Bill Text: TX SB857 | 2023-2024 | 88th Legislature | Introduced

---

Bill Title: Relating to the use of the electric generating facility fund to finance construction and maintenance of electric generating and transmission facilities in the ERCOT power region; authorizing an assessment.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2023-03-01 - Referred to Business & Commerce [SB857 Detail]

Download: Texas-2023-SB857-Introduced.html

---

2023S0114-1 02/10/23
By: Perry S.B. No. 857

A BILL TO BE ENTITLED
AN ACT
relating to the use of the electric generating facility fund to
finance construction and maintenance of electric generating and
transmission facilities in the ERCOT power region; authorizing an
assessment.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subtitle B, Title 2, Utilities Code, is amended
by adding Chapter 34 to read as follows:
CHAPTER 34. ELECTRIC GENERATING FACILITY FUND
Sec. 34.0101. DEFINITIONS. In this chapter:
(1) "Advisory committee" means the Electric
Generating Facility Fund Advisory Committee.
(2) "Fund" means the electric generating facility fund
established by Section 49-q, Article III, Texas Constitution.
(3) "Trust company" means the Texas Treasury
Safekeeping Trust Company.
Sec. 34.0102. FUND. (a) The fund is a special fund in the
state treasury outside the general revenue fund to be administered
and used, without further appropriation, by the commission to
provide loans to finance the construction of electric generating
facilities and associated transmission facilities in the ERCOT
power region. The commission may establish separate accounts in
the fund.
(b) The fund and the fund's accounts are kept and held by the
trust company for and in the name of the commission. The commission
has legal title to money and investments in the fund until money is
disbursed from the fund as provided by this chapter and commission
rules.
(c) Money deposited to the credit of the fund may be used
only as provided by this chapter.
(d) The fund consists of:
(1) money transferred or deposited to the credit of
the fund by or as authorized by law, including money from any source
transferred or deposited to the credit of the fund at the
commission's discretion;
(2) revenue, including the proceeds of any fee,
assessment, or tax imposed by this state, that general law
dedicates for deposit to the credit of the fund; and
(3) investment earnings and interest earned on money
in the fund.
Sec. 34.0103. LOANS. (a) The commission may use money in
the fund to:
(1) make a loan to finance construction or maintenance
of:
(A) a facility that uses natural gas, clean coal,
nuclear energy, or another source of heat to generate electricity;
(B) a hydroelectric generating facility; or
(C) an essential interconnecting transmission
facility necessary to effect a sale of electric energy at wholesale
from a facility described by Paragraph (A) or (B); and
(2) pay the necessary and reasonable expenses of
administering the fund.
(b) An entity is eligible to receive a loan under this
chapter only if the entity is authorized by this title to operate
the type of facility for which the loan is requested.
(c) The commission shall:
(1) require that an applicant for a loan include with
the application proof that the applicant has applied for or been
issued all federal permits required for the operation of the
proposed electric generating or transmission facility; and
(2) give priority to applicants who have been issued
all federal permits required for the operation of the proposed
electric generating or transmission facility.
(d) The amount of a loan for the construction of an electric
generating facility may not exceed 25 percent of the estimated
total cost of constructing the facility.
(e) The commission may make a loan for the maintenance of an
electric generating or transmission facility only if the commission
has determined that the ERCOT power region has emergency reserve
electric generation capacity sufficient to prevent blackout
conditions caused by shortages of generated power in the ERCOT
power region.
(f) The commission:
(1) may use for loans not more than 80 percent of the
fund balance per biennium for facilities that use natural gas,
clean coal, or another source of heat, other than nuclear energy, to
generate electricity;
(2) shall use for loans at least 10 percent of the fund
balance per biennium for nuclear or hydroelectric generating
facilities; and
(3) may use for loans not more than 10 percent of the
fund balance per biennium for transmission facilities described by
Subsection (a)(1)(C).
Sec. 34.0104. MANAGEMENT AND INVESTMENT OF FUND. (a) The
trust company shall hold and invest the fund, and any accounts
established in the fund, for and in the name of the commission,
taking into account the purposes for which money in the fund may be
used. The fund may be invested with the state treasury pool.
(b) The overall objective for the investment of the fund is
to maintain sufficient liquidity to meet the needs of the fund while
striving to preserve the purchasing power of the fund.
(c) The trust company has any power necessary to accomplish
the purposes of managing and investing the assets of the fund. In
managing the assets of the fund, through procedures and subject to
restrictions the trust company considers appropriate, the trust
company may acquire, exchange, sell, supervise, manage, or retain
any kind of investment that a prudent investor, exercising
reasonable care, skill, and caution, would acquire or retain in
light of the purposes, terms, distribution requirements, and other
circumstances of the fund then prevailing, taking into
consideration the investment of all the assets of the fund rather
than a single investment.
(d) The trust company may charge fees to cover its costs
incurred in managing and investing the fund. The fees must be
consistent with the fees the trust company charges other state and
local governmental entities for which it provides investment
management services. The trust company may recover fees it charges
under this subsection only from the earnings of the fund.
(e) The trust company annually shall provide a written
report to the commission and to the advisory committee with respect
to the investment of the fund. The trust company shall contract
with a certified public accountant to conduct an independent audit
