D) (No change.) 
   
  (E) uses force or restraints which violates GOP.67.09, sec.91.59 of this title 
(relating to Use of Force); 
   
  (F)-(K) (No change.) 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 26, 1993. 
 TRD-9320922 
  Ron Jackson 
 Executive Director 
 Texas Youth Commission 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 483-5244 
         
                 Chapter 91. Discipline and Control 
  
  Control 
 
  37 TAC sec.91.56 
 
  The Texas Youth Commission (TYC) proposes new sec.91.56, concerning a custody 
and supervision rating (CSR) system. The new rule will be used to assess the 
level of custody and supervision required to protect the youth and others. 
 John Franks, Director of Fiscal Affairs, has determined that for the first 
five-year period the section is in effect there will be no fiscal implications 
for state or local government as a result of enforcing or administering the 
section. 
 Mr. Franks also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be increased safety in TYC facilities. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the section as proposed. 
 Comments on the proposal may be submitted to Gail Graham, Policy and Manuals 
Coordinator, Texas Youth Commission, 4900 North Lamar Boulevard, P.O. Box 4260, 
Austin, Texas 78765. 
 The new section is proposed under the Human Resources Code, sec.61.034, which 
provides the Texas Youth Commission with the authority to make rules appropriate 
to the proper accomplishment of its functions. 
 
 
  sec.91.56. Custody and Supervision Rating. 
 
  (a) Policy. A custody and supervision rating (CSR) system is used to assess 
the level of custody and supervision required to protect the youth and others. 
The risk rating affects a youth's movement and activities on and off campus at 
TYC operated maximum and high restriction facilities. Higher risk ratings 
require increased staff supervision, restriction of youth movement, and 
restriction of access to unauthorized program areas and potentially harmful 
materials. Staff supervision refers to supervision provided by a TYC employee or 
an adult serving in a capacity related to a TYC activity (e.g., an employer of 
TYC youth or a volunteer for a TYC sponsored activity). 
   
  (b) Rules. 
 
  (1) Restrictions. 
 
  (A) All staff are responsible for being aware of high risk youth and for 
constant supervision of those youth. 
   
  (B)  Each facility administration shall develop and maintain a system whereby 
the rules and privileges of the program level system are made compatible with 
the CSR system. 
   
  (C) A youth with a high risk rating is ineligible to leave the grounds except 
for necessary medical services or emergencies. Constant supervision by staff is 
required. 
   
  (D) A youth with a medium risk rating is eligible to leave the grounds for 
routine activities that are not overnight under specific conditions recommended 
by the treatment team. Supervision by staff is required. 
   
  (E)  A youth with a low risk rating is eligible to leave the grounds with or 
without direct staff supervision under specific conditions recommended by the 
treatment team. Activities may include overnight outings. 
     
  (2)  Assessment. Risk level is based on a combination of past history, current 
behavior, and length of time in residential placement since commitment. 
 
  (A) Past history includes referrals and adjudications for felony offenses, and 
escapes/attempts prior to the current placement. Escapes/attempts from high 
restriction facilities are weighted more heavily than those from medium or 
minimum restriction facilities. 
   
  (B) Current behavior emphasizes major rule violations and admissions to 
security. Arson/attempts, suicide alert, and self-injury are special risk 
considerations. Only recent major incidents are included in the assessment. 
   
  (C) A youth who has completed less than half of the minimum length of stay 
will always receive a CSR risk rating of either medium or high, depending on the 
total score. Youth who have completed at least half of the minimum length of 
stay can receive a CSR risk rating of low, medium, or high, depending on the 
total score. 
   
  (D) It is possible that a youth will have an offense and escape history that 
is so extensive that he or she will always receive a high CSR risk rating, 
independent of current behavior. 
     
  (3) Waiver. 
 
  (A) The contribution of selected variables to the risk score can be reduced 
where a clinical review certifies that the youth poses a low risk to escape and 
low risk to harm self or others, and the superintendent/facility administrator 
approves. 
   
