RESO 2011-10 - Water & wastewater annexed areas - appeal to Rep. Kolkhorst RESOLUTION NO. 2011-10
RESOLUTION TO REQUEST THAT STATE REPRESENTATIVE LOIS KOLKHORST FILE A
BILL TO AMEND THE TEXAS WATER CODE SECTION 13.255. SINGLE CERTIFICATION
IN INCORPORATED OR ANNEXED AREAS, MODIFYING THE PROCEDURE BY WHICH A
MUNICIPALITY MAY OBTAIN SINGLE CERTIFICATION FOR WATER AND
WASTEWATER UTILITIES IN ANNEXED AREAS.
THE STATE OF TEXAS §
COUNTY OF WALKER §
WHEREAS the City of Huntsville and the City Council care for and wish to improve the health, safety and
welfare of its citizens and persons traveling in and through the City and Walker County;and
WHEREAS the current process by statute is lengthy and rarely used, necessitating a policy of increased
efficiency to ensure that just and adequate compensation is made to displaced service
providers;and
WHEREAS adequate fire flow to annexed developing areas is essential to the safety of lives and property;
and
WHEREAS the City Council of the City of Huntsville adopts and approves the attached drafted version of
the Act to be filed, and authorizes sending with this Resolution to Representative Lois
Kolkhorst,and copies to other appropriate legislators,government officials and governmental
entities.
NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HUNTSVILLE,TEXAS:
1. The above findings of fact and statements are hereby adopted.
2. The City Secretary is directed to take all necessary action to have this Resolution sent to
Representative Lois Kolkhorst, and copies of the letter and this Resolution to other appropriate
legislators,government officials and governmental entities.
PASSED AND ADOPTED this the 15t day of March 2011.
J.T ne,-, ayor
AT EST: APPRO ED 0 0
Lee odward,City Secretary Le eider, torney
By: H. B. No.
A BILL TO BE ENTITLED
AN ACT
relating to certificates of public convenience and necessity for
water service and sewer service for areas incorporated or annexed
by a municipality.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS :
SECTION 1 . Section 13. 255, Water Code, is amended by amending
Subsections (b) , (c) , (e) , (f) , (g) , and (m) to read as follows:
(b) If an agreement is not executed within 90 [ ] days after
the municipality, in writing, notifies the retail public utility
of its intent to provide service to the incorporated or annexed
area, and if the municipality desires and intends to provide
retail utility service to the area, the municipality prior to
providing service to the area, unless authorized to serve by
rules adopted pursuant to Section 13 . 242 (c) , shall file an
application with the commission to grant single certification to
the municipallyowned water or sewer utility or to a franchised
utility. The municipality shall concurrently deliver, via
certified mail, a copy of its application to the retail public
utility providing service in the annexed or incorporated area who
may submit information to the commission to controvert
information submitted by the municipality. The municipality' s
application shall include:
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H. B. No.
1 . A copy of the City' s notice of its intent to provide
service to the annexed or incorporated area;
2 . A map showing the annexed or incorporated area for
which single certification is sought;
3 . A brief description of the retail public utility' s
facilities used to provide service to the area for
which the municipality seeks single certification;
4 . A brief description of the property of the retail
Public utility, if any, for which the municipality
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requests transfer to it or to a franchised utility;
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5 . Documents demonstrating the municipality' s compliance
with the commission' s minimum requirements for public
drinking water systems;
[ ] Chapter 2001, Government Code, does not apply to any
application filed under this section or any commission decision
on such application. The decision of the commission on the
application is final after any reconsideration authorized by the
commission' s rules .
(c) Within 90 calendar days from the date the commission
determines the municipality' s application filed pursuant to
Subsection (b) to be administratively complete, the commission
shall grant the
application unless the commission makes an express finding that
the application failed to demonstrate the municipality' s
compliance with the commission' s minimum requirements for public
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H. B. No.
drinking water systems and supports its finding with separate
findings and conclusions for each element based solely on the
information provided by the applicant and the certificate holder.
