TITLE 16. ECONOMIC REGULATION
PART 1. RAILROAD COMMISSION OF TEXAS
CHAPTER 7. GAS SERVICES
SUBCHAPTER
H.
The Railroad Commission of Texas (Commission) adopts new §7.7102, relating to Regulatory Asset for Certain Costs Associated with Gross Plant, with changes from the proposed text as published in the October 17, 2025, issue of the Texas Register (50 TexReg 6749); therefore, the rule text will be republished. The Commission adopts the new rule pursuant to House Bill 4384, 89th Legislative Session (2025), which creates a new §104.302 in Subchapter G, Interim Cost Recovery and Rate Adjustment, of the Texas Utilities Code. House Bill 4384 became effective on June 20, 2025.
The Commission received four comments on the proposal; no comments were received from any associations. Comments were submitted by the following: (1) Atmos Cities Steering Committee (ACSC); (2) Atmos Energy Corporation on behalf of its Atmos Pipeline-Texas Division, Mid-Tex Division, and West Texas Division, CenterPoint Energy Resources Corp. d/b/a CenterPoint Energy Entex, and Texas Gas Service, a Division of ONE Gas, Inc. (Atmos); (3) City of Houston (Houston); and (4) SiEnergy Gas, LLC, Pines Gas, Inc., and Pines Gas Development, Inc. (SiEnergy).
General Comments
Atmos expressed general support for §7.7102. ACSC expressed concerns that the value of regulatory lag could be diminished and noted that overuse of interim rate recovery mechanisms could undermine review of invested capital in comprehensive rate proceedings. The Commission appreciates these comments.
Atmos stated certain proposed language could be interpreted as conditioning recovery on an interim rate filing with the Commission and noted recovery may also occur through a Statement of Intent filing. SiEnergy requested revisions to make clear the deferred accounting provisions are not conditioned on use of the GRIP statute and recommended corresponding revisions to the preamble and subsections (b)(2), (b)(3), and (c)(1). The Commission adopts revisions clarifying that a regulatory asset under this section may be included in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 of this title (relating to Interim Rate Adjustments) or in a rate case filed by the gas utility or initiated by the regulatory authority.
Atmos commented that the preamble should be revised to consistently use the term "gas utility." The Commission agrees and makes this change for consistency.
Subsection (a)
Regarding subsection (a)(1), Atmos and SiEnergy requested clarification that the initial deferred balance used for qualifying unrecovered gross plant is the balance recorded on or after June 20, 2025. The Commission declines to make changes to the rule in response to these comments but notes the bill's effective date in the preamble for clarity.
ACSC requested modifications to the definition of gross plant to explicitly account for plant retirements consistent with the FERC Uniform System of Accounts. The Commission declines to add retirements because doing so would expand the term beyond its intended purpose.
Houston also recommended several changes to the definition. The Commission agrees in part and adopts changes to clarify that gross plant is the original cost of a gas utility's investment in plant, facilities, or equipment. The Commission declines to add "new" because gross plant may include acquired plant, not just new investment.
Regarding subsection (a)(2), Atmos proposed revising the definition to include a formula for calculating post in-service carrying costs and to specify monthly interest accrual until recovery in rates. Houston requested specifying a daily or monthly interest rate and clarification regarding the applicable calculation period. The Commission adopts changes to specify a monthly interest rate and clarify recovery in rates but declines to include the suggested formula. Calculation mechanics, including the applicable period, will be addressed in the Commission-approved workpaper.
Regarding the proposed definition of recovery, Atmos and SiEnergy requested it be revised or deleted because it is unclear and could be interpreted as limiting recovery under this section to the Commission's interim rate adjustment mechanism. Houston also requested clarifying revisions. The Commission agrees the definition is unclear and deletes the proposed definition for clarity. As a result, the Commission renumbers the remaining definitions accordingly.
Regarding subsection (a)(3), Houston commented that it is unclear whether "unrecovered gross plant" is intended to treat gross plant as net of amounts deferred to a regulatory asset for purposes of calculating post in-service carrying costs and recommended clarifying revisions. The Commission declines to adopt the requested revision because the definition already excludes amounts being deferred to a regulatory asset; calculation mechanics will be addressed in the Commission-approved workpaper.
The Commission adopts subsection (a)(4) with conforming renumbering changes.
Subsection (b)
The Commission adopts subsection (b) with changes as discussed below.
A gas utility shall only defer for future recovery in rates the costs specified in subsection (b)(1). The Commission revises subsection (b)(1) for clarity and consistency, including adding "in rates" in the introductory sentence and revises subsection (b)(1)(B) to include a clarifying parenthetical regarding treatment of depreciation to account for accumulated depreciation resulting from depreciation expense included in the regulatory asset.
Atmos requested revising subsection (b)(1)(C) to allow for the recovery of all ad valorem taxes associated with unrecovered gross plant. The Commission agrees and revises subsection (b)(1)(C) to remove the interim rate adjustment calendar year-end limitation.
In subsection (b)(2), SiEnergy recommended adding "if applicable" following the reference to §7.7101. The Commission declines to adopt the suggested changes but revises subsection (b)(2) to clarify that an unrecovered gross plant regulatory asset shall be included in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 or in a rate case filed by the gas utility or initiated by the regulatory authority.
ACSC requested clarification regarding how the regulatory asset will be treated once the plant is reflected in rates established in an IRA or in a subsequent general rate case and recommended inserting clarifying language to specify that the regulatory asset should only accumulate incremental return, depreciation, and taxes between IRA filings and not beyond the effective date of rates set in an IRA or in a subsequent general rate case. The Commission declines to adopt the suggested changes but revises subsection (b)(2) to specify the calculation period begins at the in-service date of the unrecovered gross plant. Subsection (d) specifies how necessary accounting adjustments are to be made once plant amounts are recovered in rates. Calculation mechanics, including the applicable period, will be addressed in the Commission-approved workpaper.
SiEnergy recommended adding "if applicable" in subsection (b)(3). The Commission declines to adopt the suggested revisions but adopts conforming revisions for consistency with subsection (b)(2).
ACSC recommended requiring documentation to support the in-service date of the plant in subsection (b)(3). The Commission declines to add an additional documentation requirement in the rule text. The Commission will review a representative sample of projects, including documentation to verify in-service dates of the investment.
Subsection (c)
The Commission revises the subsection title for clarity.
Houston recommended revising subsection (c)(1) to allow review by regulatory authorities other than the Commission. The Commission declines to make the requested change because the statute assigns review authority to the Commission.
SiEnergy suggested adding a reference to clarify what costs are subject to review in subsection (c)(1). The Commission declines to adopt the suggested language and revises subsection (c)(1) to clarify that any costs included in a regulatory asset authorized under this section shall be fully subject to review for reasonableness and prudence by the Commission.
The Commission adopts subsection (c)(2) with conforming changes for clarity and consistency with §7.7101 terminology used elsewhere in the rule.
Subsection (d)
The Commission adopts subsection (d) with conforming changes for clarity and consistency, including clarifying that accounting adjustments apply upon inclusion of an unrecovered gross plant regulatory asset in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 or in a rate case and must be made in accordance with §7.310 of this title (relating to System of Accounts).
The Commission appreciates the input from all those who submitted comments.
The adopted rule language is summarized below.
New §7.7102 establishes definitions and requirements governing a gas utility's deferral, for future recovery in rates, of post in-service carrying costs, depreciation associated with unrecovered gross plant, and ad valorem taxes associated with unrecovered gross plant in an unrecovered gross plant regulatory asset.
Subsection (a) defines gross plant, post in-service carrying costs, unrecovered gross plant, and unrecovered gross plant regulatory asset.
Subsection (b) specifies the costs that may be deferred in an unrecovered gross plant regulatory asset and provides that the regulatory asset is included in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 (relating to Interim Rate Adjustments) or in a rate case filed by the gas utility or initiated by the regulatory authority. Subsection (b) also requires a workpaper, with formulas intact, on a Commission-approved form, and specifies the period and components that must be included in the calculation of the unrecovered gross plant regulatory asset balance to be recovered in rates.
Subsection (c) provides that any costs included in a regulatory asset authorized under this section are fully subject to Commission review for reasonableness and prudence and provides that if the Commission disallows regulatory asset costs previously recovered through rates established in the Commission's interim rate adjustment cost recovery mechanism under §7.7101, the disallowed costs are subject to refund with interest calculated at the gas utility's pre-tax weighted average cost of capital.
Subsection (d) requires appropriate accounting adjustments to reflect recovery in rates upon inclusion of an unrecovered gross plant regulatory asset in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 or in a rate case and provides that the accounting adjustments must be made in accordance with §7.310 (relating to System of Accounts).
The Commission adopts the new rule pursuant to Texas Utilities Code §104.302. Section 104.302 also mandates that the Commission adopt a rule no later than 270 days after the effective date of HB 4384.
Statutory authority: Texas Utilities Code §104.302.
Cross-reference to statute: Texas Utilities Code, Chapters 101-104.
§7.7102.
(a) Definitions.
(1) Gross plant--The original cost of a gas utility's investment in plant, facilities, or equipment that has been placed in service and is used and useful.
(2) Post in-service carrying costs--The product of unrecovered gross plant multiplied by a monthly interest rate equal to one-twelfth of a gas utility's pretax weighted average cost of capital established in the Commission's final order in the gas utility's most recent rate case until recovery in rates.
(3) Unrecovered gross plant--Gross plant whose cost is not yet being recovered in a gas utility's rates and not already being deferred to a regulatory asset.
(4) Unrecovered gross plant regulatory asset--A regulatory asset as authorized by §104.302, Utilities Code and this section.
(b) Deferral of certain costs associated with gross plant.
(1) A gas utility shall only defer for future recovery in rates the following costs in an unrecovered gross plant regulatory asset:
(A) post in-service carrying costs;
(B) depreciation associated with the unrecovered gross plant (if depreciation expense associated with the unrecovered gross plant is included in the unrecovered gross plant regulatory asset, the unrecovered gross plant used for purposes of calculating post in-service carrying costs shall be reduced by the associated accumulated depreciation that is deferred); and
(C) ad valorem taxes associated with the unrecovered gross plant.
(2) An unrecovered gross plant regulatory asset shall be included in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 of this title (relating to Interim Rate Adjustments) or in a rate case filed by the gas utility or initiated by the regulatory authority and calculated for the period from the in-service date of the unrecovered gross plant.
(3) A gas utility that defers for recovery an unrecovered gross plant regulatory asset shall include in its interim rate adjustment filing made pursuant to §7.7101 of this title or in a rate case filed by the gas utility or initiated by the regulatory authority a workpaper, with formulas intact, on a form approved by the Commission and found in the Gas Services' section of the Commission's website. The workpaper shall include the gas utility's calculation of the unrecovered gross plant regulatory asset balance to be recovered in rates calculated through the end of the interim rate adjustment calendar year or test year in a rate case. The calculation shall include depreciation expense, associated accumulated depreciation, ad valorem tax, and post in-service carrying costs.
(c) Review by the Commission in a general rate proceeding.
(1) Any costs included in a regulatory asset authorized under this section shall be fully subject to review for reasonableness and prudence by the Commission.
(2) If the Commission by order disallows unrecovered gross plant regulatory asset costs that were previously recovered through rates established in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 of this title, the disallowed costs are subject to refund with interest. Interest shall be calculated at the gas utility's pre-tax weighted average cost of capital.
(d) Accounting adjustments. Upon inclusion of an unrecovered gross plant regulatory asset in the Commission's interim rate adjustment cost recovery mechanism under §7.7101 of this title or in a rate case filed by the gas utility or initiated by the regulatory authority, the gas utility shall make appropriate accounting adjustments to its books and records, in accordance with §7.310 (relating to System of Accounts), to reflect the recovery in rates.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 24, 2026.
TRD-202600868
Olivia Alland
Attorney, Office of General Counsel
Railroad Commission of Texas
Effective date: March 16, 2026
Proposal publication date: October 17, 2025
For further information, please call: 512) 475-1295
PART 2. PUBLIC UTILITY COMMISSION OF TEXAS
CHAPTER 22. PROCEDURAL RULES
The Public Utility Commission of Texas (commission) adopts amendments to 13 rules and one new rule in 16 Texas Administrative Code (TAC) Chapter 22. The commission adopts the following rules with changes to the proposed text as published in the September 5, 2025 issue of the Texas Register (50 TexReg 5815): §22.123, relating to Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission; §22.127, relating to Certification of an Issue to the Commission; §22.141, relating to Form and Scope of Discovery; §22.142, relating to Limitations on Discovery and Protective Orders; §22.143, relating to Depositions; §22.144, relating to Requests for Information and Requests for Admission of Fact; §22.161, relating to Sanctions; §22.181, relating to Dismissal of a Proceeding; and §22.182, relating to Summary Decision. These rules will be republished.
The commission adopts the following rules with no changes to the proposed text as published in the September 5, 2025 issue of the Texas Register (50 TexReg 5815): §22.124, relating to Statements of Position; §22.125, relating to Interim Relief; §22.126, relating to Bonded Rates; new §22.162, relating to Enforcement of Subpoenas or Commissions for Deposition; and §22.183, relating to Disposition by Default. These rules will not be republished.
The commission received comments on the proposed rule from AEP Texas Inc., Electric Transmission Texas, LLC, and Southwestern Electric Power Company (collectively AEP); Entergy Texas, Inc. (ETI); Lower Colorado River Authority (LCRA); Office of Public Utility Counsel (OPUC); Oncor Electric Delivery Company, LLC (Oncor); Texas Association of Water Companies (TAWC); Texas Industrial Energy Consumers (TIEC).
General Changes
The adopted rules include various clerical and grammatical changes, as well as changes to outdated rules, statutes, or certain terms. Changes are also made to conform rules, where applicable, to the updated electronic filing requirements specified under §22.71, relating to Commission Filing Requirements and Procedures, and §22.72, relating to Form Standards for Documents Filed with the Commission, of this title.
Appeals of Interim Orders and Motions for Reconsideration
Adopted §22.123 is revised to require service of appeals and motions for reconsideration to comply with §22.74 of this title, relating to Service of Pleadings and Documents and authorizes the presiding officer to grant a stay of an interim order if good cause is shown.
Statements of Position
Adopted §22.124 is revised to require a party that has not prefiled direct testimony to file a statement of position no later than three working days before the start of a hearing unless the presiding officer determines that doing so would be an unjustified burden or that a different deadline should be imposed.
Interim Relief
Adopted §22.125 is revised to clarify the requirement that an applicant, in any proceeding involving a proposed interim change in rates, to bear the burden of proof to show that the proposed interim relief is just and reasonable.