  (B) When the number of current major rule violations reaches a low level, the 
superintendent/facility administrator has the authority to waive the high risk 
restriction to a medium risk restriction. 
   
  (C) The superintendent/facility administrator may grant a waiver of the CSR 
risk restriction to allow a pre-placement visit if necessary. Such a waiver may 
be granted only within 30 days prior to the planned placement. 
   
  (D) A waiver of the CSR risk restriction may be requested from the deputy 
executive director when the superintendent/facility administrator believes that 
circumstances related to the youth's family or youth's behavior warrant special 
consideration. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 26, 1993. 
 TRD-9320921 
  Ron Jackson 
 Executive Director 
 Texas Youth Commission 
    Proposed date of adoption: May 7, 1993 
 For further information, please call: (512) 483-5244 
         
                       
  TITLE 40. SOCIAL SERVICES AND ASSISTANCE 
 Part I. Texas Department of Human Services 
  Chapter 29. Purchased Health Services 
  
  Subchapter D. Medicaid Home Health Program 
 
  40 TAC sec.sec.29.302, 29.304, 29.308, 29.309, 29.311 
 
  The Texas Department of Human Services (DHS) proposes amendments to 
sec.sec.29.302, 29.304, 29.308, 29.309, and 29.311, concerning authorized home 
health services, limitations on home health services, written plan of care, 
time-limited authorizations, and additional claim information requirements, in 
its Purchased Health Services chapter. The purpose of the amendments is to 
modify certain administrative and procedural requirements to make authorization 
of services and claims filing easier. 
 The amendment to sec.29.302 modifies the prior-approval requirements to specify 
that the recipient must be essentially homebound and that the service must be 
reasonable and medically necessary. 
 The amendment to sec.29.304 specifies that home health aides may be supervised 
by a licensed physical therapist. Also, in sec.29.304(5) and (6) "current 
treatment plan" is replaced with "current physician's plan of care." 
 The amendments to sec.sec.29.308, 29.309, and 29.311 change certain 
administrative and procedural requirements concerning documentation and time 
frames to make prior authorization and claim filing easier. Also, in sec.29. 
309(a) "treatment" is replaced with "the need for home health services," and in  
s29.309(c)(d)(C) "any nursing" has been deleted from "observations." 
 The changes in terminology in sec.29.304 and sec.29.309 are intended to allow 
for reasonable and medically necessary home health services, prescribed by a 
physician's plan of care, to be available to essentially homebound recipients 
regardless of the need for skilled services. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposed amendments will be in effect there will be fiscal 
implications as a result of enforcing or administering the amendments. The 
effect on state government for the first five-year period the amendments will be 
in effect is an estimated additional cost of $318,553 for fiscal year 1993; 
$1,219,849 for fiscal year 1994; $1,813,730 for fiscal year 1995; $2,599, 299 
for fiscal year 1996; and $3,726,770 for fiscal year 1997. There will be no 
fiscal implications for local government as a result of enforcing or 
administering the amendments. 
 Mr. Raiford also has determined that for each year of the first five years the 
amendments are in effect the public benefit anticipated as a result of enforcing 
the amendments will be that Medicaid recipients who are essentially homebound 
will be eligible to receive home health program benefits, including supplies and 
equipment, without continued skilled nurse services. There will be no effect on 
small businesses. There is no anticipated economic cost to persons who are 
required to comply with the proposed amendments. 
 Questions about the content of the proposal may be directed to Kay Sterling at 
(512) 339-6511 in DHS's Purchased Health Services Section. Comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document 
Support-067, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
 The amendments are proposed under the Human Resources Code, Title 2, Chapters 
22 and 32, which provide the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provides the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
 
  sec.29.302. Authorized Home Health Services. Subject to certain conditions, 
limitations, and exclusions, the <nl>Texas Department of Human Services (DHS) 
<ol>[department] will pay for home health services provided to an eligible 
Medicaid recipient <nl>who is considered essentially homebound <ol>if the 
services are: 
 
  (1) recommended in writing by the recipient's attending physician and 
described in the physician's written plan of care; [and] 
   
  (2) prior authorized <nl>as specified <ol>by <nl>DHS  <ol>[the department] or 
its designee<nl>; and <ol>[.] 
   
