O33 C -2
CITY OF KENNEDALE
ORDINANCE NO. 33
AN ORDINANCE DENYING THE PROPOSED CHANGED RATE SCHEDULES AND
SERVICE REGULATIONS OF TEXAS UTILITIES ELECTRIC COMPANY, PROVIDING
CONDITIONS UNDER WHICH SAID COMPANY'S RATE SCHEDULES AND SERVICE
REGULATIONS MAY BE CHANGED, MODIFIED, AMENDED OR WITHDRAWN, FINDING
AND DETERMINING THAT THE MEETING AT WHICH THIS ORDINANCE IS PASSED
IS OPEN TO THE PUBLIC AS REQUIRED BY LAW, AND DECLARING AN
EFFECTIVE DATE OF THIS ORDINANCE.
BE IT ORDAINED BY THE CITY KENNEDALE OF THE CITY OF
KENNEDALE , TEXAS:
SECTION 1. Because on January 22, 1993, Texas Utilities
Electric Company filed with the Governing Body of this municipality
and simultaneously with the Public Utility Commission of Texas a
virtually identical Petition and Statement of Intent with proposed
changes in the rate schedules and service regulations of said
Company, and because it is in the best interest of this
municipality, its citizens, and said Company to avoid the expense
of a full investigation at the municipal level since all issues
pertinent to this particular Petition and Statement of Intent will
be thoroughly investigated at the said Commission, the proposed
changed rate schedules and service regulations filed with the
Governing Body of this municipality on January 22, 1993, are hereby
denied and disapproved so that same can be more economically
investigated at the said Commission, and the said Company shall
continue to provide electric service within this municipality in
accordance with its rate schedules and service regulations in
effect within this municipality on January 22, 1993, until such
time as said rate schedules and service regulations may be changed,
modified, amended or withdrawn with the approval of the Governing
Body of this municipality.
SECTION 2. Nothing in this Ordinance contained shall be
construed now or hereafter as limiting or modifying in any manner,
the right and power of the Governing Body of this municipality
under the law to regulate the rates, operations, and services of
Texas Utilities Electric Company.
SECTION 3. That it is hereby officially found and determined
that the meeting at which this Ordinance is passed is open to the
public and as required by law and that public notice of the time,
place and purpose of said meeting was given as required.
SECTION 4. This Ordinance shall be effective on the date of
the passage and approval hereof.
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PASSED AND APPROVED at a Regular Meeting of the City
Council of the City of Kennedale , Texas on
this the llth day of February , 1993.
dildr
Mayor Bill Abbott
ATTEST:
•
Secretary
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DOCKET NO. 11735
PETITION OF TEXAS UTILITIES § BEFORE THE
ELECTRIC. COMPANY TO REVIEW §
THE FINAL•DECISION AND ACTION §
OF THE CITY OF § PUBLIC UTILITY COMMISSION
KENNEDALE , TEXAS, §
AND SET INTERIM RATES WITHIN §
SAID MUNICIPALITY § OF TEXAS
PETITION FOR REVIEW AND FOR SETTING
INTERIM RATES AND MOTION TO CONSOLIDATE
TO THE HONORABLE PUBLIC UTILITY COMMISSION OF TEXAS:
Comes Now Texas Utilities Electric Company (TU Electric), a
corporation organized and existing under the laws of the State of
Texas and a public utility as that term is defined in the Public
Utility Regulatory Act, Tex. Rev. Civ. Stat. Ann. art. 1446c
(Vernon Supp. 1992) (PURA), and files this its Petition for Review
of the action of the above - referenced Municipality on TU Electric's
Petition and Statement of Intent filed with said Municipality on
January 22, 1993, its request for interim rates to be charged all
customers and classes of customers within said Municipality, and
its Motion to Consolidate, respectfully showing the following:
I.