Certification of an Issue to the Commission
Adopted §22.127 is revised to authorize a party to request the presiding officer certify an issue to the commission or the presiding officer to certify an issue at his or her discretion. Adopted §22.127 also requires the presiding officer to certify an issue through the issuance of a written order. Adopted §22.127 further replaces the deadline for party briefs on the certified issue is replaced with "the timeframe set by OPDM." Adopted §22.127 is also revised to extend the commission deadline to decide a certified issue within 60 days of submission of the certified issue to the commission and requires OPDM to place the certified issue on the commission's agenda for consideration "at the earliest time practicable" consistent with the 60 day deadline for a commission decision.
Forms and Scope of Discovery
Adopted §22.141 is revised to authorize the parties, by written agreement, to take depositions in accordance with the Texas Rules of Civil Procedure, subject to any other ruling or procedure established by the presiding officer.
Limitations on Discovery and Protective Orders
Adopted §22.142 is revised to revert the change on proposal that would permissively authorize the presiding officer to consider the factors specified under §22.127(d). The adopted version preserves existing language requiring the presiding officer to consider all factors under §22.127(d) before setting limits on requests for information.
Depositions
Adopted §22.143 is revised to require the taking and use of depositions in any proceeding to comply with §22.141 of this title. Adopted §22.143 is also revised to require the party conducting the deposition to provide a copy of the transcript to commission staff and upon request, OPUC, without cost to the commission or OPUC.
Requests for Information and Requests for Admission of Facts
Adopted §22.144 is revised to require copies of each request for information to be served upon all parties to the proceeding in accordance with §22.74 of this title and extends objections founded upon a claim of privilege or exemption to those found under the Texas Rules of Evidence. Adopted §22.144 is also revised to clarify the procedures for motions to compel in the event an incomplete response or no response is filed and refines the requirements for the production and organization of documents, including voluminous documents.
Sanctions
Adopted §22.161 is revised to clarify the causes for imposition of sanctions and the requirement for one or more commissioners or a SOAH administrative law judge to hold a hearing on a motion for sanctions if one is requested. Adopted §22.161 is also revised to omit the sanction of punishing an offending party or its representative for contempt to the same extent as a district court. Adopted §22.161 is further revised to extend the sanctions available to an administrative law judge to the same sanctions available to the commission. Adopted §22.161 is also revised to omit the requirement for a hearing to be held on a motion for sanctions upon receipt of the motion.
Enforcement of Subpoenas or Commissions for Deposition
Adopted §22.162 is revised to authorize the commission or the party requesting a subpoena or commission for deposition to seek enforcement in accordance with the APA if a person fails to comply with a subpoena or commission for deposition issued by a presiding officer.
Dismissal of a Proceeding
Adopted §22.181 is revised to revert language regarding gross abuse of discovery as a reason for dismissal. Specifically, the adopted version preserves existing language requiring abuse of discovery to be "gross" before being a basis of dismissal of a proceeding.
Summary Decision
Adopted §22.182 is revised to require any response to a motion for summary decision to be filed within 20 days, unless otherwise ordered by the presiding officer. Adopted §22.182 is also revised to authorize the presiding officer to set a hearing on the motion for summary decision despite a hearing not being required.
Disposition by Default
Adopted §22.183 is revised to authorize the presiding officer to issue a proposal for decision granting default and further authorizes the presiding officer to deem the factual matters asserted in the notice of the opportunity for a hearing to be admitted in the proposal for decision
General Comments
Internal cross-references to commission rules
OPUC recommended that internal cross-references to other commission rules refer to the applicable chapter of the Texas Administrative Code, rather than the overall title (i.e., "§ 22.74 of this title" should be revised to "§ 22.74 of this chapter." OPUC stated the applicable title for commission rules would be "Title 16, Economic Regulation" and therefore include rules of at least six different State of Texas agencies. OPUC noted that "of this chapter" is the correct reference in most instances, as that would refer to Chapter 22, under Part 2 of Title 16 which is the appropriate reference.
Commission response
The commission declines to implement the recommended change. Across the Texas Administrative Code there may be several instances of a specific chapter. For instance, "Chapter 22" appears in Title 1, Title 4, Tile 13, Title 16, Title 19, Title 28, and Title 43. The reference to "Title 16" is intended to ensure the Chapter 22 that is applicable to the commission rules. For this reason, the usage of "of this title" is common practice among Texas state agencies (e.g., Title 16, Part 1, Chapter 3 of the Texas Railroad Commission's rules and Title 30, Part 1, Chapter 290 of the Texas Commission on Environmental Quality's rules both use the phrase "of this title" over 200 times and "of this chapter" less than five times).
Usage of the terms "shall" vs. "must"
OPUC recommended that the term "shall" be preserved across the Chapter 22 rules, rather than be replaced with specific instances of "must" or "will," unless otherwise appropriate to do so in accordance with the Texas Code Construction Act. OPUC maintained that the Legislature intentionally used the term "shall" when drafting the statutes that underpin the commission's rules, even as recently as the last legislative session. Accordingly, if the Legislature had meant to use a different term, then it would have done so explicitly. OPUC further contended that the Texas Code Construction Act provides clear, separate definitions of "shall" and "must" and therefore the terms are not interchangeable. OPUC noted, had the Legislature intended the terms to be interchangeable, then it would have clearly stated that in the same manner notes that "may not" and "shall not" are. OPUC also commented that "shall" is not an antiquated term, given that other current bodies of law, such as "The Texas Rules of Civil Procedure, Texas Disciplinary Rules of Professional Conduct, and Texas Code of Judicial Conduct" all refer to the term "shall."
Commission response
The commission declines to implement the recommended change. The commission acknowledges the general applicability of the TCCA to the commission's rules. See Texas Government Code §311.002(4) (applying the TCCA to "each rule adopted under a code"). However, forgoing use of the term "shall" or replacing the term with "may," "must," or another contextually relevant term is appropriate and not inconsistent with the TCCA. As indicated by OPUC, the TCCA does separately indicate a specific construction for the terms "may," "shall," "must," and "may not" under Texas Government §311.016(1)-(3) and (5). However, the statute also establishes that: "[t]he following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute" (emphasis added). This provision indicates a general level of flexibility in usage and interpretation of various modal verbs. More importantly, the TCCA does not require the usage of "shall" as opposed to "must" or "may" when implementing statutes in agency rules. Therefore, the commission is not prohibited by law from utilizing other modal verbs to replace "shall." Lastly, commenters have not identified instances where the usage of a different modal verb has resulted in ambiguity as to the intended meaning.
Clerical and Grammatical Revisions
Several commenters noted clerical and grammatical errors in the proposed rules. The commission implements these changes where appropriate.
Proposed §22.123 - Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission.
Proposed §22.123 establishes the requirements associated with appeals and motions for reconsiderations of interim orders issued by the commission.
Proposed §§22.123(a), 22.123(a)(1), 22.123(b), 22.123(b)(1) - Appeal of an Interim Order and motion for reconsideration of interim order issued by the commission.
Proposed §22.123(a) establishes the availability, procedures, and form and content requirements associated with appeals of interim orders issued by the commission. Proposed §22.123(a)(1) establishes the availability of appeal for any interim order of the presiding office that immediately prejudices a substantial or material right of a party or materially affects the course of a proceeding.
Proposed §22.123(b) establishes the availability, procedures, and form and content requirements associated with motions for reconsideration of interim orders issued by the commission. Proposed §22.123(a)(1) establishes the availability of a motion for reconsideration for any interim order of the presiding officer that immediately prejudices a substantial or material right of a party or materially affects the course of a proceeding. The provisions also establish certain limitations associated with appeals and motions for reconsideration, respectively.
TIEC, Oncor, ETI, AEP, and OPUC recommended the commission not eliminate a party's right to appeal commission rulings on evidence or discovery under proposed §22.123(a)(1). TIEC, Oncor, OPUC also recommended the commission not eliminate a party's right to file a motion for reconsideration in response to commission rulings on evidence or discovery under proposed §22.123(b)(1). In contrast, LCRA supported the proposed changes, stating the revisions will promote more efficient management of contested cases and "avoid inserting Commissioners into discovery disputes."
TIEC emphasized that discovery is a "fundamental question" in commission proceedings and that the commission should be the ultimate arbiter of discovery disputes, particularly in cases that are referred to the State Office of Administrative Hearings (SOAH). TIEC noted that the commission is best positioned to evaluate the appropriate scope of discovery on a case-by-case basis. TIEC accordingly indicated that if the commission determines that certain discovery is unnecessary, the commission's order on the appeal or reconsideration "will prevent the party from whom that discovery is being sought from needlessly wasting resources responding to the requests." TIEC therefore recommended existing §22.123(a)(1) and §22.123(b)(1) be preserved and continue to authorize interlocutory appeals of discovery rulings. TIEC stated that a party's opportunity to appeal or request reconsideration of discovery rulings is a rare but essential option to ensure efficient and thorough proceedings. Specifically, the ability to appeal or request reconsideration of discovery rulings helps facilitate the prompt issuance of commission final orders, particularly in cases that have short statutory deadlines such as rate cases or sale, transfer, merger cases. TIEC commented that removing these options will "inevitably result in scenarios where cases must be remanded for further litigation based on an incomplete record." TIEC noted that, if these options are removed, the commission's only remedy would be to remand the proceeding for additional discovery and fact finding, which would inevitably introduce significant delays.
Oncor commented that in its most recent base rate proceeding, it received almost 2,000 requests for information including subparts and provided more than 2,000 responses, including supplemental responses. Oncor stated that some discovery requests raise significant concerns because of either (1) the burden involved to gather and provide the requested information; (2) the sensitivity of the requested information (i.e. critical infrastructure or confidential financial information); or (3) the requirement to disseminate third party confidential information. ETI similarly noted that discovery requests would frequently entail disclosure of privileged, confidential, or highly sensitive information that could cause substantial harm to the party from whom discovery is sought as well as customers and the general public. Oncor indicated that, while it does object to such requests, in some instances the presiding officer rules against Oncor and compels Oncor to respond to the request. Oncor emphasized that, due to this potential for a litigant to be compelled to respond to a discovery request to which it objects, a litigant needs the option to appeal such a ruling under §22.123(a)(1). Specifically, to either avoid the provision of confidential information which would cause irreversible harm to either the litigant or a third party, or to minimize or eliminate the significant burden that some discovery requests represent to the litigant. Oncor commented that the same rationale applies to preserving the option for a party to file a motion for reconsideration under §22.123(b)(1). Oncor noted that the Texas Railroad Commission permits parties to appeal discovery rulings under 16 TAC §1.55.(e). Oncor and AEP also noted that appeals of discovery rulings under §22.123(a)(1) are infrequent and therefore should remain available. AEP provided draft language consistent with its recommendation. Oncor stated that preserving the ability for a party to appeal discovery ruling will not unduly burden commission resources, as the commissioners may always decline to hear an issue on appeal under existing §22.123(a)(7)(A) or hear a motion for reconsideration under §22.123(b)(6)(A). Moreover, the commission can address any frivolous appeals or motions through sanctions under §22.161(b)(2) or the dismissal of a proceeding under §22.181(d)(9). Oncor noted that the commissions revisions of both §22.161 and §22.181 in this rulemaking would either not affect or enhance the commission's authority to act under those provisions in the event frivolous appeals are filed. Oncor provided draft language consistent with its recommendation.
OPUC commented that the proposed rule change prohibiting a party from appealing a presiding officer's discovery ruling on "substantive and material evidence" denies parties to a contested case their right to due process. OPUC recommended adding an exception to permit "appeals for discovery or evidentiary rulings that immediately prejudice a party's substantial or material right or materially affect the proceeding's course." OPUC stated its proposed revision would preclude appeals for minor and nonsubstantive discovery while protecting parties' due process rights. OPUC explained that the Texas Supreme Court has held that due process in administrative proceeding requires a full and fair hearing on disputed fact issues, which includes the right to present and rebut evidence. OPUC stated that, under §2001.051 of the Texas Administrative Procedure Act (APA), parties in a contested case are entitled to both the opportunity for a hearing after reasonable notice of not less than 10 days and the opportunity to respond and present evidence and argument on each issue involved in the case. OPUC further stated that the removal of a party's right to appeal a discovery ruling or file a motion for reconsideration "prevents the Commission from later considering that evidence when reaching a decision." OPUC provided draft language consistent with its recommendation.
Commission response
The commission agrees with TIEC, Oncor, ETI, AEP, and OPUC that appeals and motions for reconsideration should be available for discovery rulings. While appeals of discovery rulings should be rare, extraordinary circumstances may exist where a party believes that compliance with a discovery order would cause irreparable harm, including through the disclosure of confidential information. The commission accordingly omits that language from §22.123(a)(1) and (b)(1) to ensure a process exists for challenging a discovery ruling. However, the commission disagrees with commenters that appeals and motions for reconsideration should be available for evidentiary rulings. Under existing §22.123(a)(1) and (b)(1), appeals and motions for evidentiary rulings are unavailable for evidentiary rulings due to the logistical challenges associated with such procedural actions during a hearing. Moreover, evidentiary objections can be preserved in the record for later review in accordance with §22.221(c) of this title, relating to Rules of Evidence in Contested Cases.
Proposed §22.123(a)(5) - Motion for stay
Upon motion, proposed §22.123(a)(5) authorizes the presiding officer to grant a stay of the interim order pending a ruling by the commissioners if good cause is shown. The provision also establishes that the filing of an appeal does not stay the interim order or any applicable procedural schedule.
OPUC recommended that proposed § 22.123(a)(5) be revised to require the presiding officer to consider public interest factors in determining whether to issue an interim order. Specifically, whether the issuance of an interim order would "immediately prejudice a substantial or material right of a party or materially affect the proceeding's course; the effect on the parties and the public interest;" or any other factors relevant in determining if good cause exists. OPUC noted that these factors are similar to those for appeals under §22.123(a)(1) and that the revision would provide greater clarity to parties and the presiding officer. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change because it is unnecessary. OPUC's proposed changes would only serve to complicate the issuance of interim orders by the presiding officer.
Proposed §22.123(a)(8) - Reconsideration of appeal by presiding officer
Proposed §22.123(a)(8) authorizes the presiding officer to treat an appeal as a motion for reconsideration and may withdraw or modify the order under appeal before the commission decides on the merits of the appeal.
OPUC recommended proposed §22.123(a)(8) be revised to retain the requirement that the presiding officer notify the commission of their decision to treat an appeal as a motion for reconsideration. OPUC also recommended minor grammatical changes. OPUC stated that the existing language should be preserved because it is administratively efficient by avoiding unnecessary action by the commission. OPUC noted that, under §22.123(a)(7)(A), "the Commission is required to place an appeal on the Commission's agenda within 20 days after the appeal is filed, or the appeal will be deemed denied." OPUC indicated that, if the commission is notified during this period that the presiding officer is treating the appeal as a motion for reconsideration, then it will be communicated that commission action on the appeal is unnecessary as the presiding officer will rule on the motion for reconsideration. OPUC provided draft language consistent with its recommendation.