  <nl>(3)  considered by DHS or its designee to be reasonable and medically 
necessary for the patient's care. 
 
     
  sec.29.304. Limitations on Home Health Services.  Home health services are 
limited to the following: 
 
  (1) (No change.) 
   
  (2)  Personal care services of a home health aide who is under the supervision 
of a professional registered nurse  <nl>or licensed physical therapist 
<ol>assigned by the home health agency. The primary objective of a home health 
aide visit and the majority of time spent in the home must be for the purpose of 
providing personal care services. Visits made primarily for the purpose of 
performing housekeeping services are not covered. Light housekeeping services 
are considered incidental and are not covered for payment if they substantially 
increase the amount of time the aide spends in the home. 
   
  (3)-(4) (No change.) 
   
  (5) The covered medical supplies listed below are those items considered most 
essential in the physician-prescribed treatment of an ill or injured patient in 
his own home. All of these items are primarily designed for therapeutic 
purposes. Items which are not listed may in selected instances be required for a 
particular patient. Consideration may be given to prior authorization of such 
items when the need can be medically documented on an individual case basis. 
Medical supplies are available only when provided in conjunction with a current 
<nl>physician's plan of care <ol>[treatment plan]. If the cost of an item 
exceeds the lowest charge level at which such item is consistently available in 
the locality, the provider will be requested to obtain a second bid from another 
supplier. Compensable items include: 
 
  (A)-(J) (No change.) 
     
  (6) Payment will be considered for purchase, rental, or repair of durable 
medical equipment prescribed by the physician and determined medically necessary 
in illness/injury or for treatment of a malformed body member, when provided in 
conjunction with a current <nl>physician's plan of care <ol>[treatment plan]. 
The health insuring agent reviews and approves the most appropriate plan and the 
most economical method (rental, purchase, or repair) of meeting the eligible 
recipient's needs on a planned basis. Periodic rental payment is made only for 
the period of time the equipment can be substantiated as medically necessary. 
Periodic rental payments will end when medical necessity for the equipment no 
longer exists or when the total monthly payments equal the reasonable purchase 
costs, whichever comes first. Equipment is purchased if it is determined that 
purchase is more practical or less costly than periodic payments. If the 
purchase, rental, or repair cost exceeds the lowest charge level at which such 
service is consistently available in the locality, the provider will be 
requested to obtain a second bid from another supplier. compensable medical 
appliances and equipment (rental, purchase, or repairs) include: 
 
  (A)-(F) (No change.) 
     
  (7)-(8) (No change.) 
 
     
  sec.29.308. Written Plan of Care. Home health care services are <nl>considered 
for reimbursement <ol>[available only] when provided upon recommendation of the 
attending physician in accordance with the physician's <nl>signed and dated 
<ol>[detailed] plan of care which includes [the following]: 
 
  (1)-(10) (No change.) 
 
     
  sec.29.309. Time Limited Authorizations. 
 
  (a) Prior authorizations for payment of home health benefits may be issued for 
a service period not to exceed 60 days on any given authorization. This does not 
mean that a specific authorization cannot be limited to a time period less than 
the established maximum. <nl>When the need for home health services exceeds 60 
days, or when there is a change in the service plan, the provider must submit 
the physician's signed and dated revised plan of care. <ol>[When treatment 
exceeds 60 days, the home health agency is required to submit updated clinical 
record data and the physician's progress report or revised plan of care. The 
physician's progress report must be signed and dated and must outline the need 
for continued care and services. When there is a change in the service plan, the 
provider must submit the physician's signed and dated revised plan of care. ] 
   
  (b) [Each home health care plan is evaluated on an individual case basis.] The 
provider is notified in writing of the authorization (or denial) of [payment 
for] requested services. 
   
