The Attorney General of Texas
July 22, 1980
MARK WHITE
Attorney General
Honorable Georee M. Cowden Ooinion No. NW-212
Chairman -
-Public
_-- Utility Commission of Texas Re: Whether the Texas Municipal
7800 Slloal Creek Boulevard Power Agency is a public utility
Suite 400 N under the Public Utility Regulatory
Austin, Texas 78757 Act
Dear Mr. Cowden:
You hive requested our opinion as to whether the Texas Municipal
Power Agency (TMPA) is excluded from the definition of “public utility”
under the Public Utility Regulatory Act, and, if so, as to whether the Public
Utility Commission of Texas has eny original or appellate jurisdiction over
the Texas Municipal Power Agency’s rates and services.
The Texas Municipal Power Agency was created pursuant to article
1435a, section 4a(a), V.T.C.S., which provides in part:
In order to more readily accomplish the purposes
of this Act, two or more public entities by concurrent
ordinances may create a joint powers sgency to be
known as a municipal power agency, without taxing
power, as a separate municipal corporation, a
political s&division of the state, and body politic and
corporate, to have and exercise all of the powers
which are by Chapter 10 of Title 28, Revised Civil
Statutes of Texas, 1925, as amended, and this Act,
conferred 1@0n a pblic entity or entities, provided
that such egency shall not be authorized to engage in
any utility business other than generation, trans-
mission, and sale or exchange of electric energy to
the participating public entities and to private
entities who are joint owners with the agency of an
electric generating facility located within the state.
Section 3(c) of the Public Utility Regulatory Act, article 1446c, V.T.C.S.,
provides:
P- 678
.
Honorable George M. Cowden - Page Two (MW-2 12 )
The term ‘public utility’ or ‘utility,’ when used in this Act,
includes any person. . . other than a municipal corporation. . .
now or hereafter owning or operating for compensation in this
state equipment or facilities for:
(1) producing, generating, transmitting, distributing, selling,
or furnishing electricity (‘electric utilities’ hereinafter)
Because the TMPA is a municipally owned utility authorized to engage in the
generation, transmission, and sale or exchange of electric energy at a wholesale level
only, it is our opinion that it is specifically excluded from the definition of “public
utility” as contained in section 3(c) of the Public Utility Act.
In light of our above response, you ask if the Public Utility Commission has any
original or appellate jurisdiction over the rates and services of TMPA. The term rate
is &fined in section 3(d) of the Public Utility Act as a charge, toll, fare, tariff, etc.
charged by a public utility. The definition of regulatory authority contained in 3(g) of
the act includes the Public Utility Commission of Texas. Since section 37 of the act
grants original jurisdiction to the Public Utility Commission as a regulatory authority
over the rates of a public utility only, it is our opinion that the Commission has no
original jurisdiction over the rates of the TMPA.
Furthermore, the Commission exercises no appellate jurisdiction over the rates
charged by the TMPA because the TMPA is not subject to the rate making authority of
any municipality. V.T.C.S. art. 1435a, §4a(g); V.T.C.S. art. 1446c, %3(c), 3(d), 22, 23,
26.
Article VII of the Public Utility Act &es not confer jurisdiction upon the
Commission to regulate the service offerings of TMPA nor the authority to certify its
operations because section 49 of that article limits the applicability of Article VII to
municipally owned utilities offering retail utility service only. The TMPA may not
offer retail utility services by statute. V.T.C.S. art. 1435a, §4a(a). It is also our
opinion that the first sentence of section 16 of the Public Utility Act &es not confer
any jurisdiction upon the Commission to regulate the services offered by the TMPA or
its business affairs.
It is our opinion, however, that the reporting requirements of section 2’7 of the
Public Utility Act are applicable to the TMPA by virtue of the following provision:
Iflor the purposes of this section, ‘public utility’ includes
‘municipally owned utility.’
Sec. 27 (f).
p. 679
r ,
Honorable George M. Cowden - Page Three (Nw-212)
SUMMARY
The Texas Municipal Power Agency is not a public utility as
defined in the Public Utility Regulatory Act and the
Commission has no original or appellate jurisdiction over its
rates and services. The TMPA is subject to the reporting
requirements contained in section 27 of the Act.
kwm&.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Marty Terry
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Jon Bible
Rick Gilpin
Marty Terry
P. 680