TU Electric's business address and telephone number are:
Texas Utilities Electric Company
2001 Bryan Street
Dallas, Dallas County, Texas 75201
Telephone: (214) 812 -4600
TU Electric's authorized representatives are:
Ronald D. Keeney
Director of Regulatory Services
Texas Utilities Electric Company
2001 Bryan Street, Suite 2100
Telephone: (214) 812 -2778
and
` f
Robert A. Wooldridge
J. Dan Bohannan
Robert M. Fillmore
Worsham, Forsythe, Sampels & Wooldridge
2001 Bryan Street, Suite 3200
Dallas, Dallas County, Texas 75201
Telephone: (214) 979 -3000
General inquiries concerning this Petition should be directed to
Mr. Keeney at the above address and telephone number. All
pleadings, motions, orders and other documents filed in this
proceeding should be served upon Mr. Bohannan at the above - stated
address.
II.
The Commission has jurisdiction of the parties and the subject
matter of this Petition by virtue of Sections 16(a), 17(d), 26(a),
26(f), 26(g), 37, 38, 39 and 43(g) of the PURA.
III.
All of TU Electric's customers and classes of customers within
said Municipality will be affected if this Petition is granted.
The address of the Municipality is as follows:
City of Kennedale
209 N. New Hope Road
Kennedale, Texas 76060
There were no parties, other than TU Electric, to the proceeding
before said Municipality from which this appeal is taken except as
may be listed in the Certificate of Service below.
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IV.
On January 22, 1993, TU Electric filed a Petition and
Statement of Intent, together with supporting testimony and a
complete Rate Filing Package, with the Governing Body of said
Municipality seeking authority to change its rates. Said Petition
and Statement of Intent, supporting testimony and Rate Filing
Package are identical in all material respects to the filing before
this Commission on January 22, 1993, in Docket No. 11735. TU
Electric incorporates by reference herein TU Electric's complete
filing and the record in said Docket No. 11735, as authorized by
this Commission's Rule of Practice and Procedure, § 21.68. The
specific relief requested by TU Electric's January 22, 1993, filing
with said Governing Body was denied. A true and correct copy of
the final decision and action of said Governing Body, appealed from
herein, will be submitted to the Commission upon TU Electric's
receipt of same. TU Electric's rates authorized by said decision
and action are wholly inadequate to assure confidence in TU
Electric's financial integrity so as to permit it to attract
capital on reasonable terms, and are so low that TU Electric will
be deprived of a reasonable opportunity to earn a reasonable return
on its invested capital used and useful in rendering service to the
public over and above its reasonable and necessary operating
expenses. Said rates thus do not comply with the mandate of the
PURA, are unlawful, and result in the taking and confiscation of TU
Electric's property in violation of TU Electric's rights guaranteed
by the laws of this State, by Article 1, Sections 13, 17 and 19, of
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1 }
the Constitution of the State of Texas, and by the Fifth and
Fourteenth Amendments to the Constitution of the United States.
Moreover, the implementation and application of rates pursuant to
the decision and action of said Municipality would result in
customers of TU Electric paying different rates for the same
electric service depending upon their geographical location,
resulting in misunderstanding and dissatisfaction among TU
Electric's customers and increased costs and administrative burdens
to TU Electric. This Commission, therefore, should fix such just
and reasonable rates as said Municipality should have fixed, as is
required by Section 26(g) of the PURA.
V.
TU Electric further requests that -- to the extent necessary
to assure that the rates applicable to TU Electric's customers and
classes of customers within said Municipality are at all times
identical to those rates applicable to TU Electric's customers and
classes of customers situated within the areas subject to the
original jurisdiction of this Commission -- interim rates be set to
be effective at such time and in such amounts in said Municipality
as changed rates are implemented in said areas subject to the
original jurisdiction of this Commission so that uniform system-
wide rates may be effected as authorized by Section 26(g) of the
PURA.
VI.
TU Electric further moves the Commission to consolidate this
Petition with Docket No. 11735 in the event that this Petition is
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filed in time to effect such consolidation with Docket No. 11735
and, if this Petition is not filed in time to effect such
consolidation with Docket No. 11735, then TU Electric moves that
this Petition be consolidated with any other similar Petitions. TU
Electric would show that Docket No. 11735, this Petition, and all
similar Petitions involve common questions of law and fact and that
separate hearings would result in unwarranted expense, delay, and
substantial injustice.