  (c) <nl>Written <ol>[All] requests [submitted] for prior authorization of 
covered Medicaid home health benefits must include <nl>the information listed in 
paragraphs (1)-(3) of this subsection. <ol>[the following:] <nl>If inadequate or 
incomplete information is provided, the provider will be requested to furnish 
the following additional documentation as required to make a decision on the 
request: 
 
  (1) patient identification information (as it appears on the Medical Care 
<nl>Identification form <ol>[ID Card]); 
 
  (A)-(C) (No change.) 
     
  (2) physician's <nl>signed and dated <ol>plan of care; [The plan must be in 
writing and signed and dated by the attending physician.] 
   
  (3) clinical record data (completed by provider); 
 
  (A)-(B) (No change.) 
   
  (C) [any nursing] observations pertinent to the overall plan of care in the 
home; 
   
  (D) type of service the patient is receiving from other community or state 
agencies. [When the patient is receiving chore or homemaking services from the 
State Department of Public Welfare, indicate date of contact with agency social 
worker to coordinate in-home services.] 
     
  [(4) In instances where inadequate or incomplete information is submitted, the 
provider will be requested to furnish additional documentation as required to 
make a decision on the request.] 
 
       
  sec.29.311. Additional Claim Information Requirements. In addition to the 
general requirements in sec.29.1 of this title (relating to Claim Information 
Requirements), the following information is required on <nl>or with <ol>claims 
for home health services: 
 
  (1)-(4) (No change.) 
   
  (5) [written] prior authorization <nl>letter and/or number, invoice and/or 
bids <ol>obtained from <nl>or as specified by <ol>the health insuring agent; 
   
  (6)-(7) (No change.) 
   
  <nl>(8) plan of care signed and dated by the physician. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320954 
  Nancy Murphy 
 Section Manager 
 Texas Department of Human Services 
    Earliest possible date of adoption: June 1, 1993 
 For further information, please call: (512) 450-3765 
         
               Chapter 33. Early and Periodic Screening, Diagnosis, and 
Treatment 
  
  40 TAC sec.33.140 
 
  The Texas Department of Human Services (DHS) proposes an amendment to 
sec.33.140, concerning Early and Periodic Screening, Diagnosis, and Treatment-
Comprehensive Care Program Providers (EPSDT-CCP), in its EPSDT rule chapter. The 
purpose of the amendment is to clarify the reimbursement methodology for 
licensed dieticians and durable medical equipment. 
 Burton F. Raiford, commissioner, has determined that for the first five-year 
period the proposed amendment will be in effect there will be no fiscal 
implications for state or local government as a result of enforcing or 
administering the amendment. 
 Mr. Raiford also has determined that for each year of the first five years the 
amendment is in effect the public benefit anticipated as a result of enforcing 
the amendment will be that Medicaid providers will have the methodology used to 
reimburse them for covered services under the EPSDT-CCP Medicaid program. There 
will be no effect on small businesses. There is no anticipated economic cost to 
persons who are required to comply with the proposed amendment. 
 Questions about the content of the proposal may be directed to Janet Kres at 
(512) 338-6465 in DHS's Purchased Health Services Section. Comments on the 
proposal may be submitted to Nancy Murphy, Agency Liaison, Policy and Document 
Support-060, Texas Department of Human Services E-503, P.O. Box 149030, Austin, 
Texas 78714-9030, within 30 days of publication in the Texas Register. 
 DHS has scheduled a public hearing to accept comments on the proposed 
amendment. The hearing will begin at 9 a.m. on Monday, April 26, 1993, in the 
public hearing room on the first floor, east tower, of the John H. Winters 
Building, 701 West 51st Street, Austin. 
 The amendment is proposed under the Human Resources Code, Title 2, Chapters 22 
and 32, which provides the department with the authority to administer public 
and medical assistance programs and under Texas Civil Statutes, Article 4413 
(502), sec.16, which provide the Health and Human Services Commission with the 
authority to administer federal medical assistance funds. 
 
 
  sec.33.140. Early and Periodic Screening, Diagnosis, and Treatment-
Comprehensive Care Program Providers (EPSDT-CCP).  The following are approved 
EPSDT-CCP provider types and the approved Texas Medical Assistance (Medicaid) 
Program reimbursement methodology for each provider type. 
 
