The Attorne,y General of Texas
JIM MAlTOX Se~ptember11. 1986
Attorney General
Supreme Court Bullding us. Peggy Rosson Opinion NO.JM+Q
P. 0. BOX 12543
Austin. TX. 7971% 2549
Chairman
5121475-2501 Public Utility Commkision Re: Authority of the Executive
Telex 9101574.1357 of Texas Direc,tor.of the Public Utility
Telecopier 512f475-0255 7800 Shoal Creek Blvd., Suite 400N Comnlission
Austin, Texas 7875:'
714 Jackson. Suits 700
Dallas, TX. 7520245M Dear Ms. Rosson:
214l742-8944
You ask severa:.questions about the role of the executive head of
the Public Utility Commission [hereinafter "PCC"]. Specifically, you
4824 Alberta Ave.. Suite 160
El Paso, TX. 79905-2793
ask:
91515333484
1. Wall it the intent of the legislature in
creating the position of executive director that
/wl Tsxss. Suite 700 the executive director be the executive head of
,ston. TX. 77002.3111
the Public Utility Commission?
,13/2235885
2. If so, what is the scope of the authority,
BOB Broadway, Suits 312 responsib::l.ity
and duties of the executive head of
Lubbock. TX. 794gl.3479 the Public Utility Commission? In particular,
905i747-5235
what authority do the commissioners have to
delegate to the executive director authority for
4309 N. Tenth. Suite B carrying out administrative functions necessary
McAllsn, TX. 78501-1555 for the dutyto day operation of the commission?
5126924547
Section 8 of the Public Utilities Regulatory Act (PUILQ, article
200 Main Plszs, Suite 4W 1446c, V.T.C.S.. contains provisions regarding employees of the PUC:
San Antonio, TX. 792012797
5122254191 Sec. 8. (a) The commission shall employ such
officers, administrative law judges, hearing exa-
An Equal Opportunity/
miners, investigators, lawyers, engineers, econo-
Afflrmatlvs Action Employer mists, consultants, statisticians, accountants,
administriltive assistants, inspectors, clerical
staff, ani other employees as it deems necessary
to carry out the provisions of this Act. All
employees receive such compensation as is fixed by
the legis:.ature.
(b) ns! commission shall employ the following:
(1) grexecutive director;
p. 2495
Ms. Peggy Rosson - Page 2 (.Rl-542)
(2) a director of hearings who has wide
experience in 11t111ty regulation and rate
determination;
(3) a chief engineer who is a reg:;:;;;z
engineer and ar. expert in public
engineering and rate matters;
(4) a chief accountant who is a certified
public accountaM experienced in public utility
accounting;
(5) a director,of research who. is experienced
in the conduct of analyses of industry, economics,
energy, fuel, and other related matters that the
commission may want to undertake;
(‘5) a director of consumer affairs and public
information;
(7) a director of utility evaluation;
(8) a director of energy conservation; and
(9) a general counsel.
(c) The general counsel and his staff are
responsible for the gathering of information
relating to all natters within the authority of
the emission.
The duties of 1:h:e
general counsel include:
(1) accumulatj.on of evidence and other
information from public utilities and from the
accounting and technical and other staffs of the
commission and from other sources for the purposes
specified herein;
(2) preparation and presentation of such
evidence before i:he commission or its appointed
examiner in proce~!dings;
(3) conduct of investigations of public
utilities under 1:he jurisdiction of the com-
mission;
(4) preparation of proposed changes in the
rules of the comm:tssion;
p. 2496
Ms. Peggy Rosson - Page 3 (Jh-542)
(5) preparation of recommendations that the
commission undertake investigation of any matter
within its author:lt:y;
(6) preparation of recommendations and a
report of such staff for inclusion in the annual
report of the commission;
(7) protectlou and representation of the
public interest and coordination and direction of
the preparation amd presentation of evidence from
the comnission staff in all cases before the
commission as necessary to effect the objectives
and purposes stated in this Act and ensure
protection of the public interest; and purposes
stated in this Act and ensure protection of the
public interest; and
(8) such other activities as are reasonably
necessary to enab1.ehim to perform his duties.
(d) The commission shall employ administrative
law judges to preside at hearings of major import-
ance before the cosmission. An administrative law
P judge must be a licensed attorney with not less
than five years' general experience or three
years' experience Ln utility regulatory law. The
administrative la18judge shall perform his duties
independently frolrthe cornmission. The coomnission
and parties who nosy appear before the commission
may not communicate with an administrative law
judge concerning any issue of fact or law in a
contested case that has not been finally decided
by the commission, except on notice and opportun-
ity for all parties to participate.