WHEREFORE, PREMISES CONSIDERED, TU Electric prays this
Honorable Commission to: promptly review the action of said
Municipality; fix interim rates within said Municipality, pending
the final determination of this appeal, as necessary to assure
uniform system -wide rates at all times; consolidate this Petition
as herein requested; upon final hearing herein, fix such rates as
should have been fixed by said Municipality; and grant TU Electric
such other and further relief to which it is justly entitled.
Respectfully submitted,
WORSHAM, FORSYTHE, SAMPELS &
WOOLDRIDGE
Robert A. Wooldridge
State Bar No. 21984000
J. Dan Bohannan
State Bar No. 02563000
Robert M. Fillmore
State Bar No. 06997320
2001 Bryan So eet, Suite 3200
Dallas, Texa- 75201
Telephone: .14/979 -3000
l a;
By: Ahii / 4 Am..---
ATTORNE-S FOR TEXAS UTILITIES
E' TRIC COMPANY
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing,
together with a copy of Examiners' Order No. 2 in Docket No. 11735,
was served upon the said Municipality and the additional parties
listed below, if any, either by certified United States mail,
return receipt requested, postage prepaid, or by hand delivery, and
that a true and correct copy of the foregoing, without a copy of
said Examiners' Order No. 2, was served upon the General Counsel of
the Public Utility Commission of Texas and upon all other parties
to Docket No. 11735, all either by first class United States mail,
postage prepaid, or by hand delivery, on this the 244 day of
T'y , , 1993.
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DOCKET NO. 11735
APPLICATION OF TEXAS UTILITIES ; PUBLIC UTILITY COMMISSION
ELECTRIC COMPANY FOR AUTHORITY TO OF TEXAS
CHANGE RATES f
EXAMINERS' ORDER N0. 2
PREHEARING ORDER AND NOTICE OF HEARING
On February 9, 1993, the first prehearing conference was held in the
above- referenced docket. Appearances were entered as follows:
party Representative
Cap Rock Electric Cooperative, Inc. Richard C. Balough
(Cap Rock)
Chaparral Steel Company Mark Smith
Citizens for Fair Utility Regulation Betty Brink
(CFUR)
City of Arlington (Cities) Geoffrey M. Gay
Environmental Defense Fund (EDF) Jim Marston
General Counsel Russell Trifovesti
I.B.E.W. Local 69 James R. Henry
Industrial Intervenors Peggy Wells Dobbins
Office of Public Utility Counsel (OPC) Marion Taylor
State of Texas Rupaco Gonzalez
Tenaska III Texas Partners (Tenaska) Richard S. O'Connell
Texas Citizen Action (TCA) Lon Burnam
Texas Industrial Energy Consumers (TIEC) Stephanie A. Kroger
Tex -La Electric Cooperative, of Texas, Mark C. Davis
Inc., (Tex -La)
Texas -New Mexico Power Company (TNP) Patricia A. Bowers
Texas Ratepayers' Organization to Jim Boyle
Save Energy, Inc. (Texas ROSE)
Texas Utilities Electric Company (TUEC) J. Dan Dan B ha nan
Robert A. Wooldridge
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PAGE 2
I. Notions to Intervene
At the prehearing conference, pending motions to intervene were
considered. The following motions to intervene were granted: OPC, Cities,
Rayburn Country Electric Cooperative, Inc., I.B.E.W. Local Union 2337,
I.B.E.W. Local Union 69, Chaparral Steel Company, Cap Rock, TNP, TIEC, State
of Texas, Federal Executive Agencies, EDF, Tex -La, and Tenaska.
II. Procedure for Consolidating Appeals from City Ratemaking Ordinances
A. TUEC shall keep the ALJ informed of the status of its rate filing
with the affected municipalities by filing information with the
Commission by the last working day of each month.
B. TUEC shall serve notice of any PURA § 26(a) appeal and any motion
to consolidate, together with a copy of this Order, on the
appellee municipality. A motion to consolidate the § 26(a) appeal
must include the mailing address of the appellee municipality.
TUEC shall attach a copy of the municipal ordinance to each appeal
or provide a copy as soon as possible.
