Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 10. COMMUNITY DEVELOPMENT Part I. Texas Department of Housing and Community Affairs Chapter 9. Texas Community Development Program Subchapter A. Allocation of Program Funds 10 TAC sec.sec.9.1-9.6, 9.9 The Texas Department of Housing and Community Affairs (TDHCA) adopts amendments to sec.sec.9.1-9.6, and 9.9, concerning allocation of program funds, without changes to the proposed text as published in the August 17, 1993, issue of the Texas Register (18 TexReg 5439). The amendments establish the standards and procedures by which TDHCA will allocate federal fiscal year 1993 Community Development Block Grant nonentitlement area funds under the community development, Texas Capital, planning/capacity building, disaster relief, urgent need, and colonia funds. The amendments establish the Main Street Improvements Program under the Texas Capital Fund; establish the Colonia Construction and Colonia Demonstration fund programs under Colonia Fund; change the eligible activities under the Colonia Fund, and make various changes in the application procedures and selection criteria for the other program funds. No comments were received regarding adoption of the amendments. The amendments are adopted under the Texas Government Code, Chapter 2306, sec.2306.098, which provides the TDHCA with the authority to allocate CDBG nonentitlement area funds to eligible counties and municipalities according the Department rules. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329200 Henry Flores Executive Director Texas Department of Housing and Community Affairs Effective date: October 13, 1993 Proposal publication date: August 17, 1993 For further information, please call: (512) 475-3948 TITLE 16. ECONOMIC REGULATION Part II. Public Utility Commission of Texas Chapter 22. Practice and Procedure The Public Utility Commission of Texas adopts new sec. sec.22.1-22.5, 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. 245, and 22.261-22.264, with changes to the proposed text published in the April 6, 1993, issue of the Texas Register (18 TexReg 2250). Chapter 22 is a comprehensive revision of the Commission's Rules of Practice and Procedure, and will replace existing Chapter 21. The Commission has proposed the repeal of Chapter 21 simultaneously with the adoption of Chapter 22. Eighteen parties filed comments on the proposed sections. A number of comments suggested that the time allowed for response to pleadings should date from the date of receipt, rather than the date of filing, of the pleading. The proposed sections have been revised to uniformly require responses within certain specified days of receipt of pleadings, so the individual comments will not be addressed. Five parties filed comments on sec.22.2, relating to Definitions. Central and South West Companies ("CSW") suggested including additional definitions for certain terms. Houston Lighting and Power Company ("HL&P") stated that the definition of "hearing" is too broad, and that the definition of "protestant" should be clarified to state that a protestant's comment will not be considered evidence. Southwestern Public Service Company ("SPS") questioned why the definition of "financial interest" excluded the interest of a cooperative member, which SPS likens to the interest of a shareholder of an investor-owned utility. The City of El Paso complained that the definition of "party" is inadequate, inappropriate, and improperly includes the General Counsel. The Office of Public Utility Counsel ("OPC") stated that the definition of "financial interest" was unclear as to what interest the third sentence is intended to describe. OPC also stated that the rule should clarify whether letters to hearings officers and Commissioners have the status of pleadings. The Commission declines to modify any of the definitions in response to comments because the proposed definitions are sufficient and do not require further clarification. In response to OPC's comments, the definition of "financial interest" is intended to exclude the indirect interest which any beneficiary of a retirement system, institution, or fund has in the investments made by the fund. Further, to the extent that a letter has the characteristics of a pleading as that term is defined in sec.22.2, then the letter would be considered a pleading for the purposes of the rules. Regarding sec.22.3, relating to Standards of Conduct, OPC suggested that the statement that number running procedures do not constitute ex parte communications should be deleted because it violates the Administrative Procedure and Texas Register Act. The Commission disagrees with OPC's interpretation of the law, and has not modified the proposed section. Texas Electric Cooperatives, Inc. ("TEC"), stated that the rule should make clear that if all parties participate in a communication, it is not an ex parte communication and that by participating a party waives any notice requirements that might otherwise be applicable. TEC's concern does not require modification of the rule. The Commission believes it is generally preferable not to enumerate situations which do not constitute ex parte communications. Concerning disqualification or recusal of hearings officers, SPS opined that a presiding officer should recuse himself or herself from an entire proceeding if the presiding officer lacks impartiality or has a financial interest in any issue. Similarly, Texas Utilities Electric Company ("TU Electric") commented that if a party has moved for recusal or disqualification of a presiding officer from an entire proceeding, the presiding officer should not issue any orders whatsoever while the motion is pending. The Commission finds that the complexities of many of the proceedings at the Commission, as well as statutory time constraints, require the flexibility to allow a presiding officer to continue involvement in a case, including issuance of interim rulings, even if the presiding officer is properly disqualified as to one or more particular issues. Gulf States Utilities Company ("GSU") stated that a Commissioner should not make decisions, such as interim decisions, while a motion to disqualify or recuse is pending. Section 23.3(e)(4), which requires a Commissioner to act on a motion for disqualification or recusal prior to the time the Commission is scheduled to act on the matter for which recusal is sought, is adequate to address GSU's concern. OPC expressed concern that if the statements in sec.22. 3(d)(8) and (e)(6) that recusal has no effect on prior ruling or orders means that parties are barred from seeking modifications or vacations of prior rulings or orders, then the rule should be modified to make it consistent with current PUC practice. The rule is not intended to affect any rights parties may otherwise have to challenge prior orders and rulings, but merely provides that later recusal of the presiding officer or commissioner shall not, by itself, without further showing, be adequate grounds for such challenges. TU Electric suggested that motions to recuse or disqualify hearings officers or commissioners should be supported by affidavit. The Commission agrees, and has modified the section accordingly. CSW supported sec.22.5, relating to suspension of rules and commission- prescribed forms, and requested clarification that the use of more specific good cause tests in certain provisions is not intended to preclude the application of a general definition of good cause to other sections. OPC requested modification of the section to indicate that a good cause exception is an extraordinary exercise of the commission's discretion, and not a routine occurrence. A good cause exception should be neither a routine occurrence (as it might be under a reasonable explanation standard) nor should an extraordinary showing be required. Good cause should be considered under the standards expressed in the Texas civil law practice and administrative law practice recognized elsewhere. As a practical matter, exceptions to the rules should be rare. Concerning sec.22.32, relating to administrative review, SPS urged that the proposed rule should be modified to allow more expedited handling of non- disputed cases. Similarly, TU Electric suggested placing a 45-day time limit on the presiding officer's consideration of an application undergoing administrative review. The Commission believes that the rule provides the minimum time that is required to determine that an application is, in fact, not disputed, and to allow for thorough review of the application. As drafted, the rule requires the presiding officer to act as soon as reasonably practicable, such that further time constraints are unnecessary. CSW questioned whether it is appropriate for the Commission to allow presiding officers' decisions on applications to become final orders by inaction, particularly in light of the then proposed transfer of the hearings function to the State Office of Administrative Hearings. Given the lack of legislative action on this issue, the section, as drafted, is appropriate. Five commenters challenged the standards for docketing contained in sec.22. 33, relating to Tariff Filings. SPS stated that the standards are too subjective and should be deleted or rewritten. GSU suggested that a motion to intervene should require docketing only if the motion is granted. Texas Telephone Association ("TTA"), GTE Southwest Incorporated ("GTE"), and Contel of Texas, Inc. ("Contel") stated that there should not be a separate provision for docketing solely upon a staff request without a showing of any substantive basis for docketing. Appropriate and workable standards for determining whether a case should be docketed are necessarily subjective. A more rigid standard would need to be more conservative in order to assure that all applications requiring the additional scrutiny of a docketed proceeding were identified. TEC proposed that the rule should allow for a tariff creating a new rate for a service not presently available under existing rates to go into effect earlier than 35 days after filing, and that such tariffs should be exempt from suspension. The Commission finds no basis to assume that proposed rates for new services are per se just and reasonable, justifying across-the-board exemption from regulatory review prior to implementation. GSU commented that sec.22.34, relating to consolidation and severance, should allow for consolidation of only an issue, and not the entire proceeding. The provisions for consolidation and severance, considered together, accommodate GSU's concern, such that no change is necessary. The City of El Paso stated that the rule should provide that an issue or proceeding severed from a rate case will be treated as a rate proceeding for the purposes of PURA, sec.24(a) if the decision in the severed proceeding will impact ratemaking. The Commission believes that whether a proceeding is a rate proceeding within the meaning of PURA, sec.24(a) is a legal conclusion that should be decided on a case by case basis. Section 22.51, relating to notice for PURA, sec.43 and sec.42 proceedings, generated considerable comment. SPS expressed concern that the subsections (a) and (b) create an ambiguity concerning the deadline for intervention by requiring statements that an intervention deadline will be imposed and that the intervention deadline is 45 days after the date the application is filed. While the language may be somewhat redundant, its purpose is to urge interested persons to act quickly and to inform them, as precisely as possible, of the time allowed for intervention. SPS also urges that the publishers' affidavits be required to state only that the newspaper is in general circulation in the counties affected by the application, rather than stating the counties in which the newspaper is in general circulation. The rule, as proposed, is appropriate because it supports, rather than draws, the required conclusion regarding notice in counties containing territory affected by the application. Southwestern Bell Telephone Company ("SWB") stated that the rate case notice requirements should distinguish between major and non-major rate changes, and that proposed revenue increases compared to test year revenues should be required for major rate changes only. SWB made similar comments in connection with sec.22.243, relating to statements of intent for rate change proceedings. The rule has been modified to provide that proposed revenue increases must be compared to test-year revenues in major rate proceedings. TU Electric recommended deleting the requirement that the notice state the effective date, and modifying the rule such that a description of the service for which a change is requested need only be included if the proposed change in rates is not generally applicable. TU Electric made similar comments about sec.22.243, relating to statements of intent for rate change proceedings. The Commission believes that the better practice is to state the effective date, which is statutorily determined, in the notice, and for the notice to state that the requested change in rates in generally applicable to all service, if that is the case. Regarding notice to municipalities, GSU noted that the proposed rule does not address a utility's filing of its entire rate filing package with municipalities in its service area. The rule is not intended to address that issue; indeed, the Commission lacks authority to establish the filing requirements of other regulatory authorities having jurisdiction. AT&T stated that notice requirements for rate decreases should be left to the discretion of the presiding officer, or that the rule should provide that waiver or modification of requirements shall be freely granted on a showing of undue burden or expense, or other just cause. The Commission believes that the proposed rule establishes reasonable notice requirements, and that the better practice it to state the notice requirements in a rule. TU Electric stated that the rule should be written such that notice of a rate decrease by publication would never be required. The rule, as proposed, tracks PURA, sec.43(a) and is, therefore, appropriate. HL&P objected to the provision that reasonable notice in a sec.42 case may include the type of notice required for sec.43 rate changes because the utility may have insufficient information in such cases. The Commission notes that the cited sentence is not mandatory, and is intended to provide guidance to hearings officers and those who practice before the Commission. Regarding sec.22.52, notice in licensing proceedings, SPS, GSU, and TU Electric stated that the intervention time should be 45 days. TU Electric and GSU further stated that the failure to provide notice should not necessitate day-for-day extension of deadlines; such a sanction is too severe. The Commission believes that the intervention period of 70 days is reasonable, given the nature and duration of the proceedings. Further, the Commission notes that the rule provides that failure to provide the required notice shall be cause for day-for- day extension of deadlines, but does not provide for such a result automatically. Texas Ratepayers' Organization to Save Energy, Inc. ("Texas ROSE") commented that the rule should include notice requirements for notice of intent ("NOI") proceedings. It does. Texas ROSE also suggested that notices of proposed new generating plants should also be published in counties of alternative locations which were considered by the utility. TU Electric commented that, for NOI proceedings, the requirement for publication in the county where the plant is proposed to be located should be deleted. The Commission believes the rule, as proposed, provides for adequate notice. Although siting issues are not addressed in NOI proceedings, it is reasonable to require notice of the proposed location if it is known. Certificate of convenience and necessity ("CCN") proceedings involving new generating plants typically focus on the location proposed by the utility applicant, and the Commission would not issue a CCN for a plant in a location different than proposed by the applicant. Texas ROSE also suggested that the required notice also state that persons with questions about the project should contact the Office of Public Utility Counsel (OPC) as well as the utility. The Commission declines to unilaterally impose on OPC the responsibility to provide such a service. Last, Texas ROSE stated that notice should be published for four weeks, not two. The Commission believes publication of notice for two weeks is adequate. TEC stated that sec.22.54, Notice to be Provided by the Commission, should provide that no notice is required for prehearing conferences in which all parties participate. The Commission believes that the proposed rule, which is considerably more flexible than past practice in this regard, is reasonable. It