Commission response
The commission implements the grammatical correction but declines to retain the requirement that the presiding officer notify the commission of their decision to treat an appeal as a motion for reconsideration because the sentence is redundant. Any order on reconsideration effectively serves as notice to the commission, therefore the requirement is unnecessary.
Proposed §22.123(b)(2) - Procedure for motion for reconsideration
Proposed §22.123(b)(2) requires a motion for reconsideration of a commission interim order to be filed within five working days of the date the interim order is filed or the date the oral interim ruling is made and to be served on all parties in accordance with §22.74, relating to Service of Pleadings and Documents. The provision also establishes that, if the commission does not intend to reduce an oral ruling to a written order, it will indicate such on the record at the time of the oral ruling.
TAWC identified a typographical error in proposed §22.123(b)(2). Specifically, TAWC recommended that sentence concerning the deadlines for motions for reconsideration of interim orders should be revised to state that such motions must be filed "within five working days of the date the written order is filed…" (i.e. omitting the second unnecessary "of").
Commission response
The commission agrees with TAWC and implements the recommended change.
Proposed §22.124 - Statements of Position
Proposed §22.124 establishes the procedural and content requirements associated with statements of position.
Oncor recommended that proposed §22.124(a)(1) should be revised to require all parties to file a statement of position that includes all issues the party plans to litigate or may litigate unless direct testimony addressing such issues have been filed. Oncor stated that this revision would put other parties on notice of all issues that may be litigated and should be prepared to defend. Oncor provided draft language consistent with its recommendation.
Oncor, as an alternative to its primary recommendation, and LCRA and OPUC recommended retaining the existing version of §22.124(a)(1), which authorizes the option to prefile direct testimony, file a statement, or both. LCRA and OPUC specifically opposed the proposed change to §22.124(a)(1). LCRA stated that the existing provision, which requires a party to prefile a statement of position if the party does not prefile direct testimony on an issue that it plans to litigate. LCRA stated the existing provision appropriately notifies all other parties in a case of contested issues prior to a hearing. LCRA provided draft language consistent with its recommendation.
OPUC commented that the proposed revision to §22.124(a)(1) "directly impairs OPUC's ability to represent residential and small business consumers' rights" in commission proceedings. OPUC stated that, under the existing rule, if five issues were present in a proceeding but OPUC prefiled direct testimony on three of the issues it planned to litigate, OPUC could still file a statement of position on the remaining two issues. However, under the proposed rule language, OPUC would be required to either "either prefile direct testimony on all issues involved in the proceeding or file a statement of position" but not both. OPUC stated that the proposed change limits its strategic options in planning for litigation. OPUC stated that several reasons may exist for wanting OPUC to file a statement of position but not on others. OPUC stated that prefiling direct testimony is preferable when there are heavily disputed fact issues where an expert witness is required. Inversely, where there are issues that are not as fact-intensive, a statement of position would better represent the interests of customers. OPUC noted that splitting prefiling testimony and statements of position in this manner reduces litigation costs associated with cross-examining potentially superfluous witnesses and therefore saves ratepayer money. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement Oncor's recommended changes to §22.124(a)(1) as the revision would create additional obstacles for pro se litigants to participate in a proceeding before the commission. The commission also declines to retain the existing language for §22.124(a)(1) for the same reasons. In response to OPUC, the commission disagrees that the proposed change impairs the Office's ability to represent residential and small commercial customers. The amended rule only prescribes when a statement of position must be filed. It does not otherwise prohibit the filing of a statement of position.
Proposed §§22.124(a), 22.124(a)(1), 22.124(a)(2) - Statements of position required, timeline, and sanctions
Proposed §22.124(a) establishes the procedural requirements for statements of position. Proposed §22.124(a)(1) requires each party that has not prefiled direct testimony to file a statement of position no later than three working days before the start of a hearing unless the presiding officer determines that doing so would add unjustified burden and expense to the proceeding or that a different deadline should be imposed. Proposed §22.124(a)(2) authorizes the presiding officer to, in accordance with §22.161, relating to Sanctions, sanction any party that fails to comply with the requirement to file a statement of position.
Oncor recommended proposed §22.124(a)(1) be revised to set the deadline for filing statements of position to be no later than seven days before the start of the hearing. Oncor commented that the existing deadline of three working days is insufficient to provide parties with "adequate time to fully review and formulate a strategy for addressing issues raised in the statements of position." Oncor emphasized that this is particularly relevant when there are numerous parties filing statements of position while preparations for an imminent hearing are underway. OPUC stated that a seven day deadline is a more appropriate timeline that ensures all parties are both adequately apprised of and prepared to respond to any issues that are raised in a statement of position. As part of its alternative recommendation, OPUC similarly recommended that the timeline for filing statements of position be increased from three to ten working days before the start of a hearing, unless the presiding officer determines otherwise.
Commission response
The commission declines to implement the recommended change. Extending the deadline to file statements of position to seven or ten days could create conflicts with other deadlines in procedural schedules, particularly in cases with abbreviated timelines required by statute, or otherwise risk further delays in commission proceedings.
OPUC recommended that, if proposed §22.161 is adopted as-is, the commission adopt its alternative recommendations for §22.124(a)(1) and (b)(1) to ensure sufficient procedural guardrails are preserved for filing statements of position. As part of its alternative recommendation, OPUC recommended that proposed §22.124(a)(1) be revised to state that the failure of a party to file a statement of position is not grounds for automatic disqualification as a party from the proceeding. In contrast, TAWC recommended adding language to proposed §22.124(a)(2) be revised to explicitly include dismissal of a party as a sanction for failing to comply with the requirement to file a statement of position. OPUC stated that dismissal of a party from a proceeding for failing to timely file a statement of position under proposed §22.161(a) and (b)(8) "exceeds the presiding officer's authority," specifically an administrative law judge of the commission or SOAH. OPUC commented that its proposed revision to §22.124(a)(1) is necessary to protect the due process rights of parties before the commission, particularly pro se litigants that may be unfamiliar with the commission's procedural rules.
Commission response
The commission disagrees with OPUC that failure to file a statement of position is grounds for automatic dismissal or disqualification from a commission proceeding and declines to implement the recommended changes. The commission also disagrees with TAWC that §22.161(a)(2) should incorporate express language authorizing party dismissal for failure to file a statement of position. As amended, §22.124(a)(1) provides sufficient latitude for the presiding officer to either extend the deadline for filing a statement of position or eliminate the requirement altogether if it presents an unjustified burden for a party. The implementation of TAWC's recommendation is also unnecessary given the revisions made to §22.161(b), which provide discretion to the presiding officer, but do not mandate any particular sanction for noncompliance with §22.124(a)(1). Sanctions are an extraordinary penalty against a litigant. Therefore, the presiding officer should retain leeway to impose sanctions when appropriate, rather than automatically. Further discussion regarding §22.161 is provided under the appropriate header.
As part of its alternative recommendation, OPUC further recommended that proposed §22.124(a)(2) should be revised to prevent the presiding officer from striking or limiting a party's involvement in a proceeding for failing to file a statement of position until certain criteria are met. Specifically, before such action, the presiding officer must (1) notify the party of the requirement under §22.124(a)(1); (2) grants the party seven working days after the notice to prefile testimony or file a statement of position; and (3) provide the party an opportunity to be heard on any motion to dismiss, strike, or limit the party's participation. OPUC provided draft language consistent with its recommendation. OPUC noted that PURA §14.052(a) requires the commission to adopt and enforce rules governing practice and procedure before the commission and, as applicable, SOAH. OPUC further noted that PURA §14.052(d) requires all rules adopted by the commission "'ensure that each party receives due process.'" OPUC commented that intervenors in commission proceedings frequently have no representation but are directly affected by a utility's action in a particular case. OPUC stated that prefiled direct testimony and statements of position are "the two main ways that unrepresented residential intervenors can meaningfully participate in PUCT proceedings," but that intervenors are often unaware of the existing requirement to file a statement of position three working days prior to the start of a hearing. OPUC indicated that unrepresented intervenors are frequently uncertain as to what may be required during a rate proceeding or may assume it is like proceedings before the Texas Commission on Environmental Quality which affords the public to "to state their position, ask questions, and state a list of issues on the day of the hearing." OPUC emphasized that pro se intervenors are already disadvantaged relative to parties with representation, particularly those that frequently appear before the commission, and therefore should not be so severely sanctioned as to be dismissed from a case where they had no knowledge of certain procedural requirements, like filing a statement of position. OPUC noted that applicants in commission proceedings frequently seek to strike pro se intervenors that fail to file a statement of position. OPUC indicated this failure to file such statements is primarily due to "insufficient communication between the Commission and pro se intervenors unfamiliar with the Commission's rules." OPUC emphasized that the commission is obligated to reduce barriers to public participation in commission proceedings and proceedings referred to SOAH and that its proposed language would provide greater clarity to the public of such requirements. OPUC commented that proposed §22.124 is similar to §194.2 of the Texas Rules of Civil Procedure (TRCP), which governs initial disclosures. OPUC stated that TRCP §215.2(b), which relates to sanctions a court may impose for failing to comply with a court order or discovery request, requires notice and hearing before imposing sanctions on a party for failure to comply with a court order or discovery request. OPUC concluded that the proposed revisions to §22.161, without implementing any of OPUC's proposed safeguards to §22.124, would render the commission's rules more punitive than those under the TRCP. OPUC also commented that its proposed safeguards would help the presiding officer evaluate whether a party is acting in good faith. OPUC indicated that under proposed §22.161(a) and (b), the striking or limiting of a party from a proceeding may only occur if the filing of a motion or pleading was brought in bad faith for the purposes of harassment or other improper purpose such as abusing the discovery process or failure to obey a commission order.
Commission response
The commission declines to implement the recommended change because it is unnecessary. While §22.124 does not independently contemplate notice and hearing, §22.124 does cross-reference §22.161 which provides notice and opportunity for hearing before imposition of sanctions. This means that pro se litigants will receive notice and an opportunity for a hearing before dismissal or any other sanction authorized under §22.161. Providing further procedures under §22.124 would be duplicative and create ambiguity.
Proposed §22.125 - Interim Relief
Proposed §22.125 establishes the availability, procedures, and other requirements associated with interim relief.
Proposed §22.125(d) - Standard and burden of proof
Proposed §22.125(d) establishes that, in any proceeding involving a proposed interim change in rates, the applicant bears the burden of proof to show that the proposed interim relief is just and reasonable.
OPUC recommended that proposed §22.125(d) be revised to establish that interim rates cannot be higher than the rates proposed by the utility in its application. OPUC stated this revision is necessary for consistency with other commission rules, such as under §24.37(d) relating to Interim Rates, which authorizes the commission to authorize interim rates if a proposed increase in rates could result in an unreasonable economic hardship on the utility's customers or result in unjust or unreasonable rates. OPUC also referenced §24.37(e)(1) which states that the commission may, in determining interim rates under §24.37(d), set interim rates no lower than authorized rates prior to the proposed increase nor higher than the requested rates. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change because it is unnecessary and unduly limits the discretion of the presiding officer. Under the amended rule, contested interim relief can only be granted on a showing of good cause. For that reason, it is unlikely that interim rates would be higher than rates sought in the application because an applicant would carry the burden to show good cause for interim rates that exceed the applied-for rates. However, special circumstances could arise during a proceeding demonstrating that an applicant requires higher rates than originally sought. In such a scenario, the presiding officer's ability to set interim rates should not be limited and the recommended change would be counterproductive.
Proposed §22.126 - Bonded Rates
Proposed §22.126 establishes the procedures and requirements associated with requesting and reviewing bonded rates.
Proposed §22.126(a) - Requests for bonded rates
Proposed §22.126(a) establishes the filing and timing requirements for filing applications for bonded rates. The provision also establishes requirements for the bond itself and for commission review of the bond.
OPUC commented that proposed §22.126(a) should be revised to prohibit bonded rates from exceeding a utility's proposed rates. OPUC stated that PURA §36.110(b) and §53.110(b), as well as Texas Water Code §§13.187(j) and 13.1871(q) prohibit a bonded rate from exceeding a proposed rate and require that "any bonds must be payable to the commission 'in an amount, in a form, and with a surety approved by the commission' and 'condition on refund.'" OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change for the same reasons stated under the heading for §22.125(d). Additionally, the proposed revisions to §22.126 were purely grammatical, therefore OPUC's recommendation is out of scope.
Proposed §22.127 - Certification of an Issue to the Commission
Proposed §22.127 establishes the requirements and procedures associated with the certification of issues to the commission and commission action on certified issues.
Proposed §§22.127(c), 22.127(c)(1) and 22.127(c)(2) - Procedure for certification in commission proceedings, and requests for certification of an issue and placement of certified issue on commission agenda
Proposed §22.127(c) authorizes a party to request the presiding officer to certify an issue to the commission or, alternatively, authorizes the presiding officer to certify an issue at his or her discretion. The provision also requires certified issue to be submitted to the commission through the issuance of a written order. Proposed §22.127(c)(1) establishes that if a party requests an issue to be certified, the presiding officer will either certify the requested issue or file an order denying the motion at the earliest time practicable. Proposed §22.127(c)(2) requires the Office of Policy and Docket Management (OPDM) to place the certified issue on the commission's agenda to be considered at the earliest time practicable.
OPUC recommended proposed §22.127(c)(1) and (2) be revised to establish a 30-day deadline beginning on the date the request was made. OPUC commented that the proposed language that refers to "the earliest time practicable" is too ambiguous and would therefore significantly delay proceedings and interfere with statutory deadlines. OPUC stated that the commission should consider such statutory deadlines to enable parties to fully litigate their interests. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended changes because they are impracticable. While the commission shares OPUC's concerns for complying with statutory deadlines and seeks to timely secure the commission's responses to certified issues, there are a variety of factors that affect when an item may be placed on the commission's agenda. It may also be impractical to place the certified issue on the immediately upcoming open meeting because of the complexity of the certified issue and the agency resource requirements for the other open meeting agenda items. Additionally, OPUC's proposed language is infeasible as it would establish two deadlines on the same day (i.e., 30 days after a certified issue request is made). Unless the presiding officer acted much sooner than the proposed 30-day deadline under OPUC's version of §22.127(c)(1), then in most cases OPDM's compliance with proposed §22.127(c)(2) could be impossible. This is because the certified issue would not be placed on an open meeting agenda until after the presiding officer issued an order certifying the issue, after which the certified issue would need to be briefed and considered by the commissioners. Open meetings are currently scheduled for an approximate two- to three-week cadence, and the Open Meetings Act requires agendas to be published no later than seven days before the open meeting. However, consistent with the reinstatement and extension of the deadline for commission action under §22.127(d), the commission revises §22.127(c)(2) to require OPDM to place the certified issue on the commission's agenda at the earliest time practicable "in accordance with subsection (d) of this section."
