| (a) Prefiling 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 according 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 prefiled testimony schedule in a major 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 §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 commission staff representing the public interest
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) For electric and telecommunication rate proceedings,
the presiding officer shall establish a prefiled testimony schedule
for PURA chapter 36, subchapter D or chapter 53, subchapter D rate
cases and for cases other than major rate proceedings. In proceedings
that are not major rate proceedings, 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) For all water and sewer matters filed under TWC
chapters 12 or 13, the presiding officer shall establish a prefiled
testimony schedule. 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.
(9) Utilities filing an application for construction
of a transmission facility that has been designated by the Electric
Reliability Council of Texas (ERCOT) independent system operator as
critical to the reliability of the ERCOT system and to be considered
on an expedited basis, shall file written testimony and exhibits supporting
its direct case on the same date that the application is filed with
the commission. This requirement shall also apply to transmission
lines located in other reliability councils or administered by other
independent system operators provided such councils have a process
for designation of critical transmission lines.
(10) The times for prefiling set out in this section
may be modified upon a showing of good cause.
(11) 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 §22.71 of this title (relating to Filing
of Pleadings, Documents 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.
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| Source Note: The provisions of this §22.225 adopted to be effective November 1, 1993, 18 TexReg 6641; amended to be effective September 8, 1995, 20 TexReg 6627; amended to be effective February 11, 1999, 24 TexReg 689; amended to be effective March 26, 2001, 26 TexReg 2363; amended to be effective December 4, 2016, 41 TexReg 9472 |