is impossible to know until the prehearing conference actually occurs whether all parties have participated, and therefore whether notice would be required under TEC's approach. SPS and TU Electric complained about sec.22.56, Notice of Unclaimed Funds. It is true that the rule has no statutory basis, and that other law governs unclaimed funds. However, the section is included as an accommodation to the State Treasurer. CSW, GSU, and TU Electric questioned the requirements of sec.22.71(b), regarding the number of documents to be filed. The Commission agrees that this is an important area and has modified the rule to require ten copies of testimony and briefs, rather than 16. The number of copies required will be reviewed from time to time to assure that resources are efficiently used. For clarification, the stated number of copies includes the original. AT&T suggested that the filing deadline for rulemaking proceedings should be 5:00 p.m. GSU stated that a filing deadline of 4:00 p.m. would be helpful, if one is needed at all. A 3:00 p.m. filing deadline is necessary to allow the Central Records staff to process all incoming documents during regular business hours. Regarding the filing deadline for documents addressed to the Commission, sec.22.71(h), Sprint Communications Company L.P. ("Sprint") commented that the standard for not accepting late filings should be "inexcusable negligence" rather than ordinary negligence. The Commission does not agree that fairness and due process require use of an "inexcusable negligence" standard. GSU proposed that documents filed under sec.22.71(h)(2) should be served on parties by facsimile transmission or hand delivery. Such a requirement has been added. CSW noted that the proposed rules do not contain a provision that allows incorporation of Commission records in pleadings by reference, as is allowed under the current rules. Such a provision has been omitted because of the potential difficulty of preparing a record for appeal in cases where such incorporation by reference has occurred. This provision is not intended to preclude incorporation by reference of documents that are already part of the record in a proceeding. CSW, GSU, Texas-New Mexico Power Company ("TNP"), and TU Electric expressed concern about the fairness of imposing the page limitations in sec.22.72(e) on parties with the burden of proof. The Commission believes the stated page limits to be sufficient in most cases, and notes that the rule allows the presiding officer to establish other limits, based on factors such as the burden of proof. In response to comments filed by TU Electric, SWB, TTA, GTE, and Contel, the requirement in sec.22.73 that all pleadings containing allegations of fact not supported by the record be supported by affidavit has been deleted. Regarding sec.22.74, Service of Pleadings, Texas Association of Long Distance Telephone Companies ("TEXALTEL") requested addition of a requirement for service of pleadings in tariff proceedings under sec.22.33. Such a requirement has been added. TU Electric commented that a service list should not be required as part of the certificate of service; that requirement has been deleted. TTA, GTE, Contel, TU Electric, CSW, HL&P, and TNP filed comments on sec.22. 75, relating to notice and correction of material deficiencies in applications. The Commission adopts the rule as proposed because the time periods are reasonable and consistent with the duration of and priority given to the various types of applications. Regarding sec.22.76(a), Filing Amended Pleadings, HL&P stated that allowing amendment up to seven days prior to hearing should be eliminated. TU Electric, on the other hand, stated that the requirement that leave of the presiding officer be obtained is unnecessary and unreasonable. The Commission concludes that the rule, as proposed, strikes a reasonable balance. Sprint commented that the general rule for filing responsive pleadings should be ten workings days after receipt, not five. The Commission believes that as a general rule, five working days from receipt is an adequate opportunity for response. TTA, GTE, and Contel suggested that sec.22.78(c) relating to Emergency Action, should be modified for require a showing of conditions similar to those under which ex parte temporary restraining orders may be issued. The Commission declines to adopt such a strenuous standard because it envisions that this provision would be used rarely, and only after careful consideration by the presiding officer. GSU commented that in PURA, sec.42 cases, a utility should be allowed 180 days to prepare a rate filing package. The Commission finds that amount of time to be an unnecessarily long contribution to regulatory lag, particularly in view of the fact that sec.42 cases generally involve rate decreases. In response to comments filed by TU Electric, sec.22.79, Continuances, has been modified to apply only to hearings on the merits. As suggested by TTA, GTE, and Contel, the rule has been modified to allow agreed motions for continuance to be filed less than five days before the hearing. GSU filed comments stating that municipalities should be required to file motions to intervene. The proposed rule has not been changed. It is unnecessary to require parties that always have standing to file motions to intervene that require a ruling by the presiding officer. Texas ROSE stated that the standard for intervention contained in sec.22. 103(c) should include persons with a justiciable interest which may be indirectly affected by the outcome of a proceeding. SPS suggested a third basis for standing: an interest which the Commission, in its discretion, determines should be represented. GSU stated that "justiciable interest" should be defined. The proposed rule has been modified to allow for intervention by persons or representatives or persons with a justiciable interest which may be adversely affected by the outcome of the proceeding. A provision requiring an association or organized group to include a list of its members in its motion to intervene has been added to eliminate the need for such information to be sought through discovery. Regarding sec.22.104, Motions to Intervene, GSU and TU Electric stated that the deadline for filing should be 45 days after an application is filed for all types of cases. OPC opposes intervention deadlines and believes that late intervention should be liberally granted; moreover, the burden should be on the party opposing late intervention. TEC believes that late intervention should not be allowed in electric transmission line cases unless the utility failed to provide the required notice. TU Electric stated that late intervenors should always be required to take the proceeding as it is at the time of their intervention. The Commission concludes that the rule, as proposed, strikes a reasonable balance of the interests of all participants in Commission proceedings. TU Electric commented that the right to discovery should begin only after a party's motion to intervene has been granted. The Commission believes that allowing persons with pending motions to intervene to exercise all rights of parties is the most equitable approach, and does not impose an unreasonable burden on persons from whom discovery may be sought. There was considerable disagreement among the commenters regarding the issue of alignment of parties. HL&P stated that alignment of municipalities should be presumed unless there is a showing of good cause for separate participation. TU Electric supports mandatory alignment of parties in rate proceedings. TNP believes alignment should be voluntary, and notes that mandatory alignment may raise due process issues. Texas ROSE proposed modification of the rule to allow alignment only of parties advocating the same positions on specific issues of fact and law, to allow previously alignments to be reversed, and to make clear that alignment does not limit or restrict the scope of any intervenor's presentation or submission of evidence, or objection to any other party's evidence. Texas Industrial Energy Consumers ("TIEC") stated that mandatory alignment for the purposes of participating in a hearing violates the parties' due process rights. The Commission concludes that the proposed rule, which allows for alignment of parties having the same position on issues of fact and law, is sufficient to promote efficiency yet protect parties' due process rights. El Paso Electric Company ("EPEC") commented that the availability of interim appeal under sec.22.123 should not be limited to orders that immediately prejudice a substantial or material right of a party or materially affect the course of a hearing. The Commission finds that the standard provides an appropriate balance of the need of parties to seek Commission review of allegedly egregious rulings with the need for proper exercise of presiding officer discretion and procedural order. TU Electric, EPEC, and GSU made suggestions for improvement of procedures relating to appeals of interim orders. However, the Commission concludes that the proposed rule establishes procedures which properly take into account the PUC's internal procedural needs. CSW, SPS, OPC, and TU Electric voiced valid objections and concerns about the requirement for prehearing statements in sec.22.124. Accordingly, the section has been modified to require statements of position from parties who have not prefiled testimony and from parties who do prefile testimony to the extent the parties' positions are not fully set out in the testimony. Regarding sec.22.125, Interim Rate Relief, HL&P and EPEC stated that the Commission lacks authority to order interim rates under sec.42. The Commission recognizes that its authority to order interim rates under sec.42 has been challenged, but the Commission has determined that the adopted rule will apply to those requests for interim rates where the Commission has the authority to order interim rates. CSW, TTA, GTE, and Contel commented that interim rate relief should be available in tariff proceedings under sec.22.33. The proposed rule has not been changed in this regard because tariff proceedings are, by their nature, expedited proceedings which are handled differently from other rate cases. SPS and SWB objected to the requirement that a request for interim rates be filed no less than thirty days before the rates are proposed to take effect, unless the parties agree to a later filing date. The Commission believes that the thirty day interval is the minimum necessary to allow for notice, the opportunity for parties to contest the request, and the presiding officer to rule on the request. The City of El Paso and OPC urged that the current standard for allowing interim rates should not be changed; OPC further stated that the standard set out in the proposed rule is not a standard at all. TU Electric stated that the proposed standards are an appropriate change over the current standard; that paragraph (c)(1) should be deleted as irrelevant; and that "Whether interim rates are necessary to effect uniform system-wide rates" should be added as a consideration. CSW expressed concern that paragraph (c)(5) ("Any other relevant factor...") could be problematic if parties do not know the standard to be applied at the beginning of the hearing. TTA, GTE, and Contel stated that the standards should be modified when applied to applications for approval of a new service, competitive service, or other tariff change not in the nature of a major rate proceeding. The Commission believes that the rule relating to interim rate relief is in need of updating, and that the enumerated considerations for a finding of good cause are appropriate. TU Electric's suggestion about system- wide rates has been added. SWB and TU Electric proposed deletion of sec.22.125(d). The paragraph tracks the language in PURA, modified to remove references to sec.42 proceedings, and therefore correctly reflects the law. Texas ROSE filed a number of comments directed at requirements for discovery of computer programs and computer generated data. Similar concerns were addressed in connection with sec.22.243 relating to statements of intent for rate change proceedings. The Commission acknowledges that increasing reliance on computer assisted analysis for support of applications raises difficult and important issues, including property law questions. However, the Commission declines to adopt Texas ROSES's proposed modifications without the opportunity for further comment and discussion by other interested parties. Discovery issues related to computer programs and computer-generated analysis may handled on a case-by-case basis. OPC requested that the Commission state whether the proposed rules are intended to supplant the Texas Rules of Civil Procedure. The rules are not intended as a substitute for appropriate reliance on the Texas Rules of Civil Procedure, except to the extent that the rules expressly provide different requirements for matters also covered by the Texas Rules of Civil Procedure. OPC commented that sec.22.142, relating to limitation of discovery requests is unnecessary. As requested by OPC, the Commission confirms that the protection provided under this rule is to be granted only in extraordinary circumstances, and will not be available simply to attempt to limit discovery. Regarding sec.22.143, relating to depositions, HL&P stated that the rule should clarify whether a deposition can be used for any purpose in a proceeding. The Commission finds it impossible to anticipate all the uses a party may attempt to make of a deposition, and leaves it within the discretion of the presiding officer to rule on proposed uses in accordance with the Texas Rules of Civil Evidence and APA, sec.14. HL&P and GSU stated that, regarding requests for information, there should be an express limitation that a responding party will not be required to create documents that are not in existence. The Commission interprets sec.22. 141 to require creation of documents only to the extent necessary to communicate to the requesting party 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. TU Electric suggested a noon service deadline for requests for information. Time of day service deadlines are reasonable if service is accomplished by facsimile transmission. Section 22.144(b)(2) authorizes service by facsimile transmission only by agreement of the party from whom discovery is sought or if authorized by the presiding officer; in such cases, time of day deadlines can be addressed in the agreement or order, if necessary or desirable. Sprint, SWB, TU Electric, GSU, and EPEC had problems with the times allowed for responding to requests for information, objecting to requests for information, filing motions to compel, and responding to motions to compel. The times allowed for filing objections, motions to compel, and responses to motions to compel have been modified to allow more time for parties to negotiate discovery disputes before objections are filed. Limiting the number of requests for information that may be propounded by parties is a controversial issue. CSW commented that limitations may be appropriate. GSU supports limitations. TEXALTEL supports efforts to make responding to discovery requests less intrusive and burdensome, and requested inclusion of a provision aimed alleviating some of the burden imposed on association members when discovery is directed at individual members. TEC stated that the proposed limits are too high for cooperative cases, which should be limited to 100 requests. TTA, GTE, and Contel support limitations, and suggest that the section could be improved by including rate cases for smaller utilities in the 250 request group. SWB and TU Electric opined that the proposed limitations are too high. TU Electric further suggested that no discovery should be permitted until 15 days after an application has been filed, and that a deadline for asking requests for information should be established thirty days prior to the start of the hearing on the merits. The City of El Paso and OPC strongly oppose limitations on the numbers of requests for information allowed. The limitations on requests for information contained in the proposed rule have been replaced with a broader approach that includes placing an emphasis on the duty to negotiate discovery disputes before filing objections; providing presiding officers express authority to curtail a party's discovery opportunities if abuse occurs; development of a standard form for protective orders; and requiring identification of membership of associations and organized groups in motions to intervene. Regarding sec.22.161, Sanctions, CSW and EPEC questioned whether statutory authority for imposition of sanctions exists. CSW stated that disallowance of rate case expenses is unfair because it does not apply equally to all parties. The Commission speculates