  (1)-(4) (No change.) 
   
  (5) Reimbursement for durable medical equipment. 
 
  (A) <nl>Direct vendor payments. <ol>DHS or its designee makes direct vendor 
payments to providers of durable medical equipment participating in the Medicaid 
program. Participating providers are reimbursed within the limits of the maximum 
allowable fee schedule established by DHS. The maximum allowable fee schedule 
for durable medical equipment is based on the lesser of the following: 
 
  (i)-(ii) (No change.) 
   
  (iii) the durable medical equipment acquisition fee, as defined in 
subparagraph (B)(i) of this paragraph<nl>; or <ol>[.] 
   
  <nl>(iv)<nl> if no discount is provided, the incurred cost to the dealer plus 
a percentage to be determined by DHS. 
     
  (B) <nl>Definitions. <ol>The following words and terms, when used in this 
section, shall have the following meanings, unless the context clearly indicates 
otherwise. 
 
  (i)-(v) (No change.) 
     
  <nl>(C) Ventilator Service Agreements. If the Medicaid client currently owns a 
ventilator, DHS may provide reimbursement for a service agreement, in accordance 
with DHS's policy, and at the lesser of the billed amount or a fee schedule 
developed by DHS. 
     
  (6)-(10) (No change.) 
   
  <nl>(11) Licensed Dietitians. These providers must be licensed by the Texas 
State Board of Examiners of Dietitians in accordance with the Licensed 
Dietitians Act, Article 4512h. Medicaid benefits under the EPSDT-CCP are for 
client nutritional services for the purpose of treating, preventing, or 
minimizing the effects of illness, injuries, or other impairments. Reimbursement 
is made according to the lesser of the billed amount or a fee schedule developed 
by DHS. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 29, 1993. 
 TRD-9320955 
  Nancy Murphy 
 Section Manager 
 Texas Department of Human Services 
    Earliest possible date of adoption: June 1, 1993 
 For further information, please call: (512) 450-3765 
         
                 
  TITLE 43. TRANSPORTATION 
 Part I. Texas Department of Transportation 
  Chapter 25. Division of Maintenance and Operations 
  
  Oversize and/or Overweight Permits 
 
  43 TAC sec.25.62 
 
  (Editor's Note: The Texas Department of Transportation proposes for permanent 
adoption the amended section it adopts on an emergency basis in this issue. The 
text of the amended section is in the Emergency Rules section of this issue.) 
   