(e) The executive director or his designee
shall develop ,%I11
_ intraagency career ladder
program, one par: of which shall be the intra-
agency posting of;111 nonentry level positions for
at least 10 days TIefore any public posting. The
executive director-or his designee shall develop a
system of annual performance evaluations based on
measurable job tasks. All merit pay for com-
mission enployeee-must be based on the system
established under This section.
(f) The execulzJvedirector or his/her designee
shall prepare ar.d maintain a written plan to
assure implemenGi:ion of a program of equal
P employment oppor&nity whereby all personnel
transactions are-made without regard to race,
p. 2497
Ms. Peggy Rosson - Page 4 (JM-542)
-,
color, disability,-sex. religion, age, or national
origin. The plans shall include:
(1) a comprehensive analysis of all the
agency's work for-e by race, sex, ethnic origin,
class of position, and salary or wage:
(2) plans for recruitment, evaluation, selec-
tion, appointmentI training, promotion, and other
personnel policies;
(3) steps reamnably designed to overcome any
identified unden~tilization of minorities and
women in the agency's work force; and
(4) objectiver, and goals, timetables for the
achievement of t,be objectives and goals, and
assignments of responsibility for their achieve-
ment.
The plans shal,l be filed with the governor's
office within 60 days of the effective date of
this Act, cover sn annual period. and be updated
at least annually. Progress reports shall be
submitted to the rovernor's office within 30 days
of November 1 and April 1 of each year and shall
include the steps tthe agency has taken within the
reporting period to COrnplY with these
requirements. (EnLphasisadded).
Your first question :ts whether the legislature intended the
executive director provid~zd for in section 8(b)(l) to be the
"executive head" of the PubHc Utilities Commission. Since "executive
head" has no precise meaning outside of a particular context, we
assume you are asking whethar the position of executive head of the
PUC was intended to be com!?srableto a position such as director of
the Texas Department of Corrections. See V.T.C.S. art. 6166j
(provides that TDC shall deLlagateto the director authority to manage
the affairs of the prison sys;tem). In other words, we assume that you
are asking whether the legislature intended the executive director to
be the chief administrative employee of the PUC.
Section 8(f) of PURA Ilets out specific duties of the executive
director of the PUC. Those :specificduties do not make the executive
director the chief administrative employee df the PUC. Rather, they
require him to "prepare and maintain" plans for various personnel
policies. If the legislature had intended to mandate that the exec-
utive director be the chief administrator of the PUC, it could have
easily done so. Cf. V.T.C.!:.art. 6166j. Because the legislature did
not do so, we mustconclude that PURA does not require that the exec-
utive director be the chief administrative employee of the PUC.
‘3 , 2490
Me. Peggy Rosson - Page 5 (,JM-542)
You also ask whether the commissioners may delegate to the
executive director the task of carrying out the day-to-day administra-
tion of the PUC.
Section 8(e) of PURA ,mts out certain specific duties that the
executive director must perjiorm. Also, the commissioners may, if they
choose. delegate to the executive director the ministerial and
administrative tasks involvoilin managing the day-to-day activities of
the PUC. Although acts invo:.vingofficial discretion must be performed
by the body designated by law, administrative or ministerial acts may
be delegated to others. The authority to hire new personnel or to
purchase supplies, for example, may be delegated to the executive
director or to any divisior chief listed in section 8 of art. 1446~.
Attorney General Opinion NCIS. WW-66 (1957); M-663 (1970). See also
Attorney General Opinion V-350 (1947) (discussion of distinction
between discretionary and m:.nisterialacts). Therefore, although PURA
does not require that the ex,ecutivedirector be the chief administra-
tive employee of the PUC, the commissioners may delegate that role to
the executive head, as lone;as they do not delegate responsibilities
that involve the exercise cf discretion, or that the legislature has
placed elsewhere.
SUMMARY
Section 8 of theiPURA does not require that the
executive director of the Public Utility
Commission be the chief administrative employee.
The commissionerrr may, however, delegate any
administrative or ministerial tasks to the execu-
tive director tha: the legislature has not placed
elsewhere.
Very truly yoursj 1
I
/In +-
LJ
JIM MATTOX
Attorney General of Texas
JACK RIGETOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman. Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 2499