Proposed §22.127(d) - Commission action
Proposed §22.127(d) provides that a commission decision on a certified issue is not subject to a motion for rehearing.
OPUC, Oncor, TAWC, and LCRA opposed the elimination of the deadline for the commission to issue a written decision on a certified issue. OPUC and LCRA recommended the current deadline of thirty days be preserved. LCRA alternatively recommended the rule establish commission discretion to set an appropriate, but specific deadline. Oncor also recommended the deadline for issuance of the commission's written decision on a certified be reinserted into the rule and be set at 45 days. TAWC similarly recommended such a deadline be set at 60 days. OPUC stated that the phrase "earliest practicable time" in proposed §22.127(d) is too ambiguous and will only serve to delay proceedings and present issues in complying with statutory deadlines that must be complied with regardless. OPUC also recommended the commission consider statutory deadlines when scheduling the issuance of written decisions on certified issues to avoid conflict and to permit parties to "fully litigate their interests." OPUC provided draft language consistent with its recommendation. LCRA acknowledged the difficulty in meeting the existing 30-day deadline to issue a written decision on a certified issue due to the prerequisites and filing requirements for items before the commission at an open meeting. LCRA noted, however, that the presiding officer frequently abates a proceeding while a certified issue is pending and that leaving a proceeding abated indefinitely is not efficient. Oncor stated that it is not opposed to extending the thirty-day deadline for the commission to issue a written decision on a certified issue, but it is opposed to eliminating the deadline entirely. Oncor emphasized that leaving a certified issue unresolved indefinitely could result in other filers that may seek to test or challenge the same issue in other cases during the pendency of the initial certified issue which would contribute to confusion between proceedings and increased, redundant work for staff and stakeholders. Conversely, providing deadline provides certainty to parties that present certified issue will have an expectation as to when it will receive commission guidance on such issues, which are typically of significant importance or consequence to that party. Oncor provided draft language consistent with its recommendation. Similar to Oncor, TAWC emphasized the necessity of such a deadline to ensure proceedings are not postponed indefinitely.
Commission response
The commission reinstates the deadline for the commission to decide a certified issue and adopts TAWC's deadline of 60 days from the date the certified issue is submitted to the commission. A 60 day deadline appropriately balances the aforementioned timing considerations for Open Meetings and the need for regulatory certainty on when to expect commission guidance on certified issues.
Proposed §22.141 - Forms and Scope of Discovery
Proposed §22.141 establishes the scope and methods for discovery in a commission proceeding, including stipulations that may be agreed to regarding discovery procedures.
TAWC recommended that proposed §22.141 be revised to explicitly apply the Texas Rules of Civil Procedure (TRCP) rules for discovery in commission proceedings. TAWC noted the TRCP are established procedure and precedent used in most other legal proceedings in the State of Texas.
Commission response
The commission declines to implement the recommended change because it is out of scope. The implications of applying the TRCP discovery rules wholesale to all commission proceedings, including the costs and benefits of such a revision, would require substantial evaluation that is beyond the scope of a rule review. Moreover, such an analysis has not been provided by commenters.
Proposed §22.141(a) - Scope
Proposed §22.141(a) establishes that parties may obtain discovery regarding any matter not privileged or exempted under the Texas Rules of Evidence, the TRCP or other law or rule that is applicable to the subject matter in the proceeding. The provision also establishes what matters are discoverable and certain requirements associated with the production of documents or tangible things.
ETI and OPUC recommended that the existing language of §22.141(a) that establishes the proper scope of discovery as matters "relevant" to the subject matter in the proceeding, rather than subject matter "applicable" to the subject matter in the proceeding. ETI strongly opposed the revision on the basis that the term "relevance" is "a ubiquitous and well-understood legal concept that benefits from decades, if not centuries, of legal precedent interpreting the meaning of the term," whereas the term "applicable" is ambiguous and unsupported by precedent. ETI noted that it is unclear how the terms are supposed to differ and this lack of clarity would therefore lead to significant litigation and expense by parties in seeking to define the new standard. ETI emphasized that the policy rationale for basing the scope of discovery on "relevant" stems from Rule 403 of the Texas Rules of Evidence - stating that "evidence is relevant if… it has any tendency to make a fact more or less probable than it would be without the evidence; and…the fact is of consequence in determining the action." In contrast, using the term "applicable" risks expanding the scope of discovery in a manner that wastes resources without any commensurate benefit towards achieving a meaningful resolution to a commission proceeding. ETI commented that the term "applicable" would also unnecessarily narrow the scope of discovery in a commission proceeding by excluding important information that is informative for the presiding officer in rendering a decision. OPUC commented that "relevant" is an easier concept to understand for pro se intervenors and therefore should be preserved. OPUC provided draft language consistent with its recommendation.
Commission response
The commission agrees with ETI and OPUC and reverts the proposed change. Specifically, the commission replaces the term "applicable" with the existing term "relevant" in §22.141(a).
Proposed §22.142 - Limitations on Discovery and Protective Orders
Proposed §22.142 establishes the limitations on discovery requests and requests for information.
TAWC recommended that the discovery and protective order limitations under proposed §22.142 either be replaced with or based on the limitations prescribed by the TRCP. TAWC alternatively recommended that proposed §22.142 be revised to limit discovery requests "such that utilities are not subject to requests for information (RFIs) without end." TAWC stated that the current unlimited discovery practices in commission proceedings represents a significant time and resource commitment to its members, particularly in rate proceedings, and is not beneficial to water and sewer utilities or their ratepayers.
Commission response
The commission declines to implement the recommended change because it is out of scope for the same reasons stated in the commission response under the header for §22.141. Specifically, the implications of applying the TRCP rules concerning discovery and protective order limitations wholesale to all commission proceedings, including the costs and benefits of such a revision, would require substantial evaluation that is beyond the scope of a rule review. Moreover, such an analysis has not been provided by commenters. Regarding TAWC's concerns about abuses of the discovery process, a party may move for sanctions under §22.161(b)(2) for "abusing the discovery process in seeking, making, or resisting discovery."
Proposed §22.142(d) and §22.142(d)(1) - Limitations on requests for information
Proposed §22.142(d) establishes the requirements associated with limitations on requests for information. Proposed §22.142(d)(1) establishes a list of factors the presiding officer must consider before setting limitations on requests for information.
LCRA recommended proposed §22.142(d)(1) be modified to require the presiding officer to consider the factors for limiting discovery under §22.142(d)(1)(A)-(K). LCRA stated that the revised language effectively authorizes the presiding officer to limit discovery in a proceeding without any standards and therefore would invite discovery disputes and appeals. LCRA stated that the broad factors under §22.142(d)(1)(A)-(K) allow the presiding officer to exercise discretion when setting limitations on discovery, therefore revising the provision to make consideration of such factors permissive is unnecessary.
Commission response
The commission agrees with LCRA and implements the recommended change.
New §22.142(e) - Discovery response deadlines in expedited proceedings
OPUC recommended new §22.142(e) be added to the proposed rule to establish standard discovery response filing deadlines in expedited proceedings that would apply if such deadlines are not otherwise addressed in the applicable commission rule. OPUC stated that the filing response deadlines for expedited proceedings are inconsistent across commission rules. Specifically, some rules establish a timeline for a particular expedited proceeding, but some do not. Some rules use the standard 20-day response deadline even though it does not apply in expedited hearings. OPUC stated adding a standard discovery timeline for expedited proceedings that applies unless the applicable commission rule states otherwise would help provide consistency for discovery timelines and benefit pro se litigants and less sophisticated parties in commission proceedings by providing a clear filing deadline. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change at is it out of scope. Any substantive changes that were not included in the proposal are outside of the scope of the rule review and should be undertaken in a rulemaking specifically regarding this topic. Moreover, parties routinely negotiate shorter discovery deadlines in cases with abbreviated timeframes.
Proposed §22.143 - Depositions
Proposed §22.143 establishes the procedural and timing requirements for requesting and holding a deposition in commission proceedings, including the provision of deposition transcripts
Proposed §22.143(c) - Copy to be provided
Proposed §22.143(c) requires the party conducting the deposition to provide a copy of the transcript to commission staff without cost to the commission.
OPUC recommended proposed §22.143(c) be revised to state that copies of depositions should be provided to OPUC at no cost, upon OPUC's request. OPUC provided draft language consistent with its recommendation.
Commission response
The commission agrees with OPUC and implements the recommended change.
Proposed §22.144 - Requests for Information and Requests for Admission of Facts
Proposed §22.144 establishes the requirements associated with requests for information, requests for admissions of fact, and motions to compel. The provision also establishes timing requirements associated with responding to such requests and motions, including making objections and supplementing responses.
Proposed §22.144(a) - Availability
Proposed §22.144(a) authorizes any party to serve upon any other party written requests for information and requests for admission of fact at any time after an application is filed and is subject to the provisions of §22.141, relating to Forms and Scope of Discovery.
Oncor, AEP, and ETI opposed proposed language to §22.144(a) that would let the presiding officer, with party agreement, keep drafts of testimony, exhibits, and workpapers from disclosure. Oncor commented that parties frequently agree, sometimes in writing in agreed procedural schedules or other documents filed with the commission, that such material is not discoverable. Accordingly, Oncor stated the proposed addition is unnecessary and could be interpreted as otherwise authorizing the discovery of such draft materials. Oncor stated the additional language would increase the amount of discovery disputes where parties have agreed to the non-discoverability of such materials, but the presiding officer has not issued an order that memorializes such an agreement. Oncor provided draft language consistent with its recommendation. AEP and ETI recommended that proposed §22.144(a) be revised to explicitly state that drafts of testimony, exhibits, and workpapers are not subject to discovery unless expressly agreed by all parties and ordered by the presiding officer. AEP and ETI stated that the proposed language attempts to capture the standard practice that such draft materials are non-discoverable by agreement of the parties. However, AEP and ETI stated that the rule language should go further to explicitly bar such material from discovery for efficiency to avoid the administrative burden of the parties entering into - and the commission approving - such agreements in every proceeding. AEP provided draft language consistent with its recommendation.
Commission response
The commission agrees with Oncor and deletes the additional language from §22.144(a). However, the commission notes that the effect is the same - the presiding officer may order that certain draft material is not subject to disclosure upon agreement by the parties. The commission declines to implement the proposed changes by ETI and AEP because the revisions would make the default position that drafts are not discoverable unless agreed to by all parties and ordered by the presiding officer.
Proposed §22.144(b) and §22.144(b)(2) - Making requests for information and service
Proposed §22.144(b) establishes the content and service requirements associated with making requests for information. Proposed §22.144(b)(2) requires a copy of each request for information to be served upon all parties in accordance with §22.74 and establishes that requests for information received after 5:00 p.m. are deemed to have been received the following working day.
Oncor and ETI opposed changing the 3:00 p.m. deadline for service of requests for information to 5:00 p.m.. Oncor and ETI emphasized that the benefit of a 3:00 p.m. deadline is that parties will be more likely to be aware that they have received discovery on that day, as opposed to a 5:00 p.m. deadline, which is generally the end of a regular business day for most stakeholders. ETI stated that an earlier deadline will allow recipients of requests for information to review discovery requests, and either contact the propounding party for necessary clarifications, negotiate modifications to the requests, or begin responding to discovery before close of business. Oncor commented that the 5:00 p.m. deadline would cause parties that must response to RFIs to lose time when responding to requests for information and cause its employees to stay after business hours. Oncor stated that the proposed change would not greatly benefit the propounding party but significantly burden the responding party, with little benefit to the discovery process as a whole. Oncor provided draft language consistent with its recommendation. ETI stated that revising the deadline to 5:00 p.m. would create confusion with other pleading deadlines, particularly among pro se litigants. OPUC supported changing the deadline to 5:00 p.m. if the commission changes all of its other filing-related deadlines to 5:00 p.m. across the commission's procedural rules such as under existing §22.71(h). Similar to ETI, OPUC stated that inconsistent deadlines across the commission's procedural rules could create imbalances in the discovery process, such as if requests are due by 5:00 p.m. but responses are due by 3:00 p.m.. TAWC expressed categorical support for changing the deadline for service of requests for information from 3:00 p.m. to 5:00 p.m..
Commission response
The commission agrees with OPUC that consistent deadlines are preferable and retains the 5:00 P.M. deadline, particularly for parties that do not regularly appear before the commission such as pro se litigants. In response to other commenters that opposed replacing the 3:00 P.M. deadline for service of requests for information with a 5:00 P.M. deadline, if a responding party needs additional time due to a discovery request being sent late in the day, that party may confer with the propounding party to seek an agreed extension or seek an extension from the presiding officer.
Proposed §22.144(c) and §22.144(d) - Responding to requests for information and objections to requests for information
Proposed §22.144(c) prescribes the timing and requirements for responding to requests for information. Proposed §22.144(d) requires parties to negotiate diligently and in good faith concerning any discovery disputes prior to filing objections. The provision further specifies the requirements for making objections and claiming privilege, including the form and content of objections.
Similar to its recommendation for proposed §22.142, OPUC recommended that proposed §22.144(c) be revised to list all filings associated with expedited proceedings for administrative efficiency. OPUC stated that the current fragmentary approach to expedited proceeding requirements in commission rules. OPUC stated that such a list would establish clear filing expectations for parties to those proceedings and ensure that parties and the general public are properly notified of those filings.
Commission response
The commission declines to implement the recommended change because it is unnecessary and out of scope. OPUC's recommendation represents a significant change that is beyond the scope of a rule review. Moreover, expedited proceedings frequently have varying deadlines based on different criteria. Therefore, maximum flexibility is necessary in expedited proceedings to ensure the statutory deadlines are met. Revisions to §22.144 to address expedited proceedings may be considered in a further rulemaking.
TAWC recommended the deadlines for responding to requests for information and requests for admissions of facts and objections in proposed §22.144(c) and (d) be revised to align with those established in the TRCP. Specifically, TAWC recommended that discovery responses should be extended to 30 days, as in the TRCP, rather than 20 days. TAWC alternatively recommended that, if the discovery rule is not modeled off the TRCP, the deadline for objections should be the same as the deadline for responses. TAWC further recommended that the process for asserting privileges and exemptions match the process established under TRCP Rule 193.3(c), including "recognition of the exemption in TRCP 193.3(c) from the requirement to assert a privilege at all for certain lawyer and litigation related communications and documents."
Commission response
The commission declines to implement the recommended change because it is out of scope for the same reasons stated in the commission response under the header for §§22.141 and 22.142. Specifically, the implications of applying the TRCP rules concerning responses to discovery wholesale to all commission proceedings -including the costs and benefits of such a revision - would require substantial evaluation that is beyond the scope of a rule review. Moreover, such an analysis has not been provided by commenters.
Proposed §22.144(d)(2) - Objections based on claims of privilege or exemption.