that parties who are not allowed to recover rate case expenses through rates would gladly accept the possibility of disallowance of their expenses as a sanction in return for having someone else pay their expenses. The Commission clarifies that any disallowance of rate case expenses would be based on the requirement that only reasonable and necessary expenses be included in rates. OPC believes that sanctions should extend to unprofessional and unethical conduct. The Commission believes that the rule, as proposed, is a proper and useful exercise of authority. OPC commented that a party who initiated a proceeding should not be allowed to withdraw an initial pleading under sec.22.181(b) without leave of the Commission or presiding officer. The requested change has not been made because the Commission believes it has sufficient authority to prevent unjust or unreasonable results in connection with withdrawal of applications. EPEC stated that the portion of sec.22.182 allowing summary decision based on "materials obtained through discovery or otherwise" is a departure from the Texas Rules of Civil Procedure, is open-ended and ill-defined, and should be deleted. The Commission believes that the proposed language provides necessary flexibility, noting that the section requires motions for summary decision to be supported by affidavits based on personal knowledge and setting forth such facts as would be admissible in evidence. TTA, GTE, and Contel stated that sec.22.202(c) should be modified to allow the presiding officer to compel the attendance of witnesses, but not to call a witness on the presiding officer's own initiative. TTA, GTE, and Contel further suggested that the authority for a presiding officer to "issue discovery" is an unusual power which should be deleted. The Commission determined that while the complained-of powers may not be typical, they are appropriate in PUC proceedings. Proposed sec.22.202(d) required the presiding officer to establish limits for presentation of evidence. CSW supports mandatory time limits on evidence presentation. TNP stated that the requirement seems reasonable. TIEC believes the presiding officer should retain the discretion to limit the number of witnesses and to limit the time for cross-examination. TU Electric stated that limiting testimony and number of witnesses should be discretionary. The proposed rule has been modified to allow the presiding officer to establish limitations where appropriate. Requiring limits in all cases is an unnecessary procedural burden. It is sufficient to clearly authorize the presiding officer to limit presentation of evidence when necessary or appropriate. CSW, GSU, and EPEC commented that oral supplemental rebuttal, as allowed under sec.22.203(b) should not be limited to matters raised in cross-examination of non-applicant witnesses. The purpose of oral supplemental rebuttal is to allow the party with the burden of proof a reasonable opportunity to rebut all opposing evidence; that opportunity need not be extended if the applicant's own witness provides the evidence. OPC stated that any party that is legitimately surprised about another party' prefiled or oral testimony should be allowed to request leave to provide supplemental oral or written testimony. The rule does not preclude such a request. Sprint and SPS stated that parties should be required to provide copies of legal authority not found in the Commission's library only if required by the presiding officer. The proposed requirement has been routinely included in presiding officer's orders for some time, apparently without causing undue hardship for parties, and is a reasonable accommodation for the Commission. CSW's request to have the rules include a statement that "no evidence will be admissible in a proceeding if it is beyond the scope of the applicable pleadings" is redundant of other provisions in the rules, and has not been included. TTA, GTE, and Contel commented that sec.22.222(a), relating to Facts Noticeable, is more limited than APA, and that it would be better to state that official notice may be taken of facts subject to judicial notice under APTRA or the Texas Rules of Civil Evidence. The Commission's proposed rule was designed to address the needs of PUC proceedings, and was not changed. Sprint, EPEC, OPC, and TU Electric objected to the provision of sec.22.225 which provides that the General Counsel may not be required to file his case more than seven days prior to hearing except by agreement or for good cause shown. The Commission has determined that the accommodation to the General Counsel is reasonable and appropriately recognizes the need to allow sufficient time to prepare a case in the public interest. TU Electric, CSW, EPEC, TTA, GTE, Contel, and GSU suggested other modifications to proposed sec.sec.22.225-22.228. Recognizing that there may be a variety of acceptable ways to fashion procedural requirements, the Commission believes the rule, as proposed, creates a reasonable procedural framework. TU Electric stated that sec.22.242(a), which allows an appeal of a complaint to the Commission if the municipality with original jurisdiction over the complaint has not issued a decision on the merits of a complaint violates PURA, sec.26. The Commission disagrees. The rule provides for appeals of decisions of municipalities, including decisions not to hear a complaint or class of complaint. AT&T stated that major commercial customers should be excepted from the informal disposition requirement of proposed sec.22.242(c). The Commission believes that sec.22.242(b)(2) addresses AT&T's concern. CSW, TTA, GTE, Contel, and TU Electric commented on proposed sec.22.242(h) relating to continuation of service during processing of complaint, stating that such an order should be issued only after notice and hearing. TU Electric stated that some type of security should be required. The Commission believes that the provision for requiring continuation of service is an important consumer protection not adequately provided for elsewhere in the Commission's rules, but has added a requirement for notice and opportunity for hearing before continuation of service may be required. In response to TU Electric's concern about requiring security, the Commission notes that the rule provides for issuance of an order on such terms as may be reasonable to preserve the rights of the parties during the processing of the complaint. TTA, GTE, and Contel recommended that sec.22.261, Proposals for Decision, be rewritten to conform to APA, sec.15. With deletion of proposed sec.22.261(e) and (f), the section, as a whole, conforms to APA. The City of El Paso recommended that proposed sec.22.262 be modified to require commissioners who decline to adopt presiding officer's recommendations to identify evidence they find more credible or policy reasons to support not adopting the presiding officer's recommendations, as in APA, 13(j). APA, sec.13(j) does not currently apply to PUC proceedings. The Commission declines to impose the suggested additional requirements on itself. Subchapter A. General Provisions and Definitions 16 TAC sec.sec.22.1-22.5 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), which provides 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. Cross-index to Statutes: Article 1446c, the Government Code, sec.2001.004. 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 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 officer without a hearing and without formal action by the commission. Affected Person -The definition of affected person is that definition given in the Public Utility Regulatory Act, sec.3(h). Applicant-A person, including the 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. APA-The Administrative Procedure Act, the Government Code, Chapter 2001, 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 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 APA. 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 Officer -When used in this chapter, the term hearings officer includes an administrative law judge. Intervenor-A person, other than the applicant, respondent, or the general counsel, who is permitted by this chapter or by ruling of the presiding officer, 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; General Requirements for Applications). 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 officer. Presiding Officer -The commission, any commissioner, the director of hearings, or any administrative law judge or hearings officer 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 APA, sec.5 conducted to adopt, amend, or repeal a commission rule. Tariff Filing-A proceeding initiated by an application filed pursuant to Chapter 23, sec.sec.24-28, 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 officer 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 officer 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, sec.sec.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 Officers. A presiding officer 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 officer in fact lacks impartiality, or the presiding officer's impartiality has been reasonably questioned; (2) the presiding officer, or any relative of the presiding officer, is a party or has a financial interest in the subject matter of the issue or in one of the parties, or the presiding officer has any other interest that could be substantially affected by the determination of the issue; or (3) the presiding officer or a relative of the presiding officer has participated as counsel, advisor, or witness in the proceeding or matter in controversy. (d) Motions for Disqualification or Recusal of a Hearings Officer. (1) Any party may move for disqualification or recusal of a hearings officer stating with particularity the grounds why the hearings officer 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 shall set forth such facts as would be admissible in evidence, and shall be verified by affidavit. (2) The motion shall be filed within ten 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 overnight courier delivery. (3) Written responses to motions for disqualification or recusal shall be filed within three working days after the receipt of the motion. The hearings officer may require that responses be made orally at a prehearing conference or hearing. (4) The hearings officer shall rule on the motion for disqualification or recusal within six working days of the filing of the motion. (5) The hearings officer 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 officer 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 disqualification or 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) Disqualification or recusal of a hearings officer, 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, shall set forth such facts as would be admissible in evidence, and shall be verified by affidavit. (2) Subject to the provisions of paragraph (1) of this subsection the motion shall be filed within ten 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 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 or disqualification of a commissioner 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. 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 officer, 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 and Commission-Prescribed Forms. (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 officer may grant exceptions to any requirement in this chapter or in a commission-prescribed form for good cause. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329178 John M. Renfrow Secretary Public Utility Commission of Texas Effective date-November 1, 1993 Proposal publication date-April 6, 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 amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 commissioner 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 the Administrative Procedure Act. 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 official capacity and not individually. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329179 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 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 amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer 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 officer 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 officer finds that no hearing or commission action is necessary and that administrative review is warranted. (b) Hearings Officer's Order. If an application qualifies for administrative review, the hearings officer 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 officer, vacate the order of the hearings officer 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 officer's order, the commission has not scheduled the application to be considered at an open meeting, the order is deemed approved and 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 Presiding Officer's Order. Nothing in this section shall be construed to preclude any party from filing exceptions to the presiding officer's order, provided such exceptions are filed with the commission within 15 days after the issuance of the presiding officer'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.23.25-23.28 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 officer. 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 officer 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 Officer. The presiding officer 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 officer may order the consolidation of proceedings on his or her own initiative. Proceedings may be consolidated if the presiding officer 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 officer may order the severance of proceedings on his or her own initiative. Proceedings or issues may be severed if the presiding officer 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329180 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter D. Notice 16 TAC sec.sec.22.51-22.56 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), which provides 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. 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 for major rate proceedings; the change must be 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 (a)(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, sec.42, the presiding officer 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 officer. (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 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 is proposed to 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 officer 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 APA 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 APA, sec.5. sec.22.55. Notice in Other Proceedings. In proceedings other than those governed by sec.sec.22.51-22.53 of this title (relating to Notice), the presiding officer 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329181 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter E. Pleadings 16 TAC sec.sec.22.71-22.80 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer, 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: 10 copies; (3) rate filing package: 16 copies; (4) applications for certificates of convenience and necessity and notice of intent petitions: 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 is 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 proposals for decision, the office hours of the commission filing clerk are from 8:00 a.m. to 5:00 p.m., Monday through 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 3:00 p.m. on the date due, unless otherwise ordered by the presiding officer. (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 11:00 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 meet the deadline was not the result of the negligence of the party. The finding of good cause lies within the discretion of the commission. (3) Documents filed under paragraph (2) of this subsection shall be served on all parties by hand delivery, facsimile transmission, or by overnight courier delivery. 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 officer, 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 section, 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 one inch wide, except that any letter, tariff filing, rate filing, or proposed findings of fact and conclusions of law 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. (c) Citation form. Any filing with the Commission should comply with the rules of citation, set forth in the most current edition of the Texas Rules of Form published by the University of Texas Law Review Association (for Texas authorities) and the most current edition of A Uniform System of Citation, published by The Harvard Law Review Association (for all other authorities). Neither Rule 1.1 of the Uniform System nor the comparable portion of the Texas Rules of Form shall be applicable in Commission proceedings. (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 officer may establish a larger or smaller page limit. In establishing larger or smaller page limits, the presiding officer 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. General Requirements for Applications. 