(a) Application. This section is applicable to electric
utilities, transmission and distribution utilities, power generation
companies, retail electric providers, municipally owned utilities,
electric cooperatives, the independent system operator, and any other
person regulated under the Public Utility Regulatory Act (PURA) Subtitle
B, collectively referred to as "market participants," and shall refer
to the definitions provided in PURA §11.003 and §31.002.
(b) Authority to issue order. The commission or the
executive director, who has been authorized pursuant to subsection
(c) of this section, may issue a cease and desist order if the commission
or executive director determines that the alleged conduct of a market
participant meets one or more of the following conditions:
(1) The conduct poses a threat to continuous and adequate
electric service;
(2) The conduct is hazardous;
(3) The conduct creates an immediate danger to the
public safety; or
(4) The conduct is causing or can be reasonably expected
to cause an immediate injury to a customer of electric services and
that the injury is incapable of being repaired or rectified by monetary
compensation.
(c) Delegation of authority. The commission may delegate
the authority to issue a cease and desist order to the executive director.
The authority to issue a cease and desist order shall be delegated
at an open meeting and may remain in effect for up to two years.
(d) Procedure. The commission must provide notice and
opportunity for a hearing before issuing a cease and desist order
if such notice is practicable. If such notice is not practicable,
the commission may issue a cease and desist order without providing
notice and opportunity for a hearing.
(1) If notice and opportunity for a hearing is practicable.
If notice and opportunity for a hearing is practicable, the commission
shall follow these procedures:
(A) Notice and Opportunity for Hearing. The commission
shall provide notice and opportunity for hearing pursuant to Chapter
2001, Texas Government Code. The notice shall include a description
of the violation(s) of PURA or this chapter that the market participant's
conduct is alleged to violate and specific facts that support each
allegation as reasonably believed by commission staff and a proposed
order that contains a statement of the charges. Notice of a proposed
order shall be given not later than the 10th day before the date set
for a hearing.
(B) Hearing. A hearing on a cease and desist order
is a contested case under Chapter 2001, Texas Government Code. The
commission may hold a hearing on a cease and desist order or may refer
the case to be heard by the State Office of Administrative Hearings.
(C) Service of Cease and Desist Order. If, after notice
and opportunity for a hearing, the commission issues a cease and desist
order, then the commission shall serve the cease and desist order
by registered or certified mail, return receipt requested, to the
market participant's last known address. A cease and desist order
is effective upon the earlier of receipt of actual notice or three
days after the order is mailed.
(D) Content of Cease and Desist Order. A cease and
desist order shall be served upon the market participant affected
by that order and shall:
(i) Contain a statement of the charges and a description
of the alleged violation(s) of PURA or this chapter that the market
participant's conduct has been found to have violated and specific
facts that support each violation; and
(ii) Require the market participant immediately to
cease and desist from the acts, methods, or practices stated in the
order.
(2) Notice and opportunity for a hearing not practicable.
If notice and opportunity for a hearing is not practicable, the commission
shall follow these procedures:
(A) Contents of order. A cease and desist order shall
be served upon the market participant affected by that order and shall:
(i) Contain a statement of the charges and a description
of the alleged violation(s) of PURA or this chapter that the market
participant's conduct has been found to have violated and specific
facts that support each violation as reasonably believed by commission
staff;
(ii) Require the market participant immediately to
cease and desist from the acts, methods, or practices stated in the
order;
(iii) Notify the market participant that a request
for a hearing to affirm, modify, or set aside the order must be submitted
not later than the 30th day after the date the market participant
receives the order; and
(iv) Contain a statement indicating that notice and
an opportunity for a hearing was not practicable and state the specific
reasons why notice and an opportunity for a hearing was not practicable.
(B) Service. Chapter 2001, Texas Government Code, does
not apply to the issuance of a cease and desist order issued by the
commission when notice and an opportunity for a hearing is not practicable.
(i) The commission shall serve the cease and desist
order by registered or certified mail, return receipt requested, to
the market participant's last known address.
(ii) A cease and desist order is effective upon the
earlier of receipt of actual notice or three days after the order
is mailed.
(C) Hearing Requested. The market participant affected
by the cease and desist order may request a hearing to affirm, modify,
or set aside the order. A request must be submitted not later than
the 30th day after the date the market participant receives the order.
(i) If the market participant affected by a cease and
desist order requests a hearing, the commission shall set the hearing
date not later than the 10th day after the date the commission receives
a request for a hearing or agreed to by the market participant and
the commission.
(I) A hearing conducted after the issuance of a cease
and desist order is a contested case under Chapter 2001, Texas Government
Code. The commission may hold a hearing on a cease and desist order
or may refer the case to be heard by the State Office of Administrative
Hearings.
(II) Pending a hearing on a cease and desist order,
the cease and desist order continues in effect unless stayed by the
commission.
(III) At or following the hearing, the commission shall
wholly or partly affirm, modify, or set aside the cease and desist
order.
(ii) If the market participant affected by a cease
and desist order does not request a hearing and the commission does
not hold a hearing on the order, the order is affirmed without further
action by the commission.
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