53 S.W.3d 310 | Tex. | 2001
Lead Opinion
delivered the opinion of the Court,
The Texas Legislature enacted the Public Utility Regulatory Act of 1995 (PURA95) to promote competition in the wholesale electricity market.
I. BACKGROUND
The electric industry has three principal components: power generation, power transmission, and power distribution. Transmission, the component at issue in this case, involves transporting electricity over a utility’s power lines. Texas’s elec-trie utilities have voluntarily interconnected their transmission systems, enhancing reliability and providing opportunities for utilities to purchase power from one another. This interconnected network of transmission lines forms a single grid within the state, known as the Electric Reliability Council of Texas (ERCOT). Although two other regional power grids serve parts of the state, ERCOT serves the majority of the state. In addition, because ERCOT is a wholly intrastate power grid, the federal scheme that the Federal Energy Regulatory Commission (FERC) administers does not generally govern ERCOT.
Power can be moved from any point on the ERCOT grid to any other point on the grid. When a utility purchases wholesale electric power, that power must be transported from the seller to the buyer. Because not all wholesale transactions occur between a buyer and seller whose transmission networks are directly interconnected, and because some power generators own no transmission lines, buyers and sellers must often transmit or “wheel” power across transmission facilities belonging to third parties. Before PURA95, utilities in ERCOT provided wholesale transmission services to each other primarily on an individual, contractual basis.
II. PURA95
With PURA95, the Legislature endeavored to establish competition in the wholesale electricity market. The Legislature amended the existing Public Utility Regulatory Act (PURA) by adding provisions that in 1997 were codified at Subchapter A of Chapter 85 of the Utilities Code.
First, the amendments authorize the Commission to “require a utility ... to provide transmission service at wholesale to another utility,” and to “determine whether the terms and conditions for the transmission service are reasonable.”
Central to this dispute, PURA95 also provides that “[t]he [Commission shall adopt rules ... relating to wholesale transmission service, rates, and access.”
III. THE COMMISSION’S RULES
Responding to PURA95’s command, the Commission adopted transmission rules 23.67 and 23.70, effective in March 1996.
Rather, the parties challenge the other seventy percent of the facilities charge. This remaining part is called the “access fee.” The access fee is based on each utility’s percentage of use of the ERCOT grid.
After promulgating its new rules, the Commission held a series of contested-case hearings to set the specific facilities charge for each utility. The Commission based the total revenue each utility was to receive on the ratio of its transmission costs to the total system-wide transmission costs.
IV. THE LAWSUIT
Respondents City Public Service Board of San Antonio (San Antonio) and HL & P sued the Commission in separate actions, seeking a declaration that the rules were invalid. The two cases were consolidated, and a number of parties appeared and aligned themselves with the Commission to defend the rules.
San Antonio and HL & P appealed. Concluding that the Act did not give the Commission express authority to set wholesale transmission rates, the court of appeals reversed the trial court’s judgment and rendered judgment that subsections (f), (g), (h), (i), (j), and (m) of Rule 23.67 and subsections (j) and (o) of Rule 23.70 are invalid.
Y. STANDARD OF REVIEW
Our first question is what standard to apply to decide whether the Commission’s rules exceed the authority the Legislature gave the Commission in PURA95. In invalidating the rules, the court of appeals relied on this Court’s opinion in Humble Oil and Refining Company v. Railroad Commission of Texas.
The Commission argues that the court of appeals erred in examining PURA95 under a “super standard” to determine whether the Legislature clearly and explicitly authorized the Commission to set rates. The true test of whether its rules are permissible, the Commission says, is whether the rules are in harmony with the statute, regardless of how vague or explicit the statute is. San Antonio and HL & P counter that the court of appeals correctly followed Humble Oil, which confirmed that the power to set rates is unique and cannot be conferred except by explicit language.
Despite some suggestive language, however, Humble Oil established no special rule for conferring ratemaking power. In fact, Humble Oil fits within the ordinary rules we apply to decide whether a state agency has exceeded its authority. The basic rule is that a state administrative agency has only those powers that the Legislature expressly confers upon it.
Although it was decided more than sixty years ago, we have not cited Humble Oil in more than a handful of cases, and not for the proposition that a different rule governs when a state agency establishes rates.
But, as noted earlier, when the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties.