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. sec.22.74. Service of Pleadings. (a) Pleadings Submitted to a Presiding Officer. At or before the time any document or pleading regarding a proceeding is submitted by a party to a presiding officer, 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 officer for in camera inspection; provided, however, that the party submitting documents for in camera inspection shall file and serve notice of the submission upon the other parties to the proceeding. Pleadings submitted to a presiding officer during a hearing, prehearing conference, or open meeting shall be filed with the commission filing clerk as soon as is practicable. These requirements apply to all documents and pleadings submitted in a proceeding under sec.22.33 of this title (relating to Tariff Filings); service shall be made on all persons who previously submitted a pleading to the presiding officer in that proceeding. (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)." 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 officer 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 struck 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 officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient. (3) If the presiding officer determines that material deficiencies exist in an application, the presiding officer 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 officer has not issued a written order concluding that material deficiencies exist in the application, the application shall be deemed sufficient. (3) If the presiding officer determines that material deficiencies exist in an application, the presiding officer 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 officer, 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 officer may sever the issue from the proceeding. Any amended pleading offered for filing within seven days of the date of hearing or thereafter will be considered by the presiding officer 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 officer 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 officer 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 officer 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 officer. 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 officer, commission rule, or statute. (c) Rulings on Motions. The presiding officer 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 officer, 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. Responsive pleadings shall state the date of receipt of the pleading to which response is made. (b) Responses to Complaints. Unless otherwise specified by statute, by this chapter, or by order of the presiding officer, 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 officer 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 officer 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 presiding officer 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 officer, motions for continuance of the hearing on the merits shall be in writing and shall be filed not less than five days prior to the hearing. 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 based 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 officer shall grant continuances agreed to by all parties provided that any applicable statutory deadlines are extended as may be necessary. Motions for Continuances agreed to by all parties may be filed within five days of the hearing on the merits, and shall state suggested dates for rescheduling of the hearing. 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 Sections" of the Texas Register 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329182 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter F. Parties 16 TAC sec.sec.22.101-22.105 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer 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 officer. 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 officer may allow oral or written comments to be made by protestants. sec.22.103. Standind 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 officer. 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 such proceeding, a municipality desiring to intervene must file a notice of intervention as specified in sec.22.103(b) of this title (relating to Standing to Intervene). In any other proceeding, a municipality desiring to intervene must file a motion to intervene as set forth in sec.22.104 of this title (relating to Motions to Intervene). (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. Other persons desiring to intervene must file a motion to intervene and be recognized as a party under sec.22.104 of this title (relating to Motions to Intervene) in order to participate as a party in a Commission proceeding. Any association or organized group must include in its motion to intervene a list of the members of the association or group that are persons other than individuals that will be represented by the association or organized group in the proceedings. The group or association shall supplement the list of members represented in the motion at any time a member is added or deleted from the list of members represented. 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 or represents persons with a justiciable interest which may be adversely 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 officer. 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 officer'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 officer 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 likely to be served by allowing the intervention. (2) The presiding officer 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 or portions of 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 officer 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 officer 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329183 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter G. Prehearing Proceedings 16 TAC sec.sec.22.121-22.126 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. sec.22.121. Prehearing Conferences. The presiding officer shall schedule prehearing conferences as necessary for the efficient management of the proceeding. The presiding officer 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 officer 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 shall 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 sec.22.126 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 officer 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 a proposal for decision. (b) Procedure for Appeal. If the presiding officer intends to reduce an oral ruling to a written order, the presiding officer 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 ten 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 officer 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 officer 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 ten 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 officer 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. Statements of Position. (a) Statements of Position Required. Each party that has not prefiled direct testimony and, insofar as its prefiled direct testimony does not address issues that a party intends to litigate, each party that has prefiled direct testimony shall file a statement of position no later than three working days before the start of a hearing unless the presiding officer 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 officer may, pursuant to sec.22.161, sanction any party who fails to comply with the requirement that a statement of position be filed. (b) Contents of Statement of Position. Unless otherwise provided by order of the presiding officer, the statement of position 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; and (3) a concise statement of the party's position on each issue identified pursuant to paragraph (2) of this subsection. 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 officer 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 officer 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; (5) whether interim rates are necessary to effect uniform system-wide rates; and (6) any other relevant factors as determined by the presiding officer. (d) Standard and Burden of Proof. Pursuant to PURA, sec.40, in any proceeding involving a proposed interim change in rates, the burden of proof to show that the change proposed by the utility or existing rate is just and reasonable shall be on the utility. (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. 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 ten 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329184 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter H. Discovery Procedures 16 TAC sec.sec.22.141-22.145 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer may limit discovery, by order, to protect a party against unreasonable or unwarranted discovery requests. (1) The presiding officer 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 officer 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 officer; (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) Denial of Right to Discovery Requests. The presiding officer may deny a party the right to continue discovery, by order, upon proof and a finding that the party abused the discovery process. (c) Protection of Confidential or Proprietary Information. The presiding officer may issue a protective order governing the production of confidential or proprietary information as is appropriate in each proceeding before the commission. The order shall be in the form adopted by the commission as the standard protective order. 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 APA. 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 officer. Requests for information that are received after 3: 00 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 officer, 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 local 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. Parties shall negotiate diligently and in good faith concerning any discovery dispute prior to filing an objection. The objections shall include a statement that negotiations were conducted diligently and in good faith. If negotiation fails, objections to requests for information, if any, shall be filed within ten calendar 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 officer 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 officer 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. The party seeking discovery shall file a motion to compel no later than five working days after the objection is received. Absence of a motion to compel will be construed as an indication that the parties have resolved their dispute. The presiding officer 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 five 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 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 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 officer, under seal, no later than one working day after it requests an in camera inspection. Documents submitted for in camera 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) 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 APA sec.14, the presiding officer 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 officer 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 APA 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329185 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter I. Sanctions 16 TAC sec.22.161 The amendment is adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer, the commission or the party requesting the subpoena or commission for deposition may seek enforcement pursuant to APA. (b) Imposition of Sanctions By A Hearings Officer. If, after notice and opportunity for hearing, the hearings officer 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 officer 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) of this section that may be imposed by a hearings officer, 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 officer 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 officer. 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 officer or commission of the conduct at issue, should request specific relief, and shall be verified by affidavit. 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 officer shall be appealable pursuant to sec.22.123 of this title (relating to Appeal of an Interim Order). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329186 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter J. Summary Proceedings 16 TAC sec.22.181, sec.22.182 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. sec.22.181. Dismissal of a Proceeding. (a) Motions for Dismissal. (1) Upon the motion of the presiding officer or the motion of any party, the presiding officer 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 from the date of receipt 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 officer determines that the proceeding should be dismissed, the presiding officer shall prepare a Proposal for Decision to that effect and, if requested, shall set an expedited schedule for exceptions and replies. The commission shall consider the Proposal for Decision as soon as is practicable. (b) Withdrawal of application. A party that initiated a proceeding may 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 officer shall issue an order of dismissal without prejudice. sec.22.182. Summary Decision. (a) Motion for Summary Decision. The presiding officer 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 officer. 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 officer 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 officer will issue a Proposal for Decision or interim order on the issues recommended to be resolved by summary decision. Parties may file exceptions and replies to exceptions to a Proposal for Decision 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329187 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter K. Hearings 16 TAC sec.sec.22.201-22.205 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 Officer. (a) Presiding Officer to Conduct Hearings. Hearings in contested cases shall be conducted by one or more presiding officers. The presiding officer has the decision making authority set out in the commission rules, APA, 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 Officer. The presiding officer has broad discretion in conducting the course, conduct, and scope of the hearing. The presiding officer'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 a proposal for decision, 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 officer shall rule expeditiously on all motions and objections made at the hearing. The presiding officer 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 officer 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 may: (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 officer is unable to continue presiding over a case, the director of hearings may appoint a substitute presiding officer who shall perform any function remaining to be performed without the necessity of repeating any previous proceedings. The substitute presiding officer shall read the record of the proceedings that occurred prior to his or her appointment before issuing a Proposal for Decision or recommended findings of fact and conclusions of law. sec.22.203. Order of Procedure. (a) Opening the evidentiary hearing. The presiding officer 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 officer 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 officer'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 officer 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 officer and the parties at the beginning of the applicant's rebuttal case, unless otherwise ordered by the presiding officer. 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 officer's discretion. (6) The presiding officer may question any witness testifying in a case. A party may raise an evidentiary objection to any question asked by the presiding officer, and the presiding officer shall rule on any such objection. (7) Subject to the requirements of APA, the presiding officer may call upon any party for further material or relevant evidence on any issue before issuing a proposal for decision. 