82R11830 RWG-D
	By: Solomons	H.B. No. 2133

	A BILL TO BE ENTITLED
	AN ACT
	relating to the Public Utility Commission of Texas' authority to
	disgorge revenue obtained as a result of certain violations;
	providing an administrative penalty.
	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
	SECTION 1.  The heading to Section 15.023, Utilities Code,
	is amended to read as follows:
	Sec. 15.023.  ADMINISTRATIVE PENALTY OR DISGORGEMENT ORDER.
	SECTION 2.  Section 15.023, Utilities Code, is amended by
	adding Subsection (e) to read as follows:
	(e)  For a violation of Section 39.157, the commission shall,
	in addition to the assessment of a penalty, order disgorgement of
	all revenues resulting from the violation. For any other violation
	of the statutes, rules, or protocols relating to wholesale electric
	markets, the commission may, in addition to the assessment of a
	penalty, order disgorgement of all revenues resulting from the
	violation.
	SECTION 3.  Section 15.025, Utilities Code, is amended by
	adding Subsections (e) and (f) to read as follows:
	(e)  Any revenues ordered disgorged under this section for a
	violation of the statutes, rules, or protocols relating to
	wholesale electric markets shall be returned to the affected
	wholesale electric market participants to be used to reduce costs
	or fees incurred by retail electric customers. The commission
	shall adopt rules not later than March 1, 2012, to prescribe how
	revenues shall be returned to the affected wholesale electric
	market participants under this subsection.
	(f)  For purposes of this section and Section 15.026, a
	reference to a penalty shall be construed to include disgorgement.
	SECTION 4.  Sections 15.026(a) and (b), Utilities Code, are
	amended to read as follows:
	(a)  Judicial review of a commission order imposing an
	administrative penalty or disgorgement is:
	(1)  instituted by filing a petition as provided by
	Subchapter G, Chapter 2001, Government Code; and
	(2)  under the substantial evidence rule.
	(b)  If the court sustains the occurrence of the violation,
	the court may uphold or reduce the amount of the penalty or
	disgorgement and order the person to pay the full or reduced amount
	of the penalty or disgorgement. If the court does not sustain the
	occurrence of the violation, the court shall order that no penalty
	or disgorgement is owed.
	SECTION 5.  Section 39.157(a), Utilities Code, is amended to
	read as follows:
	(a)  The commission shall monitor market power associated
	with the generation, transmission, distribution, and sale of
	electricity in this state. On a finding that market power abuses or
	other violations of this section are occurring, the commission
	shall require reasonable mitigation of the market power by ordering
	the construction of additional transmission or distribution
	facilities, by seeking an injunction or civil penalties as
	necessary to eliminate or to remedy the market power abuse or
	violation as authorized by Chapter 15, by imposing an
	administrative penalty as authorized by Chapter 15, by ordering the
	disgorgement of revenues as authorized by Chapter 15, or by
	suspending, revoking, or amending a certificate or registration as
	authorized by Section 39.356. Section 15.024(c) does not apply to
	an administrative penalty imposed under this section. For purposes
	of this subchapter, market power abuses are practices by persons
	possessing market power that are unreasonably discriminatory or
	tend to unreasonably restrict, impair, or reduce the level of
	competition, including practices that tie unregulated products or
	services to regulated products or services or unreasonably
	discriminate in the provision of regulated services. For purposes
	of this section, "market power abuses" include predatory pricing,
	withholding of production, precluding entry, and collusion. A
	violation of the code of conduct provided by Subsection (d) that
	materially impairs the ability of a person to compete in a
	competitive market shall be deemed to be an abuse of market power.
	The possession of a high market share in a market open to
	competition may not, of itself, be deemed to be an abuse of market
	power; however, this sentence shall not affect the application of
	state and federal antitrust laws.
	SECTION 6.  The changes in law made by this Act apply only to
	a violation that occurs on or after the effective date of this Act.
	A violation that occurs before the effective date of this Act is
	covered by the law in effect at the time the violation occurred, and
	the former law is continued in effect for that purpose.
	SECTION 7.  This Act takes effect September 1, 2011.