For the most part, HB 1600, the Public Utility Commission (PUC) Sunset bill, is non-controversial. The largest portion of the bill deals with moving the authority over water rates from the Texas Commission on Environmental Quality to the PUC.
However, the granting of emergency cease and desist authority in this bill is a problem. HB 1600 would give the PUC the authority to issue a cease and desist order on its own authority without going to district court. The PUC could also issue a cease and desist order without providing notice to the company or without providing the company an opportunity for a hearing. Only if “practicable” would a company have an opportunity for notice or a hearing.
In other words, HB 1600 grants the PUC the ability to issue an emergency cease and desist order without offering-or even having-evidence of problems in the market place. It would allow the PUC to stop a business from engaging in a commercial activity without providing any evidence of a violation and without the business being able to defend itself until it has lost a significant amount of money.
The Foundation objects to granting emergency cease and desist authority to the PUC in general-it is unjustified given the facts. In addition, the PUC can walk into a court room today and within an hour or two of discovering a problem obtain a temporary restraining order. This provision is particularly worrisome at a time when the primary challenge facing state policymakers is maintaining reliability in the face of government intervention in the Texas electricity market.
However, the most troublesome part of the provision is the ability of the PUC to issue an emergency cease and desist order without notice, hearing, or going to court. According to the language in the bill, such an order could be issued even if the alleged behavior did not represent an immediate or imminent threat of harm.
An amendment may be offered on the Senate floor by Sen. Estes to help ensure that emergency cease and desist authority is only used without notice when a threat is “immediate” or “imminent.” The Foundation urges the adoption of the Estes amendment.