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 officer 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 officer within a reasonable time after the discovery of the error. The presiding officer may establish time limits for proposing corrections. If no party objects to the proposed corrections within 12 days after filing, the presiding officer may direct that the official reporter correct the transcript as appropriate. In the event that the presiding officer or a party disagrees on suggested corrections, the presiding officer 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 APA. sec.22.205. Briefs. Briefs shall conform, where practicable, to the requirements set forth for formatting pleadings in this chapter. Briefs in excess of ten pages shall contain a table of contents with page numbers stated. The presiding officer 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329188 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 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 amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 officer during a hearing are not required. It shall be sufficient that the party notified the presiding officer 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 officer. 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 officer and all parties, unless otherwise ordered by the presiding officer on a showing of good cause. 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 officer may propose to take official notice of facts, material, records, or documents authorized by APA, sec.14(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, Proposals for Decision, and Hearings Officers' Orders. Official notice shall not be taken of judicial and administrative decisions, commission orders, proposals for decision, and hearings officers' 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, proposals for decision, and hearings officers' 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 officer or an official reporter. sec.22.224. Documentary Evidence. 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 officer may limit those admitted to a number of documents which are representative, provided no party's rights are prejudiced thereby. The presiding officer 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 officer 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 officer 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 officer 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 requests for information, shall be filed on dates established by the presiding officer 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 officer. (5) Nothing in this section shall preclude a party from using discovery responses in its direct or rebuttal case even if 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 PURA, sec.43, 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 officer. Except for good cause shown or upon agreement of the parties, the general counsel may not be required to file earlier than seven days prior to hearing. (C) The presiding officer shall establish dates for filing of rebuttal testimony. (7) The presiding officer shall establish a pre-filing schedule for PURA, 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 the legal rights of any party. A party that intends to offer late-filed testimony into evidence shall, at the earliest opportunity, inform the presiding officer, who shall establish reasonable procedures and deadlines regarding such testimony. (b) Admission of Prefiled Testimony. Unless otherwise ordered by the presiding officer, 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 officer 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 officer, 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 officer 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 officer 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 officer. 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 officer or official reporter, if one is present. Copies of the exhibit shall be furnished to the presiding officer and distributed to each party present at the hearing no later than the time the exhibit is offered in evidence, or at an earlier time if ordered by the presiding officer 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 officer 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 officer 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 receipt of the motion requesting admission of the exhibit. sec.22.227. Offers of Proof. When the presiding officer 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 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 officer 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 officer, 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329189 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter M. Procedures and Filing Requirements in Particular Commission Proceedings 16 TAC sec.sec.22.241-22.245 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. 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 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 of prehearing conferences and hearings. The presiding officer may require additional notice. (b) Show Cause Orders in Complaint Proceeding. The presiding officer, 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 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 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. (c) 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. (d) Information Required. The director of hearings may permit a complainant to cure any deficiencies under this subsection and may waive 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. (e) 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. (f) Docketing of Complaints. The director of hearings shall docket any complaint that substantially complies with the requirements of this section. (g) Continuation of Service During Processing of Complaint. In any case in which a formal complaint has been filed and an allegation is made that a utility or other person is threatening to discontinue a customer's service, the presiding officer may, after notice and opportunity for hearing, issue an order requiring the utility or other person to continue to provide service during the processing of the complaint. The presiding officer 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. (h) 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, 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. For major rate proceedings, the expected change in revenues must be expressed as an annual dollar increase over adjusted test year revenues and as a percent increase over adjusted test year revenues. (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 motion to intervene 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 officer 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 officer, 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 officer 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 officer. (e) Disputes. Any dispute over the sufficiency or legibility of a petition shall be resolved by the presiding officer 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 and to either approve or disapprove the notice of intent. (b) Procedural Schedule. The presiding officer 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. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329190 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter N. Decision and Orders 16 TAC sec.sec.22.261-22.264 The amendments are adopted under Texas Civil Statutes, Article 1446c, sec.16(a), 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. sec.22.261. Proposals for Decision. (a) Requirement and Contents of Proposal for Decision. 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 a proposal for decision is served on all parties. The proposal for decision shall be prepared by the hearings officer(s) who conducted the hearing or who have read the record. The proposal for decision 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. The presiding officer may supplement or amend a proposal for decision in response to the exceptions or replies submitted by the parties or upon the presiding officer's own motion. Making corrections or minor revisions of a proposal for decision is not considered issuance of an amended or supplemental proposal for decision. (b) Procedures Regarding Proposed Orders. If the presiding officer'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 officer shall establish a deadline for submitting proposed corrections or clarifications. (c) Findings and Conclusions. The presiding officer 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 Proposal for Decision within the time period specified by the presiding officer. If any party files exceptions, the opportunity shall be afforded to all parties to respond within a time period set by the presiding officer. (2) Presentation. The presiding officer 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 officer may allow additional time for good cause shown. If additional time is allowed for exceptions, reasonable additional time shall be allowed for replies. sec.22.262. Commission Action After A Proposal for Decision. (a) Commission Action. The commission may adopt, or decline to adopt, the recommended decision in the proposal for decision or proposed order in whole or in part. The commission is not restricted by the recommendations made by the presiding officer. (b) Remand. The commission may remand the proceeding for further consideration. (1) The commission may direct that further consideration by a hearings officer 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 proposal for decision or proposed order shall be prepared. If an amended or supplemental proposal for decision is prepared, the provisions of sec.22.261(d) of this title (relating to Proposal for Decision) apply. Exceptions and replies shall be limited to discussions, proposals, and recommendations in the supplemental proposal for decision. (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 3:00 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 a proposal for decision. (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 APA. (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 APA. (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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329191 John M. Renfrow Secretary Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: April 6, 1993 For further information, please call: (512) 458-0100 Subchapter O. Rulemaking 16 TAC sec.sec.22.281-22.284 The Public Utility Commission of Texas adopts new sec. sec.22.281-22.284, with changes to the proposed text as published in the May 7, 1993, issue of the Texas Register (18 TexReg 2929). The new sections will provide for greater procedural consistency among rulemaking proceedings, establish additional opportunity for participation in rulemaking proceedings, and provide guidance to persons who participate in rulemaking proceedings at the Public Utility Commission. The new sections establish the requirements for rulemaking petitions; provide for public comment on petitions for rulemaking and other proposed rulemaking proceedings at the Commission; establish a schedule for written comments; reply comments, workshops, and public hearings, if applicable; provide for emergency rulemaking proceedings; and allow the use of informal information gathering in rulemaking proceedings. The following entities submitted comments in response to the May 7, 1993, Texas Register publication: Texas Statewide Telephone Cooperative, Inc.; AT&T Communications of the Southwest, Inc.; Southwestern Bell Telephone Company; GTE Southwest, Inc.; Contel of Texas; Sprint Communications Company, L.P.; Texas Telephone Association; Texas Utilities Electric Company; Texas Electric Cooperatives; Central Power and Light Company; Southwestern Electric Power Company; West Texas Utilities Company; Gulf States Utilities Company; Texas Ratepayers' Organization to Save Energy, Inc.; Southwestern Public Service Company; Houston Lighting and Power Company; and the Environmental Defense Fund. The comments generally supported the new sections but suggested various changes to the new sections. There were no comments in opposition to the new sections. One commenter suggested the need for definitions of the terms "rulemaking project" and "major amendment" as used in the new sections. The Commission disagrees. The distinction between a rulemaking project, which refers to activities prior to publication in the Texas Register, and a proposed rule, which refers to the rule as published in the Texas Register, is clear and need not be formalized in a definition. The determination of whether a rulemaking project concerns a major amendment will be made on a case by case basis by the Commission. One commenter suggested that the Commission publish in the Texas Register, the text of the rule proposed by a petition for rulemaking. The Commission disagrees. Publication in the miscellaneous documents section of the Texas Register is at the discretion of the Texas Register and is subject to a three- page limitation. Because of these restrictions, the Commission cannot require or guarantee publication of the text of the rule proposed by the petition. Several commenters requested that sec.22.281(a)(2) be revised so that the time period for submitting comments on a notice of petition for rulemaking is expanded from 14 days to as much as 30 days. One commenter suggested that sec.22.281(a) should be revised to require the Commission to publish a notice of each petition for rulemaking received by the Commission. The Commission agrees and has revised the section to require the Secretary of the Commission to publish a notice of each petition for rulemaking received by the Commission. Additionally the period for comments on a petition is expanded to three weeks following publication. One commenter suggested that sec.22.281(a)(3) should indicate that a petition will be deemed denied by operation of law if the Commission has not ruled on the petition within 60 days after its submission. The Commission disagrees. The Administrative Procedure Act requires the Commission to either deny the petition in writing, stating its reasons for the denial, or initiate rulemaking proceedings within 60 days after submission of the petition. The request for automatic rejection of petitions would not comply with this statutory requirement. One commenter suggested that sec.22.282(a) be revised to require publication of a notice of rulemaking project for all new rules and amendments. The Commission disagrees. Minor amendments or rules proposed in response to legislative directive, for example, may not require the additional comment period that the new sections allow. Further the limitations imposed by the Texas Register on publication in the miscellaneous documents section make it impractical to require publication for all rulemaking projects. Several commenters suggested that sec.22.282(a) should be revised to expand the time period available for workshops and/or public hearings. The Commission agrees and has expanded the time period to 45 days. Additionally, in response to other comments, the section and sec.22.282(d) have been revised to specify that the time period refers to the commencement or initiation of workshops and/or public hearings and does not require that the workshops and/or public hearings be completed within that time frame. One commenter suggested that sec.22.282(a) be revised to limit public comment at the Final Order Meeting to those persons who had previously filed comments in the project at least five days prior to the meeting. The Commission disagrees. Such a restriction would unnecessarily limit public participation in rulemaking proceedings. One commenter suggested that sec.22.282(c) be revised to require the Commission to provide mailed notice to all persons who have filed comments of any subsequent formal or informal Commission proceedings on a proposed rule. The Commission disagrees. However, the section is revised to require staff to notify all persons who filed comments of the filing of staff's initial or final recommendations. Commission action in proposing or adopting a rule is conducted in an open meeting for which appropriate notice is published in the Texas Register . The Commission feels that the section as revised provides sufficient notice to interested persons. One commenter suggested that a party filing comments should provide a summary list of recommended changes. While the Commission appreciates such a summary and finds it helpful, it should not be a required part of the comments. Such a requirement would serve to lengthen the comments received by repetition of arguments presented in the text. Commenters should feel free to respond in the form they feel is most effective. One commenter suggested that after publication of a notice of rulemaking project in the miscellaneous document section of the Texas Register, the staff should be required summary of all comments received, address each recommended change, prepare a written opinion as to whether the Commission should accept or reject each recommended change