Proposed §22.144(d)(2) requires objections based on claims of privilege or exemption under the Texas Rules of Civil Procedure or Texas Rules of Evidence to file an index that lists specific information regarding the documents subject to the discovery request within two working days of the filing of the objections. The provision also establishes certain requirements for the index and exception for documents provided under the terms of a protective order.
LCRA recommended proposed §22.144(d)(2) be revised to expand the exception to complying with the requirements associated with making an objection to a discovery request on the basis of privilege "if alternative procedures are agreed to by the parties." LCRA stated that this revision reflects the common industry practice that parties frequently agree "that privilege objections are not necessary, that privilege may be asserted in the discovery response, and that an extension for the privilege index is allowed." LCRA provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change because it is overbroad and out of scope. LCRA's proposed language is overbroad because it exceeds the provided justification. Specifically, LCRA's edits would potentially exempt the requirement for a public privilege altogether, if agreed to by the parties, rather than just an extension for filing one. Additionally, the implications of allowing alternative procedures for objections to discovery requests, including the costs and benefits of such a revision, would require substantial evaluation that is beyond the scope of a rule review.
Proposed §22.144(e) - Motions to compel
Proposed §22.144(e) requires a party seeking discovery to file a motion to compel no later than five working days after the objection is received Alternatively, if no response is made to the request for information, the motion to compel must be filed no later than five working days after the deadline by when a response was due. The provision further states that, unless otherwise ordered by the presiding officer, a party seeking discovery in connection with an unanswered discovery request or an incomplete discovery response must file a motion to compel no later than five working days from the date the incomplete discovery response was received, or the unanswered discovery request was due.
LCRA recommended that proposed §22.144(e) be revised to clearly "affirm the obligation of all parties to provide full and complete responses to discovery that is appropriately propounded and unobjected." LCRA stated that, as proposed, the proposed language could enable a party to avoid responding to discovery by simply not responding to the request for information, rather than being required to file an objection. LCRA therefore recommended deletion of the references to unanswered discovery requests in the provision. LCRA provided draft language consistent with its recommendation. Oncor similarly observed that the proposed language could be interpreted such that the party that receives a discovery request may decline to respond "unless and until a motion to compel for the unanswered request is timely filed by the requesting party, rather than having to file an objection to the request." Oncor requested clarification as to whether the provision is intended to be read to have no negative consequences to the responding party. If that is not the correct interpretation, Oncor recommended that proposed §22.144(e) be revised to indicate the consequences when a party neither files an objection nor a response to request for information both when the requesting party timely files a motion to compel and when the requesting party does not.
Commission response
A full response to discovery is required under §22.144(c)(1), therefore further revisions to require a "full and complete" response are unnecessary. However, the commission revises §22.144(e) to address Oncor and LCRA's concerns. Specifically, the commission revises the provision to state that if an incomplete response is filed, the party seeking discovery must file a motion to compel no later than five working days after the incomplete response was filed and if no response is filed despite the requirement to do so, the party seeking discovery must file a motion to compel no later than five working days after the response was due. Additionally, the commission omits reference to the presiding officer ordering a different deadline to file a motion to compel.
TAWC recommended that proposed §22.144(e) be revised to state that a motion to compel may be filed within five working days of discovering a previous response is incomplete. TAWC stated the proposed language does not account for instances where it could not have been known that a discovery response was incomplete, such as in a deposition.
Commission response
The commission declines to implement the recommended change. TAWC's proposed language contravenes the purpose of having a deadline to file a motion to compel and would inappropriately relieve the party seeking discovery of the obligation to timely review discovery responses.
OPUC recommended that proposed §22.144(e) be revised to require a motion compel to "be filed no later than five working days after the deadline to respond" rather than "five working days after the deadline by when a response was due." OPUC stated this revision would help minimize the ambiguity associated with the deadline to file a motion to compel.
Commission response
The commission declines to implement the recommended change because it is unnecessary. The aforementioned revisions made to §22.144(e) should substantially address OPUC's concern.
Proposed §22.144(h) - Production of material responsive to requests for information
Proposed §22.144(h) establishes the procedures applicable to the production of materials responsive to requests for information, unless otherwise specified by the presiding officer.
TAWC recommended that proposed §22.144(h) be revised to align the discovery requirements associated with the production of voluminous material with the TRCP. TAWC expressed concern that, without further revision, the proposed indexing requirement for voluminous discovery would be overly burdensome, resource intensive, or even impossible in some instances. TAWC noted that the indexing requirement is onerous and not necessary in most cases because responses to request for information generally reference the relevant documents or files and the associated bates or page numbers that are responsive to the request. TAWC endorsed a general requirement that discovery responses and the associated materials be organized for efficient review of the requester, but cautioned that an index would "result in an unreasonable amount of time and expense to be incurred that is not materially justified." TAWC indicated that the proposed language would significantly increase the difficulty for parties to respond to discovery. In contrast, TRCP Rule 196.3(c) noted that the TRCP authorizes documents and tangible things to be produced in the manner that they are kept in the usual course of business. TAWC noted that TRCP Rule 196.4 establishes parameters for the production of electronic data and recommended that the electronic production of documents be an option for parties if feasible. If such an option is not included in the rule, TAWC alternatively recommended the commission lower the threshold for what it determines to be "voluminous" such that paper copies may be made available where those documents are maintained in instances when the total amount of documents requested in the set of discovery is more than 100 pages; not when as a single request is more than 100 pages, as the existing rule and proposed language currently provide. TAWC indicated that a single discovery request could still entail the production of thousands of pages of documents. TAWC commented that, prior to COVID, the commission required the filing of all discovery materials, unlike most other litigation forums.
Commission response
The commission declines to implement the recommended change because it is out of scope for the same reasons previously stated. Specifically, the implications of applying the TRCP rules concerning voluminous discovery wholesale to all commission proceedings, including the costs and benefits of such a revision, would require substantial evaluation that is beyond the scope of a rule review.
OPUC recommended that proposed §22.144(h) state that failure to fully produce all responsive material when responding to a discovery request could result in sanctions under §22.161. OPUC commented that sanctions on this basis are authorized under the APA for "other improper purpose such as to cause unnecessary delay or needless increase in the cost of the proceeding" or "abuse of the discovery process in seeking, making, or resisting discovery." OPUC noted that utilities frequently fail to respond properly to requests for information in commission proceedings it has litigated, which has led to unnecessary delays and increased litigation costs. OPUC stated that authorizing sanctions for failure to fully produce discovery provides an incentive for parties to comply with discovery requests at the outset and would discourage unnecessary discovery disputes. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change because it is unnecessary. Sanctions are already available under §22.161(b)(2) for abuse of discovery and §22.161(b)(3) for failing to obey an order of an administrative law judge or the commission.
Proposed §22.144(h)(1) - General requirements for production
Proposed §22.144(h)(1) requires a party responding to a request for information to make available all material responsive to the request to each party to that proceeding. The provision also specifies the specific methods that the responding party may use to make such material available.
ETI recommended proposed §22.144(h)(1) be revised to state that materials will only be provided in a manner consistent with each party's right to review such material under a commission protective order issued by the presiding officer. ETI stated that its recommended change eliminates ambiguity for the handling of confidential and highly sensitive protected material. ETI noted that highly sensitive protective material requires "exceptional handling" and must only be provided in a manner that is consistent with the terms of the protective order adopted in the proceeding and not necessarily to the parties in the proceeding, "regardless of their eligibility to receive and review those materials." ETI provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change because it is out of scope. ETI's proposal would require substantial evaluation that is beyond the scope of a rule review.
Proposed §22.144(h)(1)(A) - Service of responsive material
Proposed §22.144(h)(1)(A) authorizes a party responding to request for information to make such material available by serving a copy of all such responsive material to the other parties to the proceeding in accordance with §22.74.
ETI recommended that proposed §22.144(h)(1)(A) be revised to include an exception to the requirement to serve a copy of discovery on each party in the proceeding in the event a party does not provide sufficient contact information to the producing party. ETI commented that filing the discovery with Central Records is sufficient to make that discovery available to parties with inadequate contact information. ETI stated such an exception is appropriate because parties do not always provide adequate contact information, particularly when there are numerous or pro se litigants in the proceeding, such as CCN applications. ETI provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change. Discovery should be served on all parties and any disputes regarding discovery, including failure to properly serve discovery, can be brought to the presiding officer for resolution.
Proposed §22.144(h)(1)(B) - Filing of responsive material
Proposed §22.144(h)(1)(B) authorizes a party responding to request for information to make such material available by filing all such responsive material with the commission in the manner required by §22.71 of this title, relating to Commission Filing Requirements and Procedures, and, as applicable, §22.72 of this title relating to Form Requirements for Documents Filed with the Commission.
Oncor requested clarification as to whether proposed §22.144(h)(1)(B) requires a party to file voluminous discovery with an index or a party is only required to file an index describing the voluminous material, as is the case under the existing rule. Oncor recommended that the revision to proposed §22.144(h)(1)(B) not be adopted if the intention of the proposed language is the former and that the provision be explicitly revised to exclude voluminous discovery from being filed. Oncor observed that, under existing §22.144(h), a party is required to file with the commission the index of voluminous material, not the voluminous material itself. Oncor surmised that the intent of the index is to provide notice on the Interchange regarding the contents of the voluminous discovery materials that were not filed. Oncor expressed concern with the practicability associated with filing of voluminous material on the Interchange given the practical concerns with filing numerous of pages and the limitations of the Interchange filers which only allows for 255 individual files per filing, with a file size limitation of 200 megabytes. Alternatively, if the commission implements the new requirement, Oncor recommended that the commission provide guidance on how to electronically file large or numerous files. Oncor expressed that it is unclear whether the commission intends for voluminous materials to be filed separately from, or together with, the non-voluminous discovery. Oncor noted that if voluminous and non-voluminous discovery is not separated when filing, it would be burdensome and challenging for both the producing party when filing and for the requesting party when searching through the produced discovery. Oncor provided draft language consistent with its recommendation.
Commission response
The commission agrees with Oncor and implements the recommended change with minor revisions for consistency with the commission's drafting practices.
Proposed §22.144(h)(4) and §22.144(h)(4)(A)-(E)- Index for voluminous discovery
Proposed §22.144(h)(4) requires a party providing materials that individually are 100 pages or more to include with its response an index of the material responsive to a particular question and must organize the responses and material to enable parties to efficiently review the material. Proposed §22.144(h)(4)(A) requires the index to include information sufficient to locate each individual document by page or file number. Proposed §22.144(h)(4)(B) requires the index to include the date each document was created. Proposed §22.144(h)(4)(C) requires the index to include the title of the document, or, if none exists, a description of the document. Proposed §22.144(h)(4)(D) requires the index to include the name of the preparer or source of each document. Proposed §22.144(h)(4)(E) requires the index to include the length of each document.
AEP and Oncor recommended proposed §22.144(h)(4)(B) and (D) be deleted from the rule. Consistent with its recommendation for proposed §22.144(h)(1)(B), Oncor also recommended proposed §22.144(h)(4) be revised to exempt voluminous materials from being filed with the commission in lieu of providing an index describing such voluminous materials. AEP and Oncor commented that the creation date of a document under §22.144(h)(4)(B) and the name of the preparer under §22.144(h)(4)(D) are not always readily accessible and therefore is unduly burdensome to comply with. AEP alternatively recommended qualifying language such as "to the extent possible" be included in each provision such that parties can file the appropriate response without providing such information. Oncor further noted that the requirements to identify the creation date and the preparer is a burden additional to the already cumbersome task of compiling and producing discovery, particularly when a discovery request includes several records like internal company policies, transmission studies, etc. Oncor indicated that, in some instances, different portions of a document may have been created or updated on different dates, rendering it difficult to comply with the proposed change. Moreover, a utility responding to discovery may have hundreds of employees that have had varying levels of involvement in the preparation or creation of a document that has become subject to a discovery request. Oncor highlighted the impracticability and time commitment that providing such information would entail in the index, which could in itself be several pages long. Oncor stated the proposed additional information is not necessary for the requesting party to be able to use the requested document for their intended purpose and, should a question arise about a particular set of voluminous discovery, the requesting party may propound additional requests for information. AEP and Oncor provided draft language consistent with their recommendations.
Commission response
The commission acknowledges AEP's and Oncor's concerns and replaces the requirement to provide the date the document was created and the requirement to provide the name of the preparer or source of each document with a requirement to provide the name of the sponsoring witness. The commission renumbers the provisions accordingly. The commission declines to implement Oncor's revisions to §22.144(h)(4) which would exempt voluminous materials from being filed with the commission. All materials must be filed with the commission to maximize the availability of data that are in the public interest.
Proposed §22.161 - Sanctions
Proposed §22.161 establishes the procedural requirements and basis for issuing sanctions. The provision also provides a list of the types of sanctions and the procedure for seeking sanctions.
Proposed §22.161(a) - Causes for imposition of sanctions
Proposed §22.161(a) authorizes the presiding officer to impose appropriate sanctions against a party or its representative for the reasons specified under §22.161(a)(1)-(3) after notice and an opportunity for hearing. The provision also requires one or more commissioners or a SOAH administrative law judge to hold a sanctions hearing if requested.
OPUC recommended proposed §22.161(a) be revised to be identical to the notice and hearing requirements of §2003.049 of the APA. OPUC stated that since the rule simply reiterates what is already in statute, the rule language should reflect the statute exactly. OPUC explained that this proposed change would eliminate ambiguity and the potential for the rule to conflict with the statute unnecessarily. OPUC noted that §2003.049 states that an administrative law judge cannot impose sanctions until after notice and opportunity for a hearing on the sanctions is completed. OPUC stated that the proposed language is ambiguous as to the type of notice and hearing that must be performed before the issuance and order of a sanctions motion. OPUC noted that the proposed rule could be interpreted as authorizing a presiding officer "to move for sanctions, and issue them, after any type of notice and hearing, even if they were unrelated to the sanctions at issue in the motion," which would be a substantial violation of a party's due process rights in proceedings before the commission. OPUC provided draft language consistent with its recommendation.
Commission response
The commission disagrees with OPUC and declines to implement the recommended change. A set of sanctions that is available to the presiding officer (i.e., an administrative law judge or the commissioners) is appropriate and consistent with the APA. For purposes of implementation, it is not a requirement to perfectly mirror statutory language in a rule. Moreover, the list in §2003.049(j) is not exhaustive and the amended rule preserves the requirement for notice and opportunity for a hearing before sanctions may be imposed.