of the fund annually and shall present the results of each annual
audit to the commission and to the advisory committee. This
subsection does not affect the state auditor's authority to conduct
an audit of the fund under Chapter 321, Government Code.
(f) The trust company shall adopt a written investment
policy that is appropriate for the fund. The trust company shall
present the investment policy to the investment advisory board
established under Section 404.028, Government Code. The investment
advisory board shall submit to the trust company recommendations
regarding the policy.
(g) The commission annually shall provide to the trust
company a forecast of the cash flows into and out of the fund. The
commission shall provide updates to the forecasts as appropriate to
ensure that the trust company is able to achieve the objective
specified by Subsection (b).
(h) The trust company shall disburse money from the fund as
directed by the commission.
(i) An investment-related contract entered into under this
section is not subject to Chapter 2260, Government Code.
Sec. 34.0105. ELECTRIC GENERATING FACILITY FUND ADVISORY
COMMITTEE. (a) The advisory committee is composed of the following
seven members:
(1) the comptroller or a person designated by the
comptroller;
(2) three members of the senate appointed by the
lieutenant governor, including:
(A) a member of the committee of the senate
having primary jurisdiction over matters relating to the generation
of electricity; and
(B) a member of the committee of the senate
having primary jurisdiction over finance; and
(3) three members of the house of representatives
appointed by the speaker of the house of representatives,
including:
(A) a member of the committee of the house of
representatives having primary jurisdiction over the generation of
electricity; and
(B) a member of the committee of the house of
representatives having primary jurisdiction over finance.
(b) The commission shall provide staff support for the
advisory committee.
(c) An appointed member of the advisory committee serves at
the will of the person who appointed the member.
(d) The lieutenant governor shall appoint a co-presiding
officer of the advisory committee from among the members appointed
by the lieutenant governor. The speaker of the house of
representatives shall appoint a co-presiding officer of the
committee from among the members appointed by the speaker.
(e) The advisory committee may hold public hearings, formal
meetings, or work sessions. Either co-presiding officer of the
advisory committee may call a public hearing, formal meeting, or
work session of the advisory committee at any time. The advisory
committee may not take formal action at a public hearing, formal
meeting, or work session unless a quorum of the committee is
present.
(f) Except as otherwise provided by this subsection, a
member of the advisory committee is not entitled to receive
compensation for service on the committee or reimbursement for
expenses incurred in the performance of official duties as a member
of the committee. Service on the advisory committee by a member of
the senate or house of representatives is considered legislative
service for which the member is entitled to reimbursement and other
benefits in the same manner and to the same extent as for other
legislative service.
(g) The advisory committee:
(1) may provide comments and recommendations to the
commission for the commission to use in adopting rules regarding
the use of the fund or on any other matter; and
(2) shall review the overall operation, function, and
structure of the fund at least semiannually.
(h) The advisory committee may adopt rules, procedures, and
policies as needed to administer this section and implement its
responsibilities.
(i) Chapter 2110, Government Code, does not apply to the
size, composition, or duration of the advisory committee.
(j) The advisory committee is subject to Chapter 325,
Government Code (Texas Sunset Act). Unless continued in existence
as provided by that chapter, the advisory committee is abolished
and this section expires September 1, 2033.
Sec. 34.0106. RULES. (a) The commission by rule may
establish procedures for:
(1) the application for and award of a loan under this
chapter; and
(2) the administration of the fund.
(b) The commission shall give full consideration to
comments and recommendations of the advisory committee before it
adopts rules under this chapter.
Sec. 34.0107. ELECTRIC GENERATING FACILITY FUND
ASSESSMENT. (a) An assessment is imposed on the gross receipts of
each retail electric provider providing retail service in the ERCOT
power region.
(b) The commission shall impose the assessment as a
percentage of gross receipts from rates charged to an ultimate
consumer in the ERCOT power region and establish the percentage at a
rate to ensure that the balance of the fund is sufficient to provide
funding for the construction of electric generating facilities to
provide emergency reserve generation capacity sufficient to
prevent blackout conditions caused by shortages of generated power
in the ERCOT power region. The commission may establish different
assessments for gross receipts from rates charged to commercial and
residential customers.
(c) A retail electric provider may collect from its
customers the assessment imposed under this section as an
additional item separately stated on the customer bill as "electric
generating facility fund assessment."
(d) The comptroller shall collect the assessment and any
penalty or interest due under this chapter and deposit the money
collected in the fund on a schedule determined by the comptroller.
The comptroller may impose a late payment penalty of not more than
10 percent of the amount due for a late payment of an assessment
required under this chapter. The comptroller may collect interest
on an assessment payment that is delinquent for more than 30 days at
an annual rate of 12 percent on the amount of the assessment and any
penalty due.
SECTION 2. This Act takes effect on the date on which the
constitutional amendment proposed by the 88th Legislature, Regular
Session, 2023, providing for the creation of the electric
generating facility fund to finance construction and maintenance of
electric facilities is approved by the voters. If that amendment is
not approved by the voters, this Act has no effect.