  The Texas Department of Transportation proposes an amendment to sec.25.62, 
concerning Permit Issuance Requirements and Procedures. The amendment delays the 
expiration date of subsection sec.f(a)(B)(vii) from June 1, 1993, to December 
31, 1994. Section 25.62 prescribes the procedure for securing a permit pursuant 
to Texas Civil Statutes, Article 6701a to operate overweight or oversize 
vehicles on the state highway system. Statutory limits on the width, length, 
height, and weight of such vehicles are established in Texas Civil Statutes, 
Article 6701d-11. Texas Civil Statutes, Article 6701a authorize the department 
to issue special permits when those statutory limits are exceeded, but only on 
condition that the commodities to be transported cannot be reasonably dismantled 
and that the department determines that operation will be without material 
damage to the highway. The statute contains other provisions for permit 
application, fees, form, content, special conditions, and penalties. 
 The Texas Transportation Commission by Minute Order Number 100714, dated March 
25, 1992, acknowledged advice from the Texas Department of Commerce, the 
Chairman of the Railroad Commission of Texas, the Office of the Governor, and 
other officials that the economic health and welfare of Texas at that time 
required the consideration of certain economic factors when issuing oversize 
permits, and therefore amended sec.25.62 to allow the issuance of an oversize 
permit when the transport of more than one commodity in a single load creates or 
makes greater an illegal dimension of length, width, or height. That amendment 
will expire on June 1, 1993. The commission has now determined that conditions 
underlying the amendment continue to exist and are likely to continue for an 
indefinite future period, thereby requiring the continued effectiveness of the 
rule at least through December 31, 1994. 
 Gary K. Trietsch, P.E., director, Division of Maintenance and Operations, has 
determined that for the first five-year period the section is in effect there 
will be no fiscal implications for state or local government as a result of 
enforcing or administering the section. 
 Mr. Trietsch also has determined that for each year of the first five years the 
section is in effect the public benefit anticipated as a result of enforcing the 
section will be to foster, encourage, and enhance the state's economic growth 
and its continued recovery from depressed economic conditions and high 
unemployment rates of recent years. There will be no effect on small businesses. 
There is no anticipated economic cost to persons who are required to comply with 
the section as proposed. 
 Comments on the proposal may be submitted to Gary K. Trietsch, P.E., Director, 
Division of Maintenance and Operations, 125 East 11th Street, Austin, Texas 
78701-2383, (512) 416-3200. The deadline for submitting comments is 5 p. m., May 
7, 1993. 
 The Texas Department of Transportation will provide a public hearing pursuant 
to the Administrative Procedure and Texas Register Act, Texas Civil Statutes, 
Article 6252-13a, sec.5, to receive data, comments, and views concerning the 
proposed amended section. The public hearing will be held on Monday, April 19, 
1993, at 9 a.m. in the first floor hearing room of the Dewitt C. Greer State 
Highway Building, 11th and Brazos, Austin, and will be conducted in accordance 
with the procedures specified in 43 TAC sec.1.5. Any interested person may 
appear and offer comments, either orally or in writing, however, questioning of 
those making presentations will be reserved exclusively to the presiding officer 
as may be necessary to ensure a complete record. While any person with pertinent 
comments will be granted an opportunity to present them during the course of the 
hearing, the presiding officer reserves the right to restrict testimony in terms 
of time and repetitive comment. Organizations, associations, or groups are 
encouraged to present their commonly held views, and same or similar comments, 
through a representative member where possible. Comments on the proposed text 
should include appropriate citations to sections, subsections, paragraphs, etc., 
for proper reference. Any suggestions or requests for alternative language or 
other revisions in the proposed text should be submitted in written form. 
Presentations must remain pertinent to the issue being discussed. A person may 
not assign a portion of his or her time to another speaker. A person who 
disrupts a public hearing must leave the hearing room if ordered to do so by the 
chair or the presiding officer. Persons with disabilities who have special 
communication or accommodation needs and who plan to attend the hearing may 
contact Al Zucha, public information officer, at 125 East 11th Street, Austin, 
Texas 78701-2383, (512) 463-8588. 
 The amendment is proposed under Texas Civil Statutes, Articles 6666 and 6701a, 
which provide the Texas Transportation Commission with the authority to 
promulgate rules and regulations for the conduct of the work of the Texas 
Department of Transportation, and specifically to issue permits for the movement 
of oversize and/or overweight loads over the state highway system. 
 
  This agency hereby certifies that the proposal has been reviewed by legal 
counsel and found to be within the agency's authority to adopt. 
 Issued in Austin, Texas, on March 31, 1993. 
 TRD-9321023 
  Diane L. Northam 
 Legal Administrative Assistant 
 Texas Department of Transportation 
    Earliest possible date of adoption: May 7, 1993 
 For further information, please call: (512) 463-8630