Applying the rules in this case, we must first ask whether the Legislature expressly gave the Commission the power to set wholesale transmission rates for all utilities. If not, we must ask whether that power is reasonably necessary for the Commission to fulfill the express functions and duties the Legislature did give it.
VI. DO THE RULES SET RATES?
Another point we consider is whether Rules 23.67 and 23.70 set rates at all. The Commission argues that the rules do not set rates, but merely establish a pricing methodology. According to the Commission, it set any actual rates in a series of contested-case hearings to which the rules required all utilities to submit.
PURA’s definition of “rate” is broad:
‘Rate’ includes a compensation, tariff, charge, fare, toll, rental, or classification that is directly or indirectly demanded, observed, charged, or collected by an electric utility for a service, product, or commodity ... and a rule, practice, or contract affecting the compensation, tariff, charge, fare, toll, rental, or classification that must be approved by a regulatory authority.36
Under this definition, the Commission’s rules set rates.
The rules require each ERCOT grid utility to pay each other utility in the grid a facilities charge for wholesale transmission service.
VII. DOES THE COMMISSION HAVE THE POWER TO SET RATES?
The Commission argues that the court of appeals erred in holding that the Commission has no statutory authority to set wholesale transmission rates. The Commission contends that PURA95 explicitly gives it such authority. Even if PURA95 does not, the Commission asserts that it has always had ratemaking power at least for HL & P, because HL & P is an investor-owned utility traditionally subject to the Commission’s jurisdiction to establish rates. As we will explain, we agree that the Commission has the power generally to set HL & P’s rates for wholesale transmission service, and that the court of appeals erred in this respect. But we do not agree that the same rationale applies to San Antonio, a municipally owned utility-
The court of appeals erred when it looked only to chapter 35’s provisions to find ratemaking authority. The statute must be construed as a whole, and PURA as a whole gives the Commission broad power over certain electric utilities, including investor-owned utilities like HL & P. This power includes the explicit authority to “establish and regulate rates,” found in chapter 36.
any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utility’s duties under this title to its patrons, employees, other public utilities, and the public.41
This definition encompasses wholesale transmission service that one utility supplies to another.
Further, chapter 36 specifies that “[a]n electric utility may not charge or receive a rate for utility service except as provided by this title.”
[i]n establishing an electric utility’s rates, the regulatory authority shall establish the utility’s overall revenues at an amount that will permit the utility a reasonable opportunity to earn a reasonable return on the utility’s invested capital used and useful in providing service to the public in excess of the utility’s reasonable and necessary operating expenses.43
In view of these statutory provisions, we conclude that chapter 36 permits the Commission to set rates for wholesale transmission service provided by investor-owned utilities.
The chapter further states that the Commission “shall ensure” that the rate a utility demands or receives “is just and reasonable.”
In fact, HL & P specifically concedes that chapter 36 gives the Commission the authority to set its wholesale transmission rates. It now argues, however, that the Commission may not set these rates by a statewide rule, but only in a contested-case hearing as chapter 36 requires. But HL & P did not raise this point as a ground for summary judgment in the trial court, and did not argue it before the trial court or the court of appeals. We therefore decline to address it.
San Antonio, however, is another matter. San Antonio is a municipally owned utility, and PURA treats municipally owned utilities differently from investor-owned utilities. Throughout most of PURA, including chapter 36, the term “electric utility” excludes municipally owned utilities like San Antonio.
But chapter 35, in contrast to the rest of PURA, specifically includes municipally owned utilities in its definition of “electric utility.”
First, chapter 35 lacks the clear language the Legislature used in chapter 36 — nowhere does chapter 35 give the Commission the explicit power to “establish and regulate rates.”
Moreover, the specific powers that chapter 35 gives the Commission do not necessarily imply the authority to set rates. The Commission is to “adopt rules relating to wholesale transmission service, rates and access,” which must be consistent with chapter 35’s standards.
Similarly, the specific power to review rates for reasonableness, which chapter 35 explicitly gives the Commission, is distinct from the power to set rates in the first instance.
Chapter 35 gives the Commission other express powers as well. The Commission is to ensure that all utilities provide nondiscriminatory access to transmission service.