The commission shall also determine whether single certification
as requested by the municipality would result in property of a
retail public utility being rendered useless or valueless to the
retail public utility, and shall determine in its order the
monetary amount that is adequate and just to compensate the
retail public utility for such property. If the municipality in
its application has requested the transfer of specified property
of the retail public utility to the municipality or to a
franchised utility, the commission shall also determine in its
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jorder the adequate and just compensation to be paid for such
property [ ] including an award for damages to property remaining
in the ownership of the retail public utility after single
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certification. In determining the monetary amount that is
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adequate and just to compensate the retail public utility, the
commission' s decision shall be based on the factors in Subsection
(g) . The order of the commission shall not be effective to
transfer property. A transfer of property may only be obtained
under this section by a court judgment rendered pursuant to
Subsection (d) or (e) of this section. The grant of single
certification by the commission shall go into effect : en '-tee Ei
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H. B. No.
an - - -"'t irate—the registry ef the r:�-er t the ie} -1 L :ibl--
ut4:1j-ty under su]59eet�-an (f)
1 . For an order on an application that does not request
the transfer of specific property of the retail public
utility, when the order is final after any
reconsideration authorized by commission rules;
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2 . For an order on an application that requests transfer
of specific property of the retail public utility,
upon the date the municipality makes payment as
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authorized by subsection (f) or makes payment as
required by final order of the court under subsections
(d) or (e) .
[ ] The municipality may take possession of the property to
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be transferred to the municipality when it makes payment as
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authorized by subsection (f) . The municipality or franchised
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utility must provide to each customer of the retail public
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utility being acquired an individual written notice within 60
days after the effective date for the transfer of the certificate
of convenience and necessity. The notice must clearly advise the
customer of the identity of the new service provider, the reason
for the transfer, the rates to be charged by the new service
provider, and the effective date of those rates .
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(e) Any party that is aggrieved by a final order of the
commission under this section may file an appeal with the district
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court of Travis County within 30 days after the order becomes
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H. B. No.
final . The hearing an in such appeal before the district court
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shall be by trial de novo on all issues. The court shall determine
the amount of compensation to be paid to the retail public utility
based on the factors contained in Subsection (g) . After the
hearing, if the court determines that the municipally owned utility
or franchised utility is entitled to single certification under the
provisions of this section, the court shall enter a judgment that:
(1) transfers to the municipally owned utility or
franchised utility title to property requested by the municipality
to be transferred to the municipally owned utility or franchised
utility and located within the singly certificated area and
property determined by the court or jury to be rendered useless or
valueless by the granting of single certification; and
(2) orders payment in accordance with Subsection (g) of
this section to the retail public utility of adequate and just
compensation for the property transferred and for the property
damaged as determined by the court or jury.
(f) Transfer of property shall be effective on the date the
court' s judgment becomes final . However, the municipality or
franchised utility may take possession of condemned property
pending trial and appeal if the municipality or franchised utility
pays the retail public utility or pays into the registry of the
court, subject to withdrawal by the retail public utility, the
amount if an established in the commission' s order as just and
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adequate compensation. [ . ] On application by the municipality or
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H. B. No.
franchised utility, the court shall order that funds deposited in
the registry of the court be deposited in an interest-bearing
account and that interest accruing prior to withdrawal of the
award by the retail public utility be paid to the municipality or
to the franchised utility. In the event the municipally owned
utility or franchised utility takes possession of property or
provides utility service in the singly certificated area pending
trial and appeal, and a court in a final judgment in an appeal
under this section holds that the grant of single certification was
in error, the retail public utility is entitled to seek
compensation for an damages sustained b it in accordance with
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Subsection (g) of this section. (g) For the purpose of implementing
this section, the value of real property owned and utilized by the
retail public utility for its facilities shall be determined
according to the standards set forth in Chapter 21, Property Code,
governing actions in eminent domain; the value of personal
property shall be determined according to the factors in this
subsection. The factors ensuring that the compensation to a retail
public utility is just and adequate, shall, at a minimum,
include: impact on the existing indebtedness of the retail public
utility and its ability to repay that debt, the value of the
service facilities of the retail public utility, excluding
contributed facilities or capital, located within the area in
question allocable to service to the area in question, the amount
of any expenditures for planning, design, or construction of
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H. B. No.
service facilities, excluding contributed facilities or capital,
outside the incorporated or annexed area that are allocable to
service to the area in question, the amount of the retail public
utility' s contractual obligations allocable to the area in
question, any demonstrated impairment of service or increase of
cost to consumers of the retail public utility remaining after the
single certification, the impact on future revenues in excess of
expenses lost from existing customers, necessary and reasonable
legal expenses and professional fees, factors relevant to
maintaining the current financial integrity of the retail public
utility, and other relevant factors. The foregoing factors shall
not be applied in a manner that would result in duplicative
assessment of impacts or otherwise allow unjust enrichment in
determining just and adequate compensation.
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SECTION 2 . This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2011 .
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