OPUC provided alternative recommendations for §22.161 if the commission implements its proposed language for §22.161(a) and §22.161(d). As part of its alternative recommendation, OPUC recommended proposed §22.161(a) be revised to prohibit a presiding officer from unilaterally moving to strike or limit a party from a proceeding for failing to comply with §22.124. Specifically, OPUC recommended revising proposed §22.161(a) to require a notice and hearing for striking or limiting a party's participation for failing to file a statement of position or prefiling direct testimony under §22.124(a). OPUC further recommended that any hearing that is held on such a ruling must either be held by a commissioner or a SOAH administrative law judge. OPUC stated that the removal of a party from a proceeding for something as minor as filing a timely statement of position is a severe consequence that diminishes that person's capability of representing themselves before the commission. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change. All sanctions require notice and opportunity for a hearing under the APA and the amended rule. If a hearing is requested, the hearing can be held either by the commission or the SOAH administrative law judge.
Proposed §22.161(b) and §22.161(b)(8)-(10)- Types of sanctions, limitation or disallowance of a party's right to participate in the proceeding, dismissal of application, and any other sanction available by law
Proposed §22.161(b) establishes the types of sanctions that may be assessed on a party by the presiding officer. Proposed §22.161(b)(8) establishes that the presiding officer may limit or disallow a party's right to participate in the proceeding as a sanction. Proposed §22.161(b)(8) establishes that the presiding officer may dismiss an application with or without prejudice as a sanction. Proposed §22.161(b)(10) specifies that the presiding officer may impose any other sanction available to the presiding officer by law.
OPUC recommended proposed §22.161(b)(8)-(10) be deleted because they exceed the commission's statutory authority under the APA. OPUC stated that §2003.049(j) of the APA does not authorize commission or SOAH administrative law judges to "broadly impede a party's due process rights in the manner allowed in the new proposed sanctions." OPUC cited case law stating that the commission may only exercise the powers the Legislature expressly grants it or implied powers reasonably necessary to carry out the agency's statutory duties. OPUC further cited the Texas Constitution and case law stating the commission does not have the same jurisdictional presumption that a district court does, and neither the commission or administrative law judges can exercise new powers or a power contradictory to statute on the basis that such power is administratively expedient. OPUC averred that the sanctions under proposed §22.161(b)(8)-(10) are not implied powers necessary to carry out the commission's statutory duties in commission proceedings. Specifically, the dismissal of a party from a proceeding or limiting a party's participation is a severe sanction on the party's due process right to appear in a commission proceedings. OPUC stated that the explicit limitations of §2003.049(j)(1)-(8) are reflected in proposed §22.161(c)(1)-(7) and that conversely, proposed §22.161(b)(8)-(10) are the effective exercise of a new power, contradictory to statute, "on the theory" of administrative expediency.
Commission response
The commission disagrees with OPUC and declines to implement the recommended changes. The sanctions under §22.161(b)(8)-(10) are in the existing rule and are necessary tools for the effective processing of a matter. Therefore, the cited sanctions should be retained.
As part of its alternative recommendation, OPUC recommended §22.161(b)(8) be revised to prohibit the issuance of a motion for sanctions for failing to file a statement of position unless all of OPUC's recommended procedural safeguards for §22.124 have been provided to the offending party. OPUC stated that, because of the inherent severity of dismissing, striking, or otherwise limiting participation in a proceeding on a party's due process rights, such safeguards are necessary. OPUC provided draft language consistent with its recommendation.
Commission response
The commission disagrees with OPUC and declines to implement the recommended change for the reasons already stated.
Proposed §22.161(c) - Procedure for seeking sanctions
As part of its alternative recommendation, OPUC recommended §22.161(c) be revised to prohibit the presiding officer from moving sua sponte to dismiss, strike, or limit a party's participation in the proceeding for failing to file a statement of position under §22.124. OPUC further recommended §22.161(c) be revised to require the automatic stay of a proceeding where a party is dismissed, struck, or limited from participating for failing to file a statement of position under §22.124 to allow the affected party an opportunity to appeal. OPUC also recommended §22.161(c) be revised to provide that the failure of the presiding officer to fully provide OPUC's proposed procedural safeguards under §22.124 is an "affirmative defense." OPUC stated that administrative efficiency does not outweigh the benefit in ensuring that parties are not wrongly removed or limited from a proceeding and receive their full due process rights. OPUC emphasized that the gravity of the sanction necessitates these extra procedural steps. OPUC provided draft language consistent with its recommendation.
Commission response
The commission declines to implement the recommended change. The current practice in which an administrative law judge can issue an order dismissing inactive parties should be preserved as it is a key tool for managing a hearing on the merits, particularly for large proceedings with many intervenors. The implementation of an automatic stay is also impracticable because of the variable length of time between open meetings. Moreover, if a stay is entered in a proceeding, that does not toll any applicable statutory deadlines.
Existing §22.161(d) - Imposition of sanctions by the commission
Existing §22.161(d) establishes sanctions additional to those under existing §22.161(c) that may be imposed by an administrative law judge, except for the punishment of the offending party or its representative for contempt to the same extent as a district court, that may be assessed by the presiding officer or the commission, after notice and opportunity for hearing.
OPUC opposed the merging of sanctions that can be imposed by the commission and the sanctions that can be imposed by the administrative law judge into proposed §22.161(d) and recommended retaining the existing bifurcated structure. OPUC stated that under the existing rule, there are certain sanctions that only the commission may issue due to the significant impact such sanctions have on a party's right to representation and due process before the commission. OPUC stated that allowing an administrative law judge to impose such sanctions lessens a party's protections against such punitive action. OPUC stated that public participation by affected persons "is a hallmark of Commission proceedings" and that the combined effect of merging proposed §22.161(d) and allowing the limitation or disallowance of participation in a proceeding under proposed §22.161(d) limits public participation. OPUC emphasized the general benefit to the public interest of having meaningful participation by ratepayers in commission proceedings and that the opportunity for such participation is required by both state law and commission rules. OPUC stated that public participation would be directly affected by the proposed repeal and, as an example, stated that administrative law judges frequently attempt to strike ratepayer intervenors from participating in proceedings for failure to meet the statement of position requirements under §22.124. OPUC stated that only the commission should be authorized to strike a party from a proceeding and referred to a commission order in Project No. 36164 where only the commission, not an administrative law judge, could impose sanctions under §22.161(d).
Commission response
The commission disagrees with OPUC and declines to implement the recommended change. A single set of sanctions should be available to all presiding officers. Moreover, a sanctions order from an administrative law judge can be appealed to the commission for further review.
Proposed §22.181 - Dismissal of a Proceeding
Proposed §22.181 establishes the requirements and procedures associated with dismissing a commission proceeding and filing motions for dismissal.
Proposed §22.181(d) and §22.181(d)(9)- Reasons for dismissal and abuse of discovery
Proposed §22.181(d) establishes a list of criteria for which a commission proceeding may be dismissed by the presiding officer. Proposed §22.181(d)(9) provides that abuse of discovery consistent with §22.161(b)(2), relating to Sanctions, is grounds for dismissal of a proceeding.
LCRA recommended proposed §22.181(d)(9) be revised to specify the original standard of "gross abuse of discovery" as a basis for dismissal of a proceeding or one or more issues within a proceeding. LCRA commented that dismissal is "an extreme remedy that should not be wielded without sufficient cause." LCRA noted that Rule 215 of the TRCP does not list dismissal of a case a remedy for abuse of discovery. LCRA stated that, generally, the evidentiary procedures for contested cases under the Texas APA are more lenient during administrating hearings relative to court cases. Therefore, a sanction as severe as dismissal "should not be invoked for abuses that are less than gross abuses."
Commission response
The commission retains the existing language for §22.181(d)(9) and revises the provision to specify "gross abuse of discovery."
Proposed §22.182 - Summary Disposition
Proposed §22.182 prescribes the filing and content requirements for motions for summary decision, the timing for responses to the motion, and other procedural aspects associated with commission review of the motion.
Proposed §22.182(d) - Hearing on the motion not required
Proposed §22.182(d) provides that a hearing on a motion for summary decision is not required.
LCRA and OPUC recommended that proposed §22.128(d) be revised to reflect existing language that authorizes the presiding officer to set the motion for a hearing. LCRA commented that stating this authority explicitly makes it clear that the presiding officer may set such a hearing in the rare event a hearing on a summary decision motion is needed. OPUC noted that the proposed language suggests that the default standard is to not hold a hearing, which may be detrimental to residential and small commercial customers. LCRA and OPUC provided draft language consistent with its recommendation.
Commission response
The commission agrees with LCRA and implements the recommended language. The commission declines to implement OPUC's language as it would perpetuate the ambiguity in the existing rule the proposed language was attempting to correct.
SUBCHAPTER
G.
The amended rules are adopted under the following provisions of PURA: §14.001 and Texas Water Code §13.041(a), which provides the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by PURA that is necessary and convenient to the exercise of that power and jurisdiction; PURA §14.002 001 and Texas Water Code §13.041(a), which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction; PURA §14.052 and Texas Water Code §13.041(b), which requires the commission to adopt and enforce rules governing practice and procedure before the commission and SOAH. The amended rules are also adopted under PURA §36.110 and §53.110 which establish the authority and procedure for an electric utility to impose changed rates in certain circumstances by filing a bond with the commission; PURA §15.024 which provides the commission with the authority to assess and impose an administrative penalty against a person who fails to timely respond to a written notice summarizing an alleged violation and a corresponding recommended penalty; and Texas Government Code, Subchapter D §2001.081-103 which govern the usage of and procedures for evidence, witnesses and discovery for contested cases held at agencies of the State of Texas.
Cross reference to statutes: Public Utility Regulatory Act §§14.001, 14.002, 14.052, and Texas Water Code §13.041(a) and (b); PURA 15.024, 36.110, 53,110; and Texas Government Code, Subchapter D §2001.081-103.
§22.123.
(a) Appeal of an interim order.
(1) Availability of appeal. Appeals are available for any interim order of the presiding officer that immediately prejudices a substantial or material right of a party or materially affects the course of the proceeding. Appeals are not available for evidentiary rulings. Interim orders are not subject to exceptions or motions for rehearing.
(2) Procedure for appeal. If the presiding officer intends to reduce an oral ruling to a written order, the presiding officer must so indicate on the record at the time of the oral ruling and must promptly issue the written order. Any appeal to the commission from an interim order must be filed within ten days of the date the written order is filed or the date the appealable oral ruling is made when no written order is to be issued. The appeal must be served on all parties in accordance with §22.74 of this title (relating to Service of Pleadings and Documents).
(3) Contents. An appeal must specify the reasons why the interim order is unjustified or improper and how it immediately prejudices a substantial or material right of a party or materially affects the course of the proceeding.
(4) Responses. Any response to an appeal must be filed within five working days of the filing of the appeal.
(5) Motion for stay. Pending a ruling by the commissioners, the presiding officer may, upon motion, grant a stay of the interim order if good cause is shown. A motion for a stay must specify the basis for a stay. The mere filing of an appeal does not stay the interim order or any applicable procedural schedule.
(6) Agenda ballot. Upon the filing of an appeal, the Office of Policy and Docket Management must send a separate ballot to each commissioner to determine whether the commission will consider the appeal at an open meeting. Untimely motions will not be balloted. The Office of Policy and Docket Management must notify the parties whether a commissioner by individual ballot has added the appeal to an open meeting agenda but will not identify the requesting commissioner or commissioners.
(7) Denial or granting of appeal.
(A) If no commissioner has placed an appeal on the agenda of an open meeting by agenda ballot within 20 days after the filing of an appeal, the appeal is deemed denied.
(B) If any commissioner has voted by agenda ballot in favor of considering the appeal, the appeal will be placed on the agenda of the next regularly scheduled open meeting or such other meeting as the commissioner may direct by the agenda ballot. If two or more commissioners vote to consider the appeal, but differ as to the date the appeal will be heard, the appeal must be placed on the latest of the dates specified by the ballots. At the open meeting, the commission will either rule on the appeal or extend time to act on it.
(8) Reconsideration of appeal by presiding officer. The presiding officer may treat an appeal as a motion for reconsideration and may withdraw or modify the order under appeal before the commission decides on the merits of the appeal.
(b) Motion for reconsideration of interim order issued by the commission.
(1) Availability of motion for reconsideration. Motions for reconsideration are available for any interim order of the commission that immediately prejudices a substantial or material right of a party or materially affects the course of the hearing. Motions for reconsideration may only be filed by a party to the proceeding and are not available for evidentiary rulings. Interim orders are not subject to exceptions or motions for rehearing.
(2) Procedure for motion for reconsideration. If the commission does not intend to reduce an oral ruling to a written order, the commission will so indicate on the record at the time of the oral ruling. A motion for reconsideration of an interim order issued by the commission must be filed within five workings days from the date that the written interim order is filed or the date the oral interim ruling is made. The motion for reconsideration must be served on all parties in accordance with §22.74 of this title by hand delivery, electronic mail, or by overnight courier delivery.
(3) Content. A motion for reconsideration must specify the reasons why the interim order is unjustified or improper.
(4) Responses. Any response to a motion for reconsideration must be filed within five working days of the filing of the motion.
(5) Agenda ballot. Upon the filing of a motion for reconsideration, the Office of Policy and Docket Management must send a separate ballot to each commissioner to determine whether the commission will consider the motion at an open meeting. The Office of Policy and Docket Management must notify the parties whether a commissioner by individual ballot has added the motion to an open meeting agenda but will not identify the requesting commissioner or commissioners.
(6) Denial or granting of motion.
(A) If no commissioner has placed a motion for reconsideration on the agenda for an open meeting by agenda ballot within 20 days after the filing of the motion, the motion is deemed denied.
(B) If any commissioner has voted by agenda ballot in favor of considering the motion, the motion will be placed on the agenda for the next regularly scheduled open meeting or such other meeting as the commissioner may direct by the agenda ballot. If two or more commissioners vote to consider the motion, but differ as to the date the motion will be heard, the motion must be placed on the latest of the dates specified by the ballots. At the open meeting, the commission will either rule on the motion or extend time to act on it.
§22.127.
(a) Certification. The presiding officer may certify to the commission an issue that involves an ultimate finding of compliance with or satisfaction of a statutory standard the determination of which is committed to the discretion or judgment of the commission by law.
(b) Issues eligible for certification. The following types of issues are appropriate for certification:
(1) the commission's interpretation of its rules and applicable statutes;
(2) which rules or statutes are applicable to a proceeding; or
(3) whether commission policy should be established or clarified as to a substantive or procedural issue of significance to the proceeding.
(c) Procedure for certification in commission proceedings. A party may request the presiding officer to certify an issue to the commission or the presiding officer may certify an issue at his or her discretion. The presiding officer must submit a certified issue to the commission by issuing a written order.
(1) If a party requests an issue to be certified, the presiding officer will either certify the requested issue or file an order denying the motion at the earliest time practicable.
(2) In accordance with subsection (d) of this section, the Office of Policy and Docket Management (OPDM) must place the certified issue on the commission's agenda to be considered at the earliest time practicable.
(3) Party briefs on the certified issue are due within the timeframe set by OPDM.
(4) The presiding officer may abate the proceeding while a certified issue is pending.