An argument is made that, because the Commission may decide whether the terms of service are reasonable, it may determine in advance that, in every case, the postage-stamp method is the only reasonable one for setting rates. This argument does not comport with the limited authority that chapter 35 gives the Commission that we have just described. For if the Commission has the authority initially to set rates, then it could of course predetermine what rate is reasonable. Absent the authority to set rates, though, it is not at all certain that the Commission could set a blanket rate.
Finally, the Commission may require that parties to a dispute “concerning prices or terms of wholesale transmission service” engage in a nonbinding dispute resolution process before coming to the Commission to resolve the dispute.
In sum, we agree with the court of appeals that chapter 35 envisions largely an oversight role for the Commission with respect to wholesale transmission transactions.
The Commission further argues that minor changes made to chapter 35 in the codification process demonstrate that the Legislature approved its rules. In section 2.057(a) of PURA95 as originally enacted, the Commission was instructed to adopt rules relating to wholesale transmission service, rates, and access “within 180 days of the effective date of this section....”
The Commission also points to the fact that section 2.057(a) commanded utilities to file their tariffs “within 60 days after the commission has adopted transmission pricing and access rules pursuant to this section....”
Thus, we conclude that PURA95, as originally enacted and codified, did not give the Commission any authority to set wholesale transmission rates for municipally owned utilities, including San Antonio. But the Commission retains its existing authority to set wholesale transmission rates for investor-owned utilities, including HL & P, pursuant to chapter 36.
VIII. RESPONDENTS’ CHALLENGE TO THE ACCESS FEE
Our conclusion that the Commission lacks authority under chapter 35 to set rates for San Antonio means we need not reach San Antonio’s remaining issues. For its part, HL & P argues that, even if the Commission had the authority to set its wholesale transmission rates generally (which HL & P has conceded), the Commission exceeded that authority in creating the “access fee” portion of the facilities charge, because the access fee violates a variety of PURA95’s requirements. The Commission contends that we should remand this issue to the court of appeals, which did not reach it. Because the Legislature has already amended the statute in ways which limit the relevance of this case to the 1996-1999 time period, there is nothing to be gained by a remand but further delay. We will therefore consider the issue.
HL & P argues that the access fee is inconsistent with PURA95’s provisions because it creates subsidies among utilities, and because it does not set rates for wholesale transmission service that are comparable with each utility’s use of its own system. We agree that the access fee does not comport with the statute.
A. Costs and Service
The access fee is inconsistent with the statute because it requires payments with
The end result of the access fee requirement is that some utilities pay out more for transmission service than they recover. Thus, as a practical matter, these utilities do not recover their transmission costs from the entities for whom wholesale transmission is provided, contravening the statute.
The Commission argues that the access fee is consistent with PURA95. First, it points out that in Rule 23.67(o), which has not been challenged, it required all utilities to make filings with the Commission separating out their component costs for generation, distribution and transmission operations.
Second, the Commission argues that VAMM does not accurately measure the effects one utility’s transmissions have on another utility’s lines at all times. Rather, VAMM is a “snapshot” of usage at one
Third, the Commission insists that the access fee fosters wholesale competition because any utility in ERCOT can buy power from any other utility on the grid without having to factor in transmission costs. The access fee is constant regardless of the distance power must travel or how many wholesale transactions a utility conducts.
We are not persuaded by the Commission’s arguments. With respect to unbun-dling, Rule 23.67(b) does not require the transmission-providing and transmission-consuming operations of a utility to be treated as separate companies. Rather, it is the transmission operations and the wholesale purchase and sale activities that are to be separated.
With respect to VAMM, certainly the Commission itself thought the method sufficient to measure one utility’s effects on another for purposes of setting the impact fee. Indeed, in adopting the method, the Commission said:
The [VAMM] method measures all changes in the use of the transmission lines; it is more stable than the other variants of the megawatt-mile methodology; it will aid in accurate transmission pricing; and it sends the appropriate price signals to generators and loads.89
Moreover, in the Commission’s own words, “while a utility such as HL & P may own transmission lines that connect all of its generators to its loads, the power produced by its generators may actually flow over both its own transmission lines and the transmission lines of neighboring utilities.”
Finally, although the access fee may encourage wholesale competition, that cannot make up for the fact that it violates the explicit command that the rules be consistent with PURA95’s standards. As we noted earlier, an administrative agency may not exercise a new power, or one that is inconsistent with the agency’s statutory mandate, simply because the agency perceives that power as expedient.