and provide a comprehensive statement of the rationale and supporting documentation for staff's recommendation. The Commission disagrees. Such an analysis is not required by the Administrative Procedure Act and should not be imposed to further complicate the rulemaking process. No purpose would be served by such an in depth analysis of initial proposals since interested persons will have additional opportunity to comment after a proposed rule is published in the Texas Register. One commenter suggested that parties to a workshop be required to provide a written summary of their position prior to the workshop and should be required to provide a summary of the substantive results of the workshop. The Commission disagrees. Such proposals could require parties to prematurely formulate a position on the rules. Further, requiring such input would only serve to inhibit public participation in the workshops. One commenter suggested that sec.22.282(b) should be revised to state specific criteria the Commission would employ in deciding whether to initiate a rulemaking proceeding. The Commission disagrees. It is not practical to establish specific criteria that will govern when the Commission will establish policy through rulemaking as opposed to ad hoc adjudication. The determination of whether a particular issue is suitable for resolution by rulemaking or adjudication and when the Commission will address the issue will continue to be made on a case-by-case basis. One commenter suggested that following publication of a proposed rule, staff should be required to prepare written summaries of all comments, provide a written opinion stating whether the Commission should accept or reject each change and include a specific statement of the rationale and documentation which served as the basis for staff's opinion. The commenter further suggested that staff's recommendations should be published in the Texas Register rather than merely filed in Central Records. The Commission disagrees. Staff's recommendation is merely a recommendation, it does not constitute final Commission action. The Commission order adopting the rule, if any, contains the information required by the Administrative Procedure Act ("APA") including a reasoned justification for the adoption of the rule and a response to comments received. There is no provision in APA requiring the preparation of the information requested and there is no need to further complicate or encumber the rulemaking process by creating such a requirement. There is no provision of APA requiring publication of staff recommendations so such publication could only be accomplished in the miscellaneous documents section of the Texas Register. As stated previously, the limitations imposed on such publications by the Texas Register make such requirement impractical. One commenter suggested that sec.22.282(d) should be revised to require the use of public hearings rather than workshops following the publication of a proposed rule. The Commission disagrees. The increased formality of a public hearing is not always required for a proposed rule and such a requirement could inhibit public participation in the rulemaking process. Two commenters suggested that sec.22.282(d) be revised to require a public hearing if requested by a public utility. The Commission disagrees. The Administrative Procedure Act only requires a public hearing in certain instances. There is no reason to expand that requirement to allow a single public utility to determine whether or not the Commission should conduct a public hearing on a proposed substantive rule. One commenter suggested that the provisions of sec.22.282(e) should be clarified to distinguish between initial and final staff recommendations. The Commission agrees and has clarified the section. Several commenters suggested that sec.22.282(e) be revised to require submission of staff's final recommendation at an earlier date and require staff to serve a copy of the recommendation on all persons who filed comments. The Commission disagrees. The current schedule allows only 15 days from receipt of reply comments to submission of staff's final recommendation. This amount of time is necessary to enable staff to consider all comments and it should not be reduced. Due to the amount of information presented in staff's final recommendation and the fact that some rulemaking proceedings generate comments from numerous interested persons, requiring staff to serve a copy of the final recommendation on all parties in all proceedings would create an undue burden on Commission resources. One commenter suggested that sec.22.282(e) should identify the criteria that staff may utilize in making its recommendations for Commission action. The Commission disagrees. Staff should not be limited in the matters it considers in reviewing comments and making recommendations to the Commissioners. It would not be possible to specify criteria that would be applicable to all subjects that arise in rulemaking proceedings before the Commission. Several commenters suggested that the prohibition on contact with Commissioners following submission of Staff's final recommendation be deleted from sec.22.282(f) or revised to allow individual Commissioners determine whether to allow such contact. The Commission agrees. Rather than prohibit all contact with Commissioners, the section has been revised to allow individual Commissioners to establish policies concerning any contact following the filing of Staff's final recommendation. One commenter suggested that sec.22.282(f) be revised to require notice to all interested persons if a Commissioner initiates contact with a party after the filing of staff's final recommendation. The Commission believes that such notice is not necessary. PURA, Texas Civil Statutes Article 1446c, sec.34(b), requires a record be maintained detailing any contacts between a public utility and the Commission. These records are available to the public and provide sufficient notice of contacts with the Commission. One commenter suggested that sec.22.284(a) be deleted since the Commission has inherent power to use informal conferences. The Commission agrees that it has this inherent power but believes that this provision should remain in the rule to provide notice to the public of the availability of this procedure in rulemaking proceedings. Two commenters suggested that sec.22.284(b) should be revised to require that any committee established must include specific entities such as General Counsel, Office of Public Utility Counsel or affected utilities. The Commission disagrees. Although the Commission will endeavor to ensure that non-employee committees represent a range of affected interests, the Commission cannot and should not require attendance by any person at these informal advisory committee meetings. Three commenters suggested that the new sections should be revised to specifically provide procedures for evidentiary rulemaking proceedings, or a separate rulemaking should be initiated to address this issue. The Commission believes that evidentiary rulemakings should not be addressed in this project because it raises new issues beyond the scope of the initially proposed rule. However, it would be appropriate to seek input from interested persons for the purpose of establishing a separate rulemaking project addressing the procedure for evidentiary rulemaking proceedings. 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, including rules governing practice and procedure before the Commission. Cross-index to statutes: Article 1446c, Government Code Section 2001.004. 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) Upon receipt of a petition for rulemaking, the secretary of the commission shall submit a notice for publication in the miscellaneous documents section of the Texas Register. The notice shall include a summary of the petition, the name of the individual, organization or entity that submitted the petition, and notification that a copy of the petition will be available for review and copying in the commission's central records. Comments on the petition shall be due three weeks from the date of publication of the notice. Failure to publish a notice of a petition for rulemaking in the Texas Register shall not invalidate any commission action on the petition for rulemaking. (3) 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) Initial Comments. Prior to publishing a proposed rule or initiating a major amendment to an existing rule, the commission may solicit comments on the need for a rule and potential scope of the rule by publication of a notice of rulemaking project in the miscellaneous documents section of the Texas Register. A notice filed pursuant to this section shall contain a brief description and statement of the intended objective of the proposed rule and indicate if a draft of the proposed rule is available for review by interested persons. Unless otherwise prescribed by the commission, any comments concerning the rulemaking project shall be due within 30 days from the date of publication of the notice. The commission may hold workshops and/or public hearings on the rulemaking project commencing at least 45 days but no later than 90 days from the date of publication of the notice. The notice of rulemaking project and time period for initial comments is not required for emergency rules adopted pursuant to sec.22.283 of this title (relating to Emergency Adoption); minor amendments of existing rules; or other rulemaking projects for which good cause exists to act immediately. (b) Notice. After consideration of initial comments or comments on a petition for rulemaking, if comments are solicited, the commission may initiate a rulemaking project by publishing notice of the proposed rule in accordance with APA, sec.5. (c) Public Comments. Prior to the adoption of any rule, the commission shall afford all interested persons reasonable opportunity to submit data, views, or arguments in writing. Written comments must be filed within 30 days of the date the proposed rule is published in the Texas Register unless the commission establishes a later date for submission of comments. The commission may also establish a schedule for reply comments if it determines that additional comments would be appropriate or helpful in reaching a decision on the proposed rule. (d) Public Hearing. If the commission determines from comments received that disputes remain as to the effect of the proposed rule or that additional information is needed, the commission may schedule workshops or public hearings on the proposed rule. 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. Any workshops and/or public hearings shall be initiated at least 60 days and no later than 90 days from the date of publication of the proposed rule. (e) Staff Recommendation. After reviewing written comments and/or testimony presented at a workshop or public hearing, staff shall submit an initial recommendation for commission action on the proposed rule within 120 days after the publication of the proposed rule. The initial staff recommendation shall be filed in central records at the same time it is submitted to the commission. Any interested person may file written comments in response to the initial staff recommendation within 15 days after the filing of the initial staff recommendation. Staff's final recommendation shall be submitted to the commission and filed in central records at least ten days prior to the date on which the commission is scheduled to consider the matter and not later than 150 days after the publication of the proposed rule. Staff will notify all persons who have filed comments concerning the proposed rule of the filing staff's initial and final recommendation. (f) Contact with Commissioners. After staff submits its final recommendation to the commissioners, contact with commissioners shall follow the policy developed by individual commissioners. (g) Final Adoption. During the Final Order Meeting at which the commission considers the proposed rule for final action, the commission shall allow interested persons to present oral comments in response to the staff's final recommendation. Following consideration of comments from staff and interested persons, the commission will issue an order adopting, adopting as amended, or withdrawing the rule within six months after the date of publication of the proposed rule or the rule is automatically withdrawn. sec.22.283. Emergency Adoption. Notwithstanding any other provision of these rules, 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. All of the requirements of APA, 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 rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 20, 1993. TRD-9329172 John M. Renfrow Secretary of the Commission Public Utility Commission of Texas Effective date: November 1, 1993 Proposal publication date: May 7, 1993 For further information, please call: (512) 458-0100 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 123. Respiratory Care Practitioner Certification 25 TAC sec.123.2, sec.123.10 The Texas Department of Health (department) adopts amendments to sec.123.2 and sec.123.10, concerning respiratory care practitioners. Section 123.2 is adopted with changes to the proposed text as published in the May 4, 1993, issue of the Texas Register (18 TexReg 2893). Section 123.10 is adopted without changes and will not be republished. The amendment adds a definition for the term, "formally trained," as used in sec.123.5(c)(5); and allows the department, with approval from the advisory board, to provide a list of agencies and organizations which may approve continuing education. The following comment was received regarding the proposed amendments. COMMENT. Concerning sec.123.2, one commentor was concerned about the use of the term "uniquely" to modify the word "qualified." RESPONSE. The Respiratory Care Practitioner Advisory Board considered the comment at the July 23, 1993, meeting and agreed to drop "uniquely" from subparagraph (C) of the definition. The amendments are adopted under the Health and Safety Code, sec.142.012, which provides the Texas Board of Health with the authority to adopt rules concerning respiratory care practitioners; and the Health and Safety Code, sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health. sec.123.2. Definitions. The following words and terms, when used in these sections, shall have the following meanings, unless the context clearly indicates otherwise. Formally trained -completion of an organized educational activity which: (A) includes supervised and directed instruction specific to the respiratory care procedures to be performed by the individual; (B) includes specific objectives, activities and an evaluation of competency; and (C) is supervised and directed by another individual qualified to provide the training and supervision. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 22, 1993. TRD-9329222 Susan K. Steeg General Counsel, Office of General Counsel Texas Department of Health Effective date: October 13, 1993 Proposal publication date: May 4, 1993 For further information, please call: (512) 458-7236 TITLE 31. NATURAL RESOURCES AND CONSERVATION Part II. Texas Parks and Wildlife Department Chapter 65. Wildlife Subchapter A. Statewide Hunting and Fishing Procalamation 31 TAC sec.sec.65.3, 65.9, 65.26, 65.27, 65.31, 65.40, 65.72 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held August 26, 1993, adopted amendments to sec.sec.65.3, 65.9, 65.27, 65. 31, 65.40, and 65.72, and new sec.65.26, concerning the Statewide Hunting and Fishing Proclamation. Sections 65.3, 65.9, 65.26, 65.27, 65.31, and 65.40 are adopted with changes to the proposed text as published in the July 23, and August 17, 1993, issues of the Texas Register (18 TexReg 4874 and 5523). Section 65.72 was adopted without changes and will not be republished. Proposed sec.6528 and sec.65.30 are being withdrawn. Text that was proposed for new sec.65.28 and sec.65.30 was combined in sec.65. 