(d) Commission action. The commission will decide the certified issue within 60 days of submission of the certified issue to the commission. A commission decision on a certified issue is not subject to a motion for rehearing.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2026.
TRD-202600947
Seaver Myers
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 18, 2026
Proposal publication date: September 5, 2025
For further information, please call: (512) 936-7433
SUBCHAPTER
H.
The amended rules are adopted under the following provisions of PURA: §14.001 and Texas Water Code §13.041(a), which provides the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by PURA that is necessary and convenient to the exercise of that power and jurisdiction; PURA §14.002 001 and Texas Water Code §13.041(a), which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction; PURA §14.052 and Texas Water Code §13.041(b), which requires the commission to adopt and enforce rules governing practice and procedure before the commission and SOAH. The amended rules are also adopted under PURA §36.110 and §53.110 which establish the authority and procedure for an electric utility to impose changed rates in certain circumstances by filing a bond with the commission; PURA §15.024 which provides the commission with the authority to assess and impose an administrative penalty against a person who fails to timely respond to a written notice summarizing an alleged violation and a corresponding recommended penalty; and Texas Government Code, Subchapter D §2001.081-103 which govern the usage of and procedures for evidence, witnesses and discovery for contested cases held at agencies of the State of Texas.
Cross reference to statutes: Public Utility Regulatory Act §§14.001, 14.002, 14.052, and Texas Water Code §13.041(a) and (b); PURA 15.024, 36.110, 53,110; and Texas Government Code, Subchapter D §2001.081-103.
§22.141.
(a) Scope. Parties may obtain discovery regarding any matter not privileged or exempted under the Texas Rules of Evidence, the Texas Rules of Civil Procedure, or other law or rule that is relevant to the subject matter in the proceeding.
(1) Discoverable matters include:
(A) the existence, description, nature, custody, condition, location and contents of any documents, including papers, books, accounts, drawings, graphs, charts, photographs, maps, email, audio or video recordings;
(B) any other data compilations from which information can be obtained and translated, if necessary, by the person from whom information is sought, into reasonably usable form; and
(C) any other tangible things which constitute or contain matters relevant to the subject matter in the action, and the identity and location of persons having any knowledge of any discoverable matter.
(2) Discovery is not limited to tangible things, but may extend to knowledge, mental impressions, and opinions of persons who will testify; explanations of documents or tangible things, or information contained therein; and other relevant information within the knowledge or control of the entity from whom discovery is sought.
(3) A person is not required to produce a document or tangible thing unless it is within that person's constructive or actual possession, custody, or control.
(4) A person has possession, custody or control of a document or tangible thing as long as the person has a superior right to compel the production from a third party and can obtain possession of the document or tangible thing with reasonable effort.
(b) Discovery methods. Parties may obtain discovery by requests for information, which include requests for inspection or production of documents or things, requests for admissions, and depositions by oral examination.
(c) Stipulations regarding discovery procedure. The parties may, by written agreement:
(1) provide that depositions may be taken at any time or place, upon any notice, and in any manner and when so taken may be used in accordance with the Texas Rules of Civil Procedure, subject to any other ruling or procedure established by the presiding officer;
(2) agree to extensions of time in which to respond to or object to a discovery request; and
(3) modify the procedures provided by this chapter for other methods of discovery.
§22.142.
(a) Limitation of discovery requests. The presiding officer may limit discovery, by order, to protect a party against unreasonable or unwarranted discovery requests.
(1) The presiding officer may issue an order limiting discovery requests for good cause, including the following purposes:
(A) Prevention of undue delay in the proceeding;
(B) Protection from a request to provide information which is readily available to the requesting party at a reasonable cost;
(C) Protection from unreasonably cumulative or duplicative discovery requests; or
(D) Protection of a party or other person from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights.
(2) Any person from whom discovery is sought may file a motion for a protective order, specifying the grounds on which a protective order is justified. Motions and responses must include affidavits, discovery pleadings, or other pertinent documents to support the allegations made therein.
(3) The presiding officer may order that:
(A) Specific discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified;
(B) Discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the presiding officer;
(C) For good cause shown, results of discovery be sealed or otherwise adequately protected, that its distribution be limited, or that its disclosure be restricted;
(D) Information or material be protected by any means consistent with the intent of this chapter; or
(E) Information or material be protected in the interest of justice if necessary to protect the party from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights.
(4) The presiding officer may limit requests for information (RFIs) as set out in subsection (d) of this section.
(b) Denial of right to discovery requests. The presiding officer may deny a party the right to continue discovery, by order, upon proof and a finding that the party abused the discovery process.
(c) Protection of confidential or proprietary information. The presiding officer may issue a protective order governing the production of confidential or proprietary information as is appropriate in each proceeding before the commission. The order must be in the form adopted by the commission as the standard protective order. In addition, the parties may enter into agreements regarding protection of confidential or proprietary information. Entry of a protective order is not a determination that any documents produced under the protective order are proprietary or confidential.
(d) Limitations on requests for information.
(1) Before setting limitations on RFIs, the presiding officer must consider the following factors:
(A) The type of proceeding.
(B) The number and complexity of the issues in the proceeding.
(C) The cost of alternative forms of discovery for the party seeking discovery.
(D) The comprehensiveness of the information provided in the application.
(E) Any material deficiencies in the application.
(F) The number of issues that the party seeking discovery is expected to address.
(G) The novelty of the issues in the proceeding.
(H) The number of answers required by requests, including subparts, propounded in similar proceedings.
(I) Whether the number of questions is limited in other forms of discovery.
(J) Whether the hearing on the merits will be shortened by virtue of questions that are answered.
(K) Any jurisdictional deadlines.
(2) For purposes of calculating the number of RFIs, each answer is considered a separate request for information.
(3) If a party is not required to answer a question, that question may not be included in the calculation of whether the propounding party has reached its limit. However, if the presiding officer determines that a party is intentionally propounding frivolous, irrelevant, or otherwise objectionable requests, the question will be included in the calculation of a propounding party's limit.
(4) To discourage duplicate RFIs, any party that does not use its entire allotment of RFIs directed toward another party may transfer, by written notice to the presiding officer, that portion of its allotment to any other party in the proceeding. The requirements of this paragraph do not apply to RFIs originating from commission staff or directed to commission staff.
(5) The presiding officer may use discretion in determining whether to limit the number of RFIs that may be propounded upon commission staff or the Office of Public Utility Counsel by another party. In making this determination, the presiding officer must consider the limited resources available to each agency, and specifically that commission staff is required by law to represent the public interest in all proceedings before the commission.
(6) The presiding officer may limit or expand the number of RFIs that commission staff may propound upon any other party, and must consider that commission staff is required by law to represent the public interest in all proceedings before the commission, and thus may require more questions than other parties to ensure that it adequately explores all of the issues presented in the case.
§22.143.
(a) Governing statute. The taking and use of depositions in any proceeding are governed by the APA and §22.141 of this title (relating to Forms and Scope of Discovery). A request to issue a commission for deposition must be filed no later than five working days before the date of the deposition. Issuance of a commission for deposition is a ministerial act and does not preclude requests for issuance of a protective order pursuant to §22.142 of this title (relating to Limitations on Discovery and Protective Orders).
(b) Deposition by agreement. Upon agreement of the parties, parties may waive the requirement of issuance of a commission. All parties will be given no less than three working days' notice of depositions, including the person to be deposed, the date, time, and place of the deposition, and the subject of the deposition.
(c) Copy to be provided. Upon receipt of a transcript of the deposition by the party, the party conducting the deposition must provide a copy of the transcript to commission staff and upon request, the Office of Public Utility Counsel, without cost to the commission or the Office of Public Utility Counsel.
(d) Agreements. An agreement affecting a deposition upon oral examination is also enforceable if the agreement is recorded in the deposition transcript.
§22.144.
(a) Availability. At any time after an application is filed, and subject to the provisions of §22.141 of this title (relating to Forms and Scope of Discovery), any party may serve upon any other party written requests for information and requests for admission of fact.
(b) Making requests for information.
(1) Contents. A request under this section must identify with reasonable particularity the information, documents or material sought. A request seeking inspection of documents or property must describe with reasonable particularity the documents to be produced or the property to which access is requested, and must set forth the items to be inspected by individual item or by category.
(2) Service. A copy of each request for information must be served upon all parties to the proceeding in accordance with §22.74 of this title, relating to Service of Pleadings and Documents. Requests for information that are received after 5:00 p.m. Central Prevailing Time are deemed to have been received the following working day. Responses to requests for information must be served on the requesting party and any party that has requested, in writing, to be served.
(c) Responding to requests for information.
(1) Time for response. The party upon whom a request is served must serve a full written response to the request within 20 days after receipt of the request. The presiding officer, on motion and for good cause shown, may extend or shorten the time for providing responses.
(2) Requirements of response.
(A) Each response to discovery under this subsection must identify the preparer or person under whose direct supervision the response was prepared, and the sponsoring witness, if any.
(B) Each request for information must be answered separately. Responses to requests for information must be preceded by the request to which the answer pertains.
(C) Responses to requests for production of documents, property, or other items, must state, for each item or category of items for which an objection has not been raised, that inspection or other requested action will be permitted at a mutually convenient time at the location where the documents, property, or other items are maintained. If compliance with the request is impossible, a written response must be filed stating the reasons for the unavailability of the information.
(D) Where the response to a request for information may be derived or ascertained from local public records, the responding party is not be obligated to produce the documents for the requesting party. It is a sufficient answer to identify with particularity the public records that contain the requested information.
(E) Where a request may be answered by production of or reference to information that currently exists in the form of a document, computer record, or other existing tangible thing, it is a sufficient answer to the request to specify the records from which the answer may be derived or ascertained and to afford a reasonable opportunity to the requesting party to examine, to audit or to inspect such records and to allow the requesting party to make copies, compilations, abstracts or summaries from such records. The specification of records provided must be consistent with the method specified under subsection (h) of this section and include sufficient detail to permit the requesting party to locate and to identify the records from which the answers may be ascertained.
(F) Responses to requests for information must be filed under oath, unless the responding party stipulates in writing that responses to requests for information can be treated by all parties as if the answers were filed under oath.
(d) Objections to requests for information. Parties must negotiate diligently and in good faith concerning any discovery dispute prior to filing an objection. The objections must include a statement that negotiations were conducted diligently and in good faith. If negotiation fails, objections to requests for information, if any, must be filed within ten days of receipt of the request for information. The objections must state the date the request for information was received.
(1) The objections must be a separate pleading and entitled "Objections of (name of objecting party) to (style of RFI objected to)." The request for information to which an objection is being filed must be stated and the specific grounds for the objection must be separately listed for each question. If an objection pertains only to a part of a question, that part must be clearly identified. All arguments upon which the objecting party relies must be presented in full in the objection.
(2) If the objection is founded upon a claim of privilege or exemption under the Texas Rules of Civil Procedure or Texas Rules of Evidence, the objecting party must file within two working days of the filing of the objections, an index that lists, for each document: the date and title of the document; the preparer or custodian of the information; to whom the document was sent and from whom it was received; and the privilege or exemption that is claimed. A full and complete explanation of the claimed privilege or exemption must be provided. The index must be sufficiently detailed to enable the presiding officer to identify the documents from the list provided. The index and explanations must be public documents and must be served on all parties who are entitled to receive copies of responses to requests for information under subsection (b)(2) of this section. If a document is to be provided pursuant to the terms of a protective order, the responding party need not comply with the procedures of this paragraph.
(3) A party raising objections on the grounds of relevance as well as grounds of privilege or exemption is not required to file an index to the privileged or exempt documents at the time the objections are filed. A party may instead include an objection to the filing of the index. The objections must show good cause for postponement of the filing of the index. An index to the privileged or exempt documents is due within five working days of receipt of an order denying the relevance objection or overruling the objection to the filing of an index.
(4) The requirement to respond to those requests, or portions thereof, to which objection is made will postponed until the objections are ruled upon and for such additional time thereafter as the presiding officer may direct.
(5) In the interests of narrowing discovery disputes, the responding party may agree to provide certain information sought by a request while objecting to the provision of other information sought by the request.
(e) Motions to compel. The party seeking discovery must file a motion to compel no later than five working days after an objection is filed. If an incomplete response is filed, the party seeking discovery must file a motion to compel no later than five working days after the incomplete response was filed. If, despite the requirement to provide a response, no response is filed, the party seeking discovery must file a motion to compel no later than five working days after the response was due. Absence of a motion to compel will be construed as an indication that the parties have resolved their dispute. The presiding officer may rule on the motion to compel based on written pleadings without allowing additional argument.
(f) Responses to motions to compel. Responses to a motion to compel must be filed within five working days after receipt of the motion and must include all factual and legal arguments the respondent wants to present regarding the motion.
(g) In camera inspection. If an objection is founded on a claim of privilege or an exemption under the Texas Rules of Civil Procedure or Texas Rules of Evidence, the burden is on the objecting party to request an in camera inspection and to provide the documents for review. Any request must be filed within three working days of the receipt of the motion to compel. The request must contain the factual and legal bases to support the claimed exemption or privilege. The objecting party must review the documents and note with specificity any portions to which the claimed privilege or exemption claim does not apply. The objecting party must provide the documents to the presiding officer, under seal, no later than one working day after it requests an in camera inspection. Documents submitted for in camera review must not be filed with Central Records. Documents submitted for in camera review must be submitted to the presiding officer and enclosed in a sealed and labeled container accompanied by an explanatory cover letter. The cover letter must identify the control number and style of the proceeding and explain the nature of the sealed materials. The container must identify the control number, style of the case, name of the submitting party, and be marked "IN CAMERA REVIEW" in bold print at least one inch in size. Each page for which a privilege is asserted must be marked "privileged."
(h) Production of material responsive to requests for information. The following procedures apply to the production of materials responsive to requests for information unless otherwise specified by the presiding officer:
(1) A party responding to a request for information must make available all material responsive to the request to each party to that proceeding. A party responding to a request for information makes such material available by:
(A) serving a copy of all such responsive material to the other parties to the proceeding in the manner specified by §22.74 of this title; and
(B) with the exception of voluminous material as provided by paragraph (4) of this subsection, filing all such responsive material with the commission in the manner required by §22.71 of this title (relating to Commission Filing Requirements and Procedures) and, as applicable, §22.72 of this title (relating to Form Requirements for Documents Filed with the Commission).
(2) In addition to the required methods of production specified under subparagraphs (1)(A) and (1)(B) of this section, a party responding to a request for information may also make available materials responsive to such a request in a form and manner agreed to by the parties.
(3) Material responsive to a request for discovery must, at a minimum, be:
(A) consecutively categorized or classified (e.g., "Attachment A");
(B) labelled or cross-referenced by request for information number and subpart (e.g., "Responsive to RFI 1-1"); and
(C) sequentially ordered by page or bates number.