B. Comparability
HL & P also argues that the access fee violates PURA95’s mandate that the rates a utility charges for wholesale transmis
C. Legislative Acceptance
Petitioner Texas-New Mexico Power Company offers an additional argument in support of the rules. It asserts that the Legislature accepted the Commission’s construction of PURA95 when it codified the statute in 1997. But the doctrine of legislative acceptance applies when an agency interpretation of an ambiguous statute has been in effect for a long time and the Legislature re-enacts the statute without change.
In the 1999 amendments to chapter 35, the Legislature specified that the Commission:
shall price wholesale transmission services within ERCOT based on the postage stamp method of pricing under which a transmission-owning utility’s rate is based on the ERCOT utilities’ combined annual costs of transmission divided by the total demand placed on the combined transmission systems of all such transmission-owning utilities within a power region.94
Thus, the Legislature has now affirmatively told the Commission to price wholesale transmission services entirely by the postage stamp method previously used to set only the access fee.
The parties agree that, following this change, the Commission has the authority to set rates for both investor-owned and municipally owned utilities using the postage stamp method.
The Commission also points out that, although the Legislature added the postage stamp provision, it did not change
Because we have determined that the access fee is inconsistent with the statute’s command, we do not reach the further question of whether the rules are contrary to federal law. If, as the Commission argues, the access fee is consistent with orders from the FERC, that still cannot supply statutory authority that our own Legislature has not given. We express no opinion on the court of appeals’ discussion of this point.
Finally, the Commission argues that, even if the access fee portions of the rules are invalid, the court of appeals erred in striking Rule 23.67(m) because that rule does nothing more than articulate the statutory requirement that all utilities file tariffs. But in fact the rule mandates that tariffs “shall comply with the provisions of this rule,” many of which are invalid. Thus, because Rule 23.67(m) requires compliance with invalid portions of the rules, Rule 23.67(m) itself is invalid.
IX. CONCLUSION
Because the Commission exceeded its statutory authority in (1) establishing wholesale transmission rates for municipally owned utilities and (2) establishing the access fee, subsections(f), (g), (h), (i), (j) and (m) of Rule 23.67, and subsections (j) and (o) of Rule 23.70, are invalid. We therefore affirm the court of appeals’ judgment.
. See Tex. UtiiXode § 35.002.
. Id. § 35.006(a).
. 9 S.W.3d 868, 877-78.
. See Tex.Rev.Civ. Stat. Ann. art. 1446c-0 §§ 2.056-2.057, codified at Tex. Util.Code §§ 35.001-008. The Legislature again amended PURA in 1999. Cites in this opinion are to the pre 1999 version of the act unless otherwise noted.
. Tex.Rev.Civ. Stat. Ann. art. 1446c-0 § 2.056(a), codified at Tex. Util.Code § 35.005(a).
. Id. § 2.057(a), codified at Tex. Util.Code § 35.004(a).
. Id., codified at Tex. Util.Code § 35.004(b).
. Id. § 2.057(c), codified at Tex. Util.Code § 35.004(c).
. Id. § 2.057(a), codified at Tex. Util.Code § 35.006(a).
. Id.
. Tex.Rev.Civ. Stat. Ann. art. 1446c-0 § 2.057(a), codified at Tex. Util.Code § 35.007(a).
. Id. § 2.057(d), codified at Tex. Util.Code § 35.008.
. See 21 Tex. Reg. 1397 (1996), adopting 16 Tex. Admin. Code § 23.67 (Rule 23.67), and 21 Tex. Reg. 3343 (1996), adopting 16 Tex Admin. Code § 23.70 (Rule 23.70). The rules have been recodified at 16 Tex Admin. Code §§ 25.5, 25.191.198 and 25.200-.204. See 24 Tex. Reg. 2873 (1999). Subsequent amendments to the rules are not relevant to this dispute. References in this opinion are to the 1996 version of the rules.
. 16 Tex. Admin. Code § 23.67(g).
. Id. § 23.67(g)(1).
. See id. §§ 23.67(g)(6), 23.70(o).
. See 21 Tex. Reg. 1403.
. 16 Tex. Admin. Code § 23.67(g)(1).
. See id.
. 16 Tex. Admin. Code § 23.67(j)(l).