26. Elements of sec.65.28 and sec.65.30 were incorporated into sec.65.26. The combining of text is intended to clarify and place rules concerning taking of antlerless deer into one section rather than in three locations within the proclamation. New sec.65.26 proposed title was Wildlife Habitat and Harvest Annual Recommendation and was changed to Antlerless Deer Harvest Systems to reflect the three different harvest systems available to land managers. The rules are needed to correct errors in the proclamation, and provide additional means for land managers to prevent degradation of habitat caused by excessive numbers of antlerless white-tailed deer. The rules will provide additional means for taking antlerless white-tailed deer, clarify the three methods that land managers may choose to utilize for appropriate deer harvest, provide simplified enforcement of the rules, and correctly identify a county where Middle Yegua Creek is located. Comments were received from the public in eight counties during public hearings, and from letters and telephone calls to the department. The public made comments favoring the program by saying it will control deer herd numbers, prevent habitat degradation, and will help landowners with excessive deer populations control population growth. The public made statements against the proposed rules by commenting that how the program should not force landowners to accept public hunters and that the program would reduce hunter opportunity. Public hearings were held in eight counties during July to gain input from the public concerning the proposed rules. These comments are listed below. One person spoke at the Gillespie County hearing and supported the Department position on proposals. One person spoke at the Travis County hearing and opposed the proposed regulations. His reasons were: it often is not practical to get an adequate number of hunters to achieve harvest goal; the pilot program was not successful because of similar regulations; it was never proved that hunting opportunity would be eliminated; and it coerces landowners to contribute to the Big Game Awards Program. He also felt that it creates conflict with legislators and that the public will perceive the fee requirements as a Department ploy to make money. One person who spoke at the Travis County hearing and agreed with the need for antlerless deer control but wanted Operation Orphan to be used to harvest does. The person also suggested that Sportsmen's groups should initiate other programs to harvest the antlerless deer which would involve beginning hunters. Another person who spoke at the Travis County hearing wanted to see an opportunity for the public to hunt, addressing the Department's responsibility to ensure public access. One person spoke at the Tom Green County hearing and was not in favor because youth and the underprivileged would not have the opportunity to harvest deer under this system. One person spoke at the Angelina County hearing and questioned the high cost of the permit system. Another person who spoke at the Angelina County hearing asked about the number of options to take antlerless deer. A representative of the Texas Wildlife Association wrote a letter opposing the proposed rules because of public hunting provisions. One person also wrote a letter opposing the proposed rules because of public hunting provisions. Two persons spoke at the August 26, 1993, Parks and Wildlife Commission public hearing. Their comments follow. Both people representing the Texas Wildlife Association spoke in favor of the proposal at the Commission public hearing provided that hunting opportunity provisions were removed. The Antlerless Deer Control Permit program does not affect the doctrine that wildlife are a "common resource" held in trust by the state on behalf of all citizens. The regulatory control of wildlife in Texas remains with the department and with the Parks and Wildlife Commission because antlerless deer control permits will be issued by the department and in a manner conforming to department standards and guidelines for wildlife management plans. In addition, the actual number will be set by department biologists to obtain a desired biological condition. Harvest levels will be designed to bring populations into balance with the habitat's capability to support the deer herd. The program is not designed to alter sex ratios or decrease deer numbers to levels appropriate for intensive trophy management. Because promotion of new hunting opportunities limits the effectiveness of the program, provisions were deleted. Cost of the program covers Departmental costs. The new section and amendments are adopted under the Texas Parks and Wildlife Code, Chapter 61, which provides the Texas Parks and Wildlife Commission with authority to establish wildlife resource regulations including seasons, bag limits, means, methods for this state, and specifically with respect to sec.61.057, to issue permits for the taking of antlerless white-tailed deer, and the Texas Parks and Wildlife Code, sec.11.027 relating to the authority to charge for permits. sec.65.3. Definitions. The following words and terms, when used in this subchapter, shall have the following meaning, unless the context clearly indicates otherwise. Agent-A person who is named in the application for antlerless permits or antlerless deer control permits by the landowner to act on behalf of the landowner for purposes of the wildlife management plan, LAMPS recommendation, or wildlife habitat and harvest annual recommendation. Antlerless Deer Permit-A permit issued by the department under the provisions of a Wildlife Habitat and Harvest Annual Recommendation that allows the taking of one antlerless deer. Antlerless Deer Control Permit-A permit that when attached to an antlerless white-tailed deer legally harvested under a wildlife management plan allows the carcass to be possessed without the hunting license antlerless white-tailed deer tag attached. LAMPS Annual Recommendation-An evaluation of the deer population and deer habitat on a tract of land derived by data collected by the landowner, provided to the department on a LAMPS application or LAMPS hunter harvest form, and reviewed by the department to determine an allowable issuance of LAMPS antlerless deer permits. LAMPS Antlerless Deer Permit-A permit issued by the department under the provisions of a LAMPS annual recommendation that allows the taking of one antlerless deer. Wildlife Habitat and Harvest Annual Recommendation -A written document provided to the landowner or landowner's agent and approved by a department biologist after an on-site evaluation is made of the deer population and deer habitat on a tract of land. Wildlife Management Plan-A written document provided to the landowner or landowner's agent and approved by a department biologist of at least a CS-VI level following an evaluation of wildlife habitat and populations. sec.65.9. Open Seasons: General Rules. (a)-(l) (No change.) (m) A person may give, leave, receive, or possess any species of legally taken wildlife resource, or a part of the resource, that is required to have a tag or permit attached or is protected by a bag or possession limit, if the carcass or a part of a carcass is tagged with a hunter's document by the person who killed or caught the wildlife resource, except a hunter's document is not required for a complete carcass of an antlerless white-tailed deer if an Antlerless Deer Control Permit is attached. The hunter's document shall accompany the carcass or a part of the carcass until reaching final destination and the document must contain the following information: (1) -(5) (No change.) sec.65.26. Antlerless Deer Harvest Systems. Antlerless Deer Harvest Systems, previously entitled Deer Management Plan and Required Permits, and previous to that, Wildlife Management Plans, as it relates to sec.65.40 of this title (relating to Deer: White-tailed and Mule Deer), are the three antlerless deer harvest and permitting systems as provided in this section. (1) Wildlife Habitat and Harvest Annual Recommendation. (A) A Wildlife Habitat and Harvest Annual Recommendation, (see sec.65.3 of this title (relating to Definitions)) shall include: (i) measurements of density, production, and sex composition of the deer population present on the property; (ii) measurements of the number, sex, and where possible, age of the deer harvested from the property; (iii) evaluation and appraisal of habitats determined by Texas Parks and Wildlife Department to be of significance to white-tailed deer; (iv) the number of hunters on the property and the number of days that they hunted; and (v) descriptions of land management practices occurring on the property. (B) A Wildlife Habitat and Harvest Annual Recommendation shall specify the number of antlered and/or antlerless deer to be harvested from a given tract of land. (C) A Wildlife Habitat and Harvest Annual Recommendation, except under the provisions of subparagraphs (E) and (F) of this section, shall require each antlerless deer taken to be tagged with an antlerless deer permit that is issued by the landowner. (D) A Wildlife Habitat and Harvest Annual Recommendation will not be valid without the signature of a wildlife branch staff member indicating the recommendation has been approved. Wildlife Habitat and Harvest Annual Recommendations shall be valid for one year following the date of signature by the wildlife branch staff member. (E) No antlerless mule deer or white-tailed deer permit is required for a deer legally killed with longbow and arrow during the archery-only open season (see sec.65.40(2) and (4)). (F) No antlerless deer permit is required for deer legally taken during white- tailed deer general open seasons (see sec.65.40(1) and (3)) and the Special (South Texas) late season, when regulations provide that antlerless white-tailed deer may be taken for the entire general open season without an antlerless deer permit. (G) All deer taken under a Wildlife Habitat and Harvest Annual Recommendation must be tagged with the appropriate tag from a valid hunting license. (H) The bag limit for hunters on a property under a Wildlife Habitat and Harvest Annual Recommendation shall be the same as established by the Commission for the county or counties in which the property lies. (I) It is unlawful to falsify ownership of land or amount of acreage owned or leased when applying for antlerless deer permits. (J) It is unlawful for a landowner or landowner's agent to issue an antlerless deer permit to a hunter to hunt on a tract of land other than the designated tract for which the permit was issued. (K) The landowners or landowner's agents shall issue permits to individual hunters before the hunter begins his hunt on the designated tract of land. (L) It is unlawful for a hunter to use an antlerless deer permit on a tract of land other than the designated tract for which the permit was issued. (M) The antlerless deer permit must be immediately filled out in a legible manner and attached to each antlerless deer taken, and shall remain attached until the carcass has reached its final destination and has been finally processed. (N) The antlerless deer permit will not be valid unless the date of kill, the hunters name, and the signature of the owner or agent on whose tract the deer was killed are legibly printed on the permit. (2) Landowner Assisted Management Permit System (LAMPS). (A) A LAMPS annual recommendation, (see sec.65.3) shall include: (i) estimates of deer density, production, and sex composition of the deer population present on the property; (ii) estimates of the number, sex, and where possible, age of the deer harvested from the property; (iii) a listing of acreages of habitats determined by Texas Parks and Wildlife Department to be of significance to white-tailed deer; (iv) the number of hunters on the property and the number of days that they hunted; and (v) descriptions of land management practices occurring on the property. (B) A LAMPS annual recommendation shall specify the number of antlerless deer to be harvested from a given tract of land. (C) A LAMPS annual recommendation, except as provided in subparagraph (D) of this section, shall require each antlerless deer taken to be tagged with a LAMPS antlerless deer permit. (D) No LAMPS antlerless deer permit is required for a deer legally killed with longbow and arrow during the archery only open season (see sec.65.40(2) and (4)) . (E) No LAMPS antlerless deer permit is valid unless it has been issued, used, and possessed in accordance with this section. (F) All deer taken under a LAMPS annual recommendation must be tagged immediately upon kill with the appropriate hunting license tag and the LAMPS antlerless deer permit; and both shall remain attached until the carcass has reached its final destination and has been finally processed. (G) The bag limit for individual hunters on a property under LAMPS will be the same as established by the Commission for the county or counties in which the property lies. (H) It is unlawful to falsify ownership of land or amount of acreage owned or leased when applying for LAMPS antlerless deer permits. (I) It is unlawful for a landowner or landowner's agent to issue a LAMPS antlerless deer permit to a hunter to hunt on a tract of land other than the designated tract for which the permit was issued. (J) The landowners or landowner's agents shall issue permits to individual hunters before the hunter begins his hunt on the designated tract. (K) It is unlawful for a hunter to use a LAMPS antlerless deer permit on a tract of land other than the designated tract for which the permit was issued. (L) The LAMPS antlerless deer permit will not be valid unless the date of kill, the hunters name, and the signature of the owner or agent on whose land the deer was killed are legibly printed on the permit. (M) A LAMPS antlerless deer permit may not be issued when the total contiguous acreage described in the application is less than 200 acres. (3) Wildlife Management Plan and Antlerless Deer Control Permits. (A) A Wildlife Management Plan, (see sec.65.3) shall include: (i) measurements of density, production, and sex composition of the deer population present on the property; and (ii) an evaluation and appraisal of carrying capacity of habitats determined by Texas Parks and Wildlife Department to be of significance to white-tailed deer and the threat of damage to deer habitat resulting from overpopulation of deer. (B) A Wildlife Management Plan will not be valid without the signature of a wildlife branch staff member indicating the plan has been reviewed and approved. Approved Wildlife Management Plans shall be valid for not more than one year following the date of signature by the wildlife branch staff member. (C) Antlerless deer control permit(s) shall be issued to a landowner or landowner's agent designated on the application form for any parcel of land in any county of Texas shown to be threatened by overpopulation of deer. (D) An antlerless deer control permit shall allow the taking of one antlerless white-tailed deer. (E) Antlerless deer control permit(s) shall be issued only to the landowner or the landowner's agent. (i) The antlerless deer control permit(s) shall be issued only after the landowner or landowner's agent has made application for such permit(s) to the department on a form prescribed by the department. The antlerless deer control permit application shall require, in part, the name, address and hunting license number of all agents who will be hunting antlerless white-tailed deer for control purposes under the wildlife management plan. The maximum number of agents allowed on one application for antlerless deer control permits shall not exceed one-tenth of the number of antlerless deer recommended by the Wildlife Management Plan for harvest. The application shall not be accepted as complete without a department-approved Wildlife Management Plan. For the application to be considered, the wildlife management plan must recommend an antlerless harvest of greater than 20 antlerless deer and must be approved by a Texas Parks and Wildlife Department (TPWD) biologist classified not less than CS-VI. Wildlife Management Plans shall be subject to departmental standards and guidelines. (ii) The number of antlerless deer control permits to be issued shall be specified in the deer management plan following scientific studies that determine the number of antlerless deer to be harvested to lower the population in order to keep the population prudently within the carrying capacity of the habitat, thereby preventing overuse of habitat by deer. The antlerless deer control permit allocation may not be used as a means to solely alter sex ratios of deer herd on the managed property. (iii) The antlerless deer control permit(s) shall be issued only after the landowner or landowner's agent has paid to the department fees equaling $300. (F) The antlerless white-tailed deer bag limit for the landowner or landowner's agent of the property described in the Wildlife Management Plan shall not exceed 300 antlerless white-tailed deer. (G) The antlerless deer control permit shall be valid only during a lawful open deer season during a year beginning on September 1 of one year through August 31 of the following year within which the permits are issued, and during legal shooting hours as prescribed in sec.65.40 of this title (relating to Deer: White-tailed and Mule Deer) and Texas Parks and Wildlife Code, sec.62. 