(4) A party providing materials that individually are 100 pages or greater must include with its response a detailed index of the material responsive to a particular question and must organize the responses and material to enable parties to efficiently review the material. The index must include:
(A) information sufficient to locate each individual document by page or file number;
(B) the title of the document, or, if none exists, a description of the document;
(C) the name of the sponsoring witness; and
(D) the length of each document.
(5) If a party responding to a request for information does not provide an index required under paragraph (4) of this subsection, the party filing the request for information may file a motion to compel the responding party to produce such an index.
(i) Duty to supplement. A responding party is under a continuing duty to supplement its discovery responses if that party acquires information upon the basis of which the party knows or should know that the response was incorrect or incomplete when made, or though correct or complete when made, is materially incorrect or incomplete. The responding party must amend its prior response within five working days of acquiring the information.
(j) Requests for admission of facts. Requests for admission of facts must be made in accordance with the Texas Rules of Civil Procedure.
(k) Modifications of deadlines. Modification of the deadlines for responses, objections, and motions to compel may be modified by agreement of the affected parties, by filing a letter or other document evidencing the agreement.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2026.
TRD-202600948
Seaver Myers
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 18, 2026
Proposal publication date: September 5, 2025
For further information, please call: (512) 936-7433
SUBCHAPTER
I.
The new and amended rules are adopted under the following provisions of PURA: §14.001 and Texas Water Code §13.041(a), which provides the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by PURA that is necessary and convenient to the exercise of that power and jurisdiction; PURA §14.002 001 and Texas Water Code §13.041(a), which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction; PURA §14.052 and Texas Water Code §13.041(b), which requires the commission to adopt and enforce rules governing practice and procedure before the commission and SOAH. The amended rules are also adopted under PURA §36.110 and §53.110 which establish the authority and procedure for an electric utility to impose changed rates in certain circumstances by filing a bond with the commission; PURA §15.024 which provides the commission with the authority to assess and impose an administrative penalty against a person who fails to timely respond to a written notice summarizing an alleged violation and a corresponding recommended penalty; and Texas Government Code, Subchapter D §2001.081-103 which govern the usage of and procedures for evidence, witnesses and discovery for contested cases held at agencies of the State of Texas.
Cross reference to statutes: Public Utility Regulatory Act §§14.001, 14.002, 14.052, and Texas Water Code §13.041(a) and (b); PURA 15.024, 36.110, 53,110; and Texas Government Code, Subchapter D §2001.081-103.
§22.161.
(a) Causes for imposition of sanctions. After notice and an opportunity for a hearing, a presiding officer, on the presiding officer's own motion or on the motion of a party, may impose appropriate sanctions against a party or its representative for the reasons specified under this subsection. If a hearing on the motion for sanctions is requested, one or more commissioners or a SOAH administrative law judge must hold a sanction hearing for purposes of this section. Sanctions may be imposed for:
(1) filing a motion or pleading that was brought in bad faith, for the purpose of harassment, or for any other improper purpose, such as to cause unnecessary delay or needless increase in the cost of the proceeding;
(2) abusing the discovery process in seeking, making, or resisting discovery; or
(3) failing to obey an order of an administrative law judge or the commission.
(b) Types of sanctions. A sanction imposed under subsection (b) of this section may include, as appropriate and justified, issuance of an order:
(1) disallowing further discovery of any kind or a particular kind by the offending party;
(2) charging all or any part of the expenses of discovery against the offending party or its representative;
(3) holding that designated facts be deemed admitted for purposes of the proceeding;
(4) refusing to allow the offending party to support or oppose a designated claim or defense or prohibiting the party from introducing designated matters in evidence;
(5) disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of such requests;
(6) requiring the offending party or its representative to pay, at the time ordered by the administrative law judge, the reasonable expenses, including attorney's fees, incurred by other parties because of the sanctionable behavior;
(7) striking pleadings or testimony, or both, in whole or in part, or staying further proceedings until the order is obeyed;
(8) limiting or disallowing the offending party's rights to participate in the proceeding;
(9) dismissing the application with or without prejudice; and
(10) imposing any other sanction available to the presiding officer by law.
(c) Procedure for seeking sanctions. A motion for sanctions may be filed at any time during the proceeding or may be initiated sua sponte by the presiding officer. A motion to compel discovery is not a prerequisite to the filing of a motion for sanctions. A motion should contain all factual allegations necessary to apprise the parties and the presiding officer of the conduct at issue, should request specific relief, and must be verified by affidavit. A motion must be served on all parties. Any order regarding sanctions issued by a presiding officer is appealable pursuant to §22.123 of this title (relating to Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission). Any sanction imposed by the administrative law judge may be stayed to allow the party to appeal the imposition of the sanction to the commission.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2026.
TRD-202600950
Seaver Myers
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 18, 2026
Proposal publication date: September 5, 2025
For further information, please call: (512) 936-7433
SUBCHAPTER
J.
The amended rules are adopted under the following provisions of PURA: §14.001 and Texas Water Code §13.041(a), which provides the commission the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by PURA that is necessary and convenient to the exercise of that power and jurisdiction; PURA §14.002 001 and Texas Water Code §13.041(a), which provides the commission with the authority to make adopt and enforce rules reasonably required in the exercise of its powers and jurisdiction; PURA §14.052 and Texas Water Code §13.041(b), which requires the commission to adopt and enforce rules governing practice and procedure before the commission and SOAH. The amended rules are also adopted under PURA §36.110 and §53.110 which establish the authority and procedure for an electric utility to impose changed rates in certain circumstances by filing a bond with the commission; PURA §15.024 which provides the commission with the authority to assess and impose an administrative penalty against a person who fails to timely respond to a written notice summarizing an alleged violation and a corresponding recommended penalty; and Texas Government Code, Subchapter D §2001.081-103 which govern the usage of and procedures for evidence, witnesses and discovery for contested cases held at agencies of the State of Texas.
Cross reference to statutes: Public Utility Regulatory Act §§14.001, 14.002, 14.052, and Texas Water Code §13.041(a) and (b); PURA 15.024, 36.110, 53,110; and Texas Government Code, Subchapter D §2001.081-103.
§22.181.
(a) Dismissal of a proceeding. Upon the motion of the presiding officer or the motion of any party, the presiding officer may recommend that the commission dismiss, with or without prejudice, any proceeding for any reason specified in this section.
(b) Dismissal of issues within a proceeding. Upon the motion of the presiding officer or the motion of any party, the presiding officer may dismiss or may recommend that the commission dismiss, with or without prejudice, one or more issues within a proceeding for any reason specified in this section.
(c) Dismissal without hearing. A dismissal under this section requires a hearing unless the facts necessary to support the dismissal are uncontested or are established as a matter of law.
(d) Reasons for dismissal. Dismissal of a proceeding or one or more issues within a proceeding may be based on one or more of the following reasons:
(1) lack of jurisdiction;
(2) moot questions or obsolete petitions;
(3) res judicata;
(4) collateral estoppel;
(5) unnecessary duplication of proceedings;
(6) failure to prosecute;
(7) failure to amend an application such that it is sufficient after repeated determinations that the application is insufficient;
(8) failure to state a claim for which relief can be granted;
(9) gross abuse of discovery consistent with §22.161(b)(2) of this title (relating to Sanctions);
(10) withdrawal of an application consistent with subsection (g) of this section; or
(11) other good cause shown.
(e) Motion for dismissal, responses, and replies. Dismissal of a proceeding or one or more issues within a proceeding may be made upon the motion of the presiding officer or the motion of any party.
(1) A party's motion for dismissal must specify at least one of the grounds for dismissal identified in subsection (d) of this section. The motion must include a statement that explains the basis for the dismissal and, if necessary:
(A) A statement that sets forth the material facts that support the motion; and
(B) An affidavit that supports the motion and that includes evidence that is not found in the then-existing record.
(2) A presiding officer's motion must be provided by written order or stated in the record and must specify one or more grounds for dismissal identified in subsection (d) of this section and a clear and concise statement of the material facts supporting the dismissal.
(3) The party that initiated the proceeding and any other party has 20 days from the date of receipt to respond to a motion to dismiss unless the presiding officer specifies otherwise. The response must contain a statement of reasons the party contends the motion to dismiss should not be granted, and if necessary
(A) A statement that refers to each material fact identified in the motion to dismiss as uncontested that the responding party contends is contested; and
(B) An affidavit that supports the response to the motion to dismiss and that includes evidence the party relies upon to establish contested issues of fact. The affidavit may include evidence that is not found in the then-existing record.
(4) Replies to a response to a motion to dismiss may be made only by leave of and as directed by the presiding officer.
(f) Action on a motion to dismiss. Action on a motion to dismiss must conform to this subsection.
(1) If a hearing on the motion to dismiss is held, that hearing must be confined to the issues raised by the motion to dismiss.
(2) If the administrative law judge determines that all issues within a proceeding should be dismissed, the administrative law judge must prepare a proposal for decision in accordance with §22.261 of this title (relating to Proposals for Decision) to that effect, unless the reason for dismissal is solely one of the following:
(A) the withdrawal of an application under subsection (g)(1), (2), or (3) of this section; or
(B) either failure to prosecute under subsection (d)(6) of this section or failure to amend an application such that it is sufficient after repeated determinations that the application is insufficient under subsection (d)(7) of this section, or both, and the dismissal is without prejudice.
(3) For dismissal under paragraphs (2)(A) and (2)(B) of this subsection, the administrative law judge may issue an order dismissing the proceeding. An order issued under this paragraph is a final order of the commission and is subject to motions for rehearing under §22.264 of this title (relating to Rehearing).
(4) The commission will consider a proposal for decision recommending dismissal as soon as is practicable.
(5) If the commission determines that all issues within a proceeding should be dismissed, the commission will issue an order subject to motions for rehearing under §22.264 of this title.
(6) If the administrative law judge determines that one or more, but not all, issues within a proceeding should be dismissed, the administrative law judge may issue a proposal for interim decision or an interim order dismissing such issues. An interim order issued by the administrative law judge resulting in partial dismissal is subject to appeal or reconsideration under §22.123 of this title (relating to Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission). If the commission determines that one or more, but not all, issues within a proceeding should be dismissed, the commission may issue an interim order dismissing such issues. An interim order issued by the commission resulting in partial dismissal is subject to appeal or reconsideration under §22.123 of this title.
(g) Withdrawal of application. An application may be withdrawn only in accordance with this subsection.
(1) A party that initiated a proceeding may withdraw its application without prejudice to refiling of same, at any time before that party has presented its direct case. A party may agree to withdraw its application with prejudice.
(2) After the presentation of its direct case, but prior to the issuance of a proposed order or proposal for decision, a party may request to withdraw its application with or without prejudice, and withdrawal may be granted only upon a finding of good cause by the presiding officer.
(3) The presiding officer may grant a request to withdraw an application with or without prejudice after a proposed order or proposal for decision has been issued if the request to withdraw is filed by the applicant and the applicant's application would be granted by the proposed order or proposal for decision.
(4) A request to withdraw an application with or without prejudice after a proposed order or proposal for decision has been issued that is filed by an applicant to whom the result of the proposed order or proposal for decision is adverse may be granted only upon a finding of good cause by the commission. In ruling on the request, the commission will weigh the importance of the matter being addressed to the jurisprudence of the commission and the public interest.
(5) A request to withdraw an application with or without prejudice after the application has been placed on an open meeting agenda for consideration of an appeal of an interim order, a request for certified issues, or a preliminary order with threshold legal or policy issues may be granted only upon a finding of good cause by the commission. In ruling on the request, the commission will weigh the importance of the matter being addressed to the jurisprudence of the commission and the public interest.
(6) If a request to withdraw an application is granted, the presiding officer must issue an order of dismissal stating whether the dismissal is with or without prejudice. If the presiding officer finds good cause, the order of dismissal under this paragraph must not be with prejudice, unless the applicant requests dismissal with prejudice. Such order must, if applicable, specify the facts on which good cause is based and the basis of the dismissal and is the final order of the commission subject to motions for rehearing under §22.264 of this title.
§22.182.
(a) Motion for summary decision. The presiding officer, on motion by any party, may grant a motion for summary decision on any or all issues to the extent that the pleadings, affidavits, materials obtained by discovery or otherwise, admissions, matters officially noticed in accordance with §22.222 of this title (relating to Official Notice), or evidence of record show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision in its favor, as a matter of law, on the issues expressly set forth in the motion.
(b) Filing and contents of motion. Any party to a proceeding may move for summary decision on any or all of the issues. The motion must be filed before the close of the hearing on the merits or before the issuance of a proposal for decision or proposed order if no hearing is held, unless the time to file is extended by order of the presiding officer. The party filing the motion must demonstrate that the issue or issues may be resolved by summary decision in accordance with the standard set forth in subsection (a) of this section. Affidavits in support of the motion must be based on personal knowledge and must set forth such facts as would be admissible in evidence. A motion for summary decision must specifically describe the facts upon which the request for summary decision is based, the information and materials which demonstrate those facts, and the laws or legal theories that entitle the movant to summary decision.
(c) Response to motion. Any response to a motion for summary decision must be filed within 20 days from the date of receipt of the motion for summary decision, unless otherwise ordered by the presiding officer. A party opposing the motion must show, by affidavits, materials obtained by discovery or otherwise, admissions, matters officially noticed, or evidence of record, that there is a genuine issue of material fact for determination at the hearing, or that summary decision is inappropriate as a matter of law.
(d) Hearing on the motion not required. While a hearing on the motion for summary decision is not required, the presiding officer may set the motion for a hearing.
(e) No further hearing. No further evidentiary hearing shall be held on issues for which summary decision has been granted.
(f) Action on the motion by administrative law judge. The administrative law judge must issue a proposal for decision if all issues will be resolved by summary decision. The administrative law judge may issue an interim order or a proposal for interim decision if some, but not all, issues will be resolved by summary decision. Such a partial summary decision may result if the motion for summary decision does not include all issues or, if the motion does include all issues, the administrative law judge grants summary decision on some issues and denies summary decision on other issues. Parties may file exceptions and replies to exceptions to a proposal for interim decision recommending resolution of issues by summary decision. An interim order issued by the administrative law judge granting partial summary decision is subject to appeal or reconsideration under §22.123 of this title (relating to Appeal of an Interim Order and Motions for Reconsideration of Interim Order Issued by the Commission).
(g) Action on the motion by the commission. If all issues will be resolved by summary decision, the commission will issue an order that is subject to motions for rehearing under §22.264 of this title (relating to Motions for Rehearing). An interim order issued by the commission granting partial summary decision is subject to reconsideration under §22.123 of this title.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February 26, 2026.
TRD-202600951
Seaver Myers
Rules Coordinator
Public Utility Commission of Texas
Effective date: March 18, 2026
Proposal publication date: September 5, 2025
For further information, please call: (512) 936-7433