. See Tex. Pub. Util. Comm'n, Regional Transmission Proceeding to Establish Statewide Load Flow Pursuant to Subst. R. 23.67, Attachment D, Docket No. 15840 (final order)(August 11, 1997).
. 16 Tex. Admin. Code § 23.67(g)(1).
. Those parties, petitioners here alongside the Commission, are Brazos Electric Power Cooperative, Inc., City of Austin, Lower Colorado River Authority, Public Utilities Board of City of Brownsville, Rayburn Country Electric Cooperative, Tex La Electric Cooperative, Inc., East Texas Electric Cooperative, Inc., Houston County Electric Cooperative, Inc., Deep East Texas Electric Cooperative, Inc., Cherokee County Electric Cooperative Association, Texas New Mexico Power Company, and South Texas Electric Cooperative, Inc. Petitioners are referred to collectively as "the Commission.”
. 9 S.W.3d 868, 877-78.
. 133 Tex. 330, 128 S.W.2d 9 (1939).
. 9 S.W.3d at 874 (citing Humble Oil, 128 S.W.2d at 15).
. Public Util. Comm’n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex.1995); see also State v. Public Util. Comm’n, 883 S.W.2d 190, 194 (Tex.1994).
. GTE-Southwest, 901 S.W.2d at 407 (quoting Kawasaki Motors v. Motor Vehicle Comm’n, 855 S.W.2d 792, 797 (Tex.App.—Austin 1993, no writ)).
. See Railroad Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 686-87 (Tex.1992); Railroad Comm’n v. City of Austin, 524 S.W.2d 262, 267 (Tex.1975); Key Western Life Ins. Co. v. State Bd. of Ins., 163 Tex. 11, 350 S.W.2d 839, 848 (1961); Board of Ins. Comm’rs v. Guardian Life Ins. Co. of Tex., 142 Tex. 630, 180 S.W.2d 906, 908 (1944).
. GTE-Southwest, 901 S.W.2d at 406; see also Public Util. Comm’n, 883 S.W.2d at 194.
. See GTE-Southwest, 901 S.W.2d at 407; Public Util. Comm’n, 883 S.W.2d at 194.
. GTE-Southwest, 901 S.W.2d at 407 (quoting Kawasaki Motors v. Motor Vehicle Comm’n, 855 S.W.2d 792, 797 (Tex.App.—Austin 1993, no writ)).
. Id. (quoting Sexton v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137-38 (Tex.App.—Austin 1986, writ ref'd n.r.e.)).
. Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993).
. See 16 Tex. Admin. Code § 23.67(g)(1), (m).
. Tex. Util.Code § 31.002(6), formerly Tex. Rev.Civ. Stat. Ann. art. 1446c-0 § 2.0011(6).
. 16 Tex. Admin. Code § 23.67(g).
. Tex. Util.Code § 31.002(6).
. Id. § 36.001(a).
. Id. § 31.002(6); see supra Section VI.
. Id. § 11.003(18) (emphasis added).
. Tex. UtiiXode § 36.002.
. Id. § 36.051 (emphasis added).
. Id. § 36.003(a).
. Id. § 36.003(b).
. Id. § 36.051.
. Id. §§ 36.052-36.053.
. Id. § 36.052(3).
. See, e.g., id. §§ 36.054-.064.
. See 9 S.W.3d at 874.
. Id. § 31.002(1).
. Id. § 32.002.
. See, e.g., id. §§ 33.002(a)-(b), 33.051, 33.052, 33.054.
. Id. § 35.001.
. See GTE-Southwest, 901 S.W.2d at 407.
. Tex. Util.Code § 36.001(a).
. Id. § 35.001.
. Id. § 35.006(a).
. See Commercial Standard Ins. Co. v. Bd. of Ins. Comm'rs, 34 S.W.2d 343, 344 (Tex.App.—Austin 1930, writ ref'd).
. 16 Tex. Admin. Code § 23.67(d).
. Id. § 23.67(e).
. Id. § 23.67(o).
. See State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 529-30 (Tex.1975).
. 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).
. 920 S.W.2d 274, 278-79 (Tex.1996).
. 9 S.W.3d at 876-77.
. Tex. Util.Code § 35.004(b).
. Id. § 35.005(a).
. Id. § 35.004(c).
. Id. § 35.008.
. See Tex. Gov't Code § 311.021(2); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).
. See 9 S.W.3d at 874-75.