004 (relating to Hunting at Night). (H) Deer taken with an antlerless deer control permit shall be taken only from the property described in the Wildlife Management Plan. (I) All edible parts of a deer taken under this section shall be kept in an edible condition in compliance with Texas Parks and Wildlife Code, sec.62.011 (relating to Retrieval and Waste of Game). (J) No person may possess the carcass of an antlerless white-tailed deer taken under a wildlife management plan at any time before the carcass has been finally processed and delivered to the final destination, unless there is attached to the carcass a properly executed antlerless deer control permit or a valid hunting license tag. (K) It is unlawful to falsify ownership of land or amount of acreage owned or leased when applying for antlerless deer control permits. (L) It is unlawful for any person to use an antlerless deer control permit on a tract of land other than the designated tract for which the permit was issued. (M) The antlerless deer control permit shall be filled out in a legible manner and immediately attached to the carcass upon kill and shall remain attached to the carcass until the carcass has been delivered to its final destination and is finally processed. No other tag shall be required to be attached to the carcass (see Texas Parks and Wildlife Code, sec.42.018(c)). (N) The antlerless deer control permit will not be valid unless the following information is legibly written in the proper places on it: (i) date of kill; (ii) the agent's name, address, and hunting license number; (iii) the landowners name, landowner's ranch name, and location of the ranch; and (iv) the signature of the owner or agent on whose tract the deer was killed, verifying that the permit was used in compliance with departmental regulations. (O) An antlerless deer control permit harvest report form provided by the department shall be submitted to the department by the landowner or landowner's agent not later than the 14th day of February following the kill or of the year of issue and must contain the sex and date of kill for each deer tagged with a antlerless deer control permit and the name, address, telephone number, and hunting license number of the landowner or landowner's agent. sec.65.27. Permits. (a) Except as may be otherwise provided in these rules, no person may hunt antlerless mule deer, pronghorn antelope, elk, or antlerless white-tailed deer in areas where permits are prescribed unless he first procures a valid permit issued by the landowner. No additional antlerless deer permit is required for antlerless white-tailed deer except as specifically provided for in these rules. (b) It is unlawful to use an antlerless mule deer, antelope, elk, or antlerless white-tailed deer permit on more than one antlerless mule-deer, antelope, elk or antlerless white-tailed deer. (c) (No change.) (d) No permit is valid unless it has been issued, used, and possessed strictly in accordance with this section; sec.65.26 of this title (relating to Antlerless Deer Harvest Systems); sec.65.29 of this title (relating to Antelope Permits), sec.65.31 of this title (relating to Antlerless Mule Deer Permits and White- tailed Deer Permits); and sec.65.33 of this title (relating to Elk Permits). sec.65.31. Antlerless Mule Deer and White-tailed Deer Permits. (a) In all counties where antlerless mule deer or white-tailed deer are to be harvested, the department shall issue antlerless mule deer or white-tailed deer hunting permits, except where subsections (h) and (i) of this section apply, for designated tracts of land only to the landowners or their agents only after the owners or agents have applied in writing for the exact number of permits to be used on the designated tracts. (b) It is unlawful to falsify ownership of land or amount of acreage owned or leased when applying for antlerless mule deer or white-tailed deer hunting permits. (c) It is unlawful for a landowner or landowner's agent to issue an antlerless mule deer or white-tailed deer hunting permit to a hunter to hunt on a tract of land other than the designated tract for which the permit was issued. (d) The owners or agents shall then issue permits to individual hunters before the hunter begins his hunt on the designated tracts. (e) It is unlawful for a person to possess an antlerless mule deer, unless the person has been issued an antlerless mule deer hunting permit on which appear: (1)-(3) (No change.) (f) It is unlawful for a hunter to use an antlerless mule deer or white-tailed deer hunting permit on a tract of land other than the designated tract for which the permit was issued. (g) The permit must be attached to each antlerless mule deer or white-tailed deer taken, and shall remain attached until the deer has reached its final destination as defined in the Texas Parks and Wildlife Code, sec.42. 001(4). (h) No antlerless mule deer or white-tailed deer hunting permit is required for a deer legally killed with longbow and arrow during the archery-only open season (see sec.65.40(2) and (4) of this title (relating to Deer: White-tailed and Mule Deer)), when bag limits are designated as either sex. (i) No antlerless mule deer or white-tailed deer hunting permit is required for deer legally taken during white-tailed deer and mule deer general open season (see sec.65.40(3)), when regulations provide that antlerless mule deer or white-tailed deer may be taken without an antlerless deer permit. sec.65.40. Deer: White-tailed and Mule Deer. No person, may take more than the aggregate total of six deer per license year; of which no more than two may be mule deer, only one of which may be a buck mule deer; no more than three white- tailed buck deer, or no more than six antlerless deer, both species combined. (1) White-tailed deer: general open seasons, bag, and possession limits shall be as follows. (A)-(C) (No change.) (D) No person may take or possess more than one white-tailed buck deer per license year from counties, in the aggregate, listed within this subparagraph. (i)-(ii) (No change.) (iii) In Fisher (west of State Highway 70), Hemphill, Hood, Jack, Karnes, Kent (south of U.S. Highway 380), Parker (west of FM 51 and State Highway 171), Scurry, Somervell, Wheeler, Wilson, and Young Counties, there is an open season for white-tailed deer. (I)-(III) (No change.) (iv) (No change.) (v) In Anderson, Armstrong, Austin, Bastrop, Borden, Bowie, Brazos, Briscoe, Burleson, Caldwell, Camp, Carson, Cass, Chambers, Cherokee, Childress, Collingsworth, Colorado, Cottle, Crane, Crosby, Delta, De Witt, Dickens, Donley, Ector, Ellis, Falls, Fannin, Fayette, Fisher (east of State Highway 70) , Floyd, Foard, Franklin, Freestone, Garza, Goliad (north of U.S. Highway 59), Gonzales, Gray, Gregg, Grimes, Guadalupe, Hall, Hardeman, Harris, Harrison, Haskell, Hopkins, Houston, Hutchinson, Jackson (north of U.S. Highway 59), Jefferson, Jones, Kent (north of U.S. Highway 380), King, Knox, Lamar, Lavaca, Lee, Leon, Liberty (only west of the Trinity River and south of U.S. Highway 90), Limestone, Lipscomb, Loving, Madison, Marion, Midland, Milam, Montgomery, Morris, Motley, Navarro, Ochiltree, Orange, Rains, Randall, Red River, Roberts, Robertson, San Jacinto, Smith, Stonewall, Swisher, Titus, Trinity, Upshur, Upton (north of U.S. Highway 67 and west of State Highway 349), Van Zandt, Victoria (north of U.S. Highway 59), Walker, Waller, Ward, Washington, Wharton (north of U.S. Highway 59), Wichita, Wilbarger, and Wood Counties, there is an open season for buck white-tailed deer only, except that antlerless deer may be taken only by the antlerless permit authorized by a Deer Management Plan (see sec.65.26 of this title (relating to Deer Management Plan)). (I) -(III) (No change.) (vi)-(viii) (No change.) (E) (No change.) (2)-(3) (No change.) (4) Mule deer: archery-only open seasons, bag, and possession limits shall be as follows. (A) In Armstrong, Borden, Briscoe, Carson, Childress, Cottle, Crane, Crockett, Crosby, Dallam, Deaf Smith, Dickens, Donley, Ector, El Paso, Fisher, Floyd, Garza, Gray, Hall, Hartley, Hemphill, Hutchinson, Jeff Davis, Kent, King, Loving, Midland, Moore, Motley, Ochiltree, Oldham, Potter, Randall, Reagan, Reeves, Roberts, Scurry, Stonewall, Swisher, Upton, Val Verde, Ward, and Winkler Counties, there is an open season during which mule deer may be taken only with longbow and arrows. (i) Open season: October 1-31. (ii) (No change.) (B) In Brewster, Culberson, Hudspeth, Pecos, Presidio, and Terrell Counties, there is an open season during which mule deer may be taken only with longbow and arrows. (i) Open season: October 1-31. (ii) (No change.) (C)-(D) (No change.) (5) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 17, 1993. TRD-9329103 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: October 11, 1993 Proposal publication date: July 23, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4433 or (512) 389- 4433 31 TAC sec.65.26, sec.65.30 The Texas Parks and Wildlife Commission in a regularly scheduled public hearing held August 26, 1993, adopted the repeal of sec.65.26 and sec.65.30, concerning white-tailed deer herd management tag, a section of the Statewide Hunting and Fishing Proclamation. The repeal was adopted without changes to the proposed text as published in the July 23, 1993, issue of the Texas Register (18 TexReg 4856). Repealed sec.65.26 is entitled Deer Management Plan and Required Permits. The section was repealed to allow a new rule entitled Wildlife Habitat and Harvest Annual Recommendation (adopted revised title is: Antlerless Deer Harvest Systems) to be proposed. The repeal of sec.65.30 permits allocation of this section in the future, as sec.65.30 has expired under its own terms as of February 28, 1993. The repeal finalizes the expiration of the rules. The repeal of sec.65.26 permits new text to be placed in this section, and repeal of sec.65.30 conforms with intent of the regulation, which expired February 28, 1993 under its own terms. No comments were received regarding repeal of the sections. The repeals are adopted under the Texas Parks and Wildlife Code, Chapter 61, which provides the Texas Parks and Wildlife Commission with authority to establish wildlife resource regulations including seasons, bag limits, means, methods for this state. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on September 17, 1993. TRD-9329104 Paul M. Shinkawa Director, Legal Services Texas Parks and Wildlife Department Effective date: October 11, 1993 Proposal publication date: July 23, 1993 For further information, please call: 1 (800) 792-1112, Ext. 4433 or (512) 389- 4433 Texas Department of Insurance Exempt Filing ____________________ Notification Pursuant to the Insurance Code, Chapter 5, Subchapter L (Editor's Note: As required by the Insurance Code, Article 5.96 and 5. 97, the Texas Register publishes notices of actions taken by the State Board of Insurance pursuant to Chapter 5, Subchapter L, of the Code. Board action taken under these articles is not subject to the Administrative Procedure and Texas Register Act. These actions become effective 15 days after the date of publication or on a later specified date. The text of the material being adopted will not be published, but may be examined in the offices of the State Board of Insurance, 333 Guadalupe, Austin. ) The State Board of Insurance of the Texas Department of Insurance at a public hearing under Docket Number 1996, at 9:00 a.m. May 27, 1993, continued at 9:00 a.m. on June 11, 1993, continued at 9:00 a.m. on July 14, 1993 and continued at 1:30 p.m. on August 25, 1993, in Room 100 of the Texas Department of Insurance Building, 333 Guadalupe Street in Austin, adopted one of the options set forth in a proposal filed by the staff of the Workers' Compensation Division of the Texas Department of Insurance concerning a revision to the experience rating plan. The staff proposed that the experience rating plan be revised in accordance with one of the four options presented in the 1993 Review of Workers' Compensation Rating Procedures as prepared by Dr. Mark Crawshaw, consulting actuary for the firm of Wakely and Associates, Atlanta, Georgia. The four options were proposed in a petition (Reference Number W-0493-07) filed by the staff on April 15, 1993, and summarized in the April 27, 1993, issue of the Texas Register (18 TexReg 2817). According to the staff's petition, the following four options were presented to the State Board of Insurance for consideration: (1) Update the current plan to reflect prevailing cost levels by making changes to the expected loss rates and "D" ratios found in the experience rating plan manual. This option involves no fundamental change to the current experience rating plan used in Texas. (2) Revise the current plan to be consistent with the experience rating plan used in most other states. This option makes changes to the current definition of primary and excess losses and revisions to the current definition of primary and excess losses and revisions to the expected loss rates, "D" ratios and "W" and "B" values found in the experience rating plan manual. This option increases the credibility given the actual experience of small and medium sized employers in the experience rating process. At the same time, it decreases the credibility given the actual experience of the large employers in the experience rating process. As a consequence, some large employers with good experience would receive a substantial increase in their experience modifier, while other large employers with poor experience would receive a large decrease in their experience modifier. (3) Similar to Option 2, except credibility of the experience of large employers is increased. However, it decreases the compatibility of the Texas experience rating plan with the plans used in most other states. (4) Similar to Option 2, except that large employers are not eligible for experience rating by Texas Department of Insurance. This option allows for the consideration of the impact of prior experience to be subject to negotiation between individual large employers and insurers. Options 2, 3, and 4 as proposed would include a capping procedure that places an upper limit on the maximum experience modifier for a small employer that barely qualifies for experience rating. In addition, Options 2, 3, and 4 as proposed provide for small employers with claims free experience that barely qualify for experience rating to receive a credit comparable to the maximum 15% credit available to employers too small to qualify for experience rating pursuant to Article 5.55 of the Texas Insurance Code. The proposal recommends that the current three-year period continue to be used in calculating experience modifiers. Subject to limitations discussed in the proposal, it would be feasible to implement a plan that uses a shorter experience period or that gives greater weight to the most recent experience period if the Board determines this would be desirable. For experience rating purposes, the proposal recommends that employers be classified as either small, medium or large according tot he amount of expected losses in the experience modifier calculations. This division and the approximate corresponding ranges of annual premium (for employers with reasonably stable payrolls) are as follows: [graphic] The staff reviewed the transcript of the December 1991, hearings before the Board concerning workers' compensation deductibles in order to determine if the experience rating plan should be adjusted to use net losses rather than gross losses in calculating an experience modifier for an insured with a deductible. The staff recommended to the Board that no adjustments be made at this time. The staff proposed an amendment to Section IV - Application of Experience Modification of the Texas Experience Rating Plan Manual to allow the experience modifier calculated by the Texas Department of Insurance to be reduced by the insurance company for use in calculating the insured's workers' compensation premium for such reasons as an improved loss ratio and/or improved safety programs. The Board did not adopt this amended rule as presented by staff. The State Board of Insurance has jurisdiction over this matter pursuant to the Insurance Code, Articles 5.60 and 5.96. The Board adopted Option 3 of the staff's recommendations, which retains the current formula for calculating experience modifiers but adjusts definitions and the tables used in calculating experience modifiers to reflect current cost levels. The experience rating formula plus the Table I - Primary Rating Values of Actual Loss, Table II - Expected Loss Rates and Discount Ratios and Table III - Weighting Values and Ballast Values as adopted by the State Board of Insurance is incorporated by reference by Board Order Number 60493. This notification is made pursuant to the Insurance Code, Article 5.96, which exempts it from the requirements of the Administrative and Texas Register Act. Issued in Austin, Texas, on September 21, 1993. TRD-9329150 Linda K. von Quintus-Dorn Chief Clerk Texas Department of Insurance Effective date: January 1, 1994 For further information, please call: (512) 463-6328