. Tex. Util.Code §§ 35.004(c), 35.005(a).
. Id. § 35.008.
. See id. § 35.004(a)-(c).
. Tex.Rev.Civ. Stat. Ann. art. 1446c-0 § 2.057(a).
. Id.
. See Tex.R.App. P. 53.4.
. See Tex. Util.Code § 35.004(a).
. See 21 Tex. Reg. 1404.
. See Tex. Pub. Util. Comm'n, Regional Transmission Proceeding to Establish Statewide Load Flow Pursuant to Subst. R. 23.67, Attachment D, Docket No. 15840 (final order)(August 11, 1997), compare "Postage Stamp Component of TCOS” with "Summary of Megawatt Mile Impact.”
. See id.
. Tex. Util.Code § 35.004(c).
. See 21 Tex. Reg. 1403.
. Tex. Util.Code § 35.004(c).
. 16 Tex. Admin. Code § 23.67(o).
. Id. § 23.67(o)(l).
. Id.; see also 21 Tex. Reg. 1410.
. 21 Tex. Reg. 1403 (emphasis added).
. Id. at 1404 (emphasis added).
. GTE-Southwest, 901 S.W.2d at 407.
. See Tex. Util.Code §§ 36.051, 36.053.
. See Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 248 (Tex.1991).
. Tex. Util.Code § 35.004(d), amended by Acts 1999, 76th Leg., ch. 405, § 17.
. See also Tex. Util.Code §§ 40.004(1), 40.055(a)(1), added by Acts 1999, 76th Leg., ch. 405, § 39.
. See Tex. Gov’t Code § 312.014.
Dissenting Opinion
dissenting.
I respectfully dissent.
In 1995, the Legislature enacted what is now chapter 35 of the Texas Utilities Code, directing the Public Utility Commission to “adopt rules ... relating to wholesale [electric] transmission service, rates, and access.”
The Court concludes that the Commission had no such authority for two reasons. First, the Court says that the access fee was a rate and the 1995 statute did not empower the Commission to adopt rates. The authority to “adopt rules relating to rates”, the Court says, is not the authority to “adopt rates”, contrasting the explicit “establish and regulate rates” language of chapter 36.
Second, the Court says that the Commission’s rules conflict with three provisions of the statute. One is that “[t]he commission may require that each party to a dispute concerning prices or terms of wholesale transmission service engage in a nonbinding alternative dispute resolution process before seeking resolution of the dispute by the commission.”
More importantly, however, by the 1999 amendment the Legislature required that transmission service rates be set entirely — not just seventy percent — using the postage stamp method without changing
The Court says that we must presume that the Legislature intended by its 1999 amendments to change the law. I do not see how we can possibly tell whether the Legislature intended a change, or a correction, or something else entirely. Neither the Court nor the parties have pointed to any legislative history that could provide an answer. What can be said with absolute certainty, however, is that the Legislature determined in 1999 that the Commission’s postage stamp rate was consistent with the overall scheme of chapter 35 and the best way to achieve its purposes. In light of that determination, I do not understand how it is possible to conclude, as the Court does, that the exact same statute in 1995, minus the provision added in 1999, prohibited the Commission’s postage stamp rate methodology.
I would reverse the judgment of the court of appeals and affirm the judgment of the district court upholding the Commission’s rules.
.Public Utility Regulatory Act of 1995, 74th Leg., R.S., ch. 765, § 2.08, 1995 Tex. Gen. Laws 3972, 4000, codified as Tex. Util.Code §§ 35.001-008. All statutory references are to the Texas Utilities Code.
. Rule 23.67, 21 Tex. Reg. 1397, amended by 21 Tex. Reg. 8500 (1996), and Rule 23.70, 21 Tex. Reg. 3343 (1996), formerly codified as 16 Tex. Admin. Code §§ 23.67 and 23.70, and both repealed by 24 Tex. Reg. 2873 (1999).
. Electric Reliability Council of Texas.
. Tex. Util.Code § 36.001(a).
. Tex. Util.Code § 35.005(a).
. Ante at 322.
. Tex. Util.Code § 35.005(a).
. Id. § 35.008.
. Id. § 35.004(a).
. Id. § 35.004(c).
. See City of Corpus Christi v. Public Utility Comm'n, 51 S.W.3d 231, 246 (Tex.2001).