C. PURA § 26(a) appeals should be filed in Docket No. 11735 unless
TUEC does not want the appeal to be consolidated.
III. Filing and Service Procedures
A. Filing
Unless the examiner instructs the parties to the contrary, the number of
copies filed at the Commission shall be as follows:
Requests for information (RFIs) and responses to RFIs: an original and
three (3) copies;
Testimony, interim appeals, post- hearing briefs and reply briefs,
exceptions to examiners' report, replies to exceptions, motions for
rehearing and responses to motions for rehearing: an original and
twenty (20) copies;
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 3
Any other document filed in docket: an original and eleven (11) copies.
FAXing documents to the Commission dgel D9/ constitute filing.
B. Service
Service of pleadings shall be governed by P.U.C. PROC. R. 21.64.
Service by first class mail on the day of filing will be considered adequate
unless other arrangements such as express mail or FAX have been made between
the parties. Documents FAXed to General Counsel must also be sent by first
class mail.
All mail sent to the parties by the examiner will be sent by first class
mail, unless the party requests express mailing and provides a Federal Express
number. Parties seeking to arrange express mailing should contact
Ms. Nadine Reese at (512) 458 -0236.
Documents hand - delivered to the Hearings Division should be file - stamped
prior to delivery.
For the convenience of the parties, a copy of the current service list
in this case is attached to this Order. All parties desiring FAXed copies,
Federal Express, or overnight courier service should provide the telephone or
account numbers to each party, including the Hearings Division. Parties are
responsible for updating their own service lists to reflect the addition of
other parties and FAX numbers, if any. Only one address per party will be
included on the official service list maintained by the examiner. The parties
may agree to serve more than one representative per party. Corrections to the
service list should be directed to Ms. Reese.
C. filing Deadline Procedures
Filings at the Commission shall occur by 3:00 p.m. on the deadline in
question unless otherwise specified.
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PACE 4
If a document has been sent by Federal Express or equivalent service,
the examiner will assume that the document was received no later than the day
after filing unless reliable proof to the contrary is provided. If a document
has been sent by regular nail, the examiner will assume that it was received
no later than three days after filing unless reliable proof to the contrary is
provided. If a document is FAXed or hand - delivered to a party by noon for
RFIs and 3:00 p.m. for other matters on a workday, the document will be deemed
to have been received on the next workday.
Parties are encouraged to engage in negotiations. The conduct of
negotiations, however, does not relieve the parties of their obligation to
meet filing deadlines. Failure to meet such deadlines may subject a party to
sanctions, such as exclusion of prefiled testimony from evidence. An
extension of time to file prefiled testimony due to pending negotiations will
NOT be granted unless the applicant agrees to extend its effective date
day- for -day, to coincide with the requested extension or with any delay of the
hearing necessitated by the granting of an extension.
D. Motions for Continuance or Cancellation of a Proceeding or
Extension of Deadline
Parties filing motions for continuance or cancellation of a scheduled
proceeding or extension of an established deadline are advised to file such
motions as early as possible. If such a motion is filed fewer than ten days
before the date or deadline in question, the notion shall state that the
movant has attempted to contact every other party and shall indicate whether
any party opposes the motion. If a continuance or extension of a deadline is
sought, the motion shall propose a new date or dates and shall indicate
whether the parties contacted agree on the new date or dates. Because the
examiner and /or hearing room may not be available on a given day, a proposed
range of dates would be preferable.
The examiner will not contact parties to ascertain their positions or to
negotiate dates. In the absence of a ruling by the examiner, a motion for
continuance, cancellation, or extension is NOT GRANTED and the existing
schedule remains in place.
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 5
E. Motions to Intervene
Motions to intervene shall be filed by March 8, 1993. Motions to
intervene shall demonstrate the savant's justiciable interest in the docket,
shall be served on all parties, and shall include a certificate of service.
Movants for intervention shall immediately enjoy all the rights and bear all
the obligations of party status unless and until their motions to intervene
are denied. Intervenors shall take the case as they find it unless good cause
is shown.
F. Responses to Motions and Other Pleadings
Unless otherwise specified, responses to any motion or other pleading
shall be filed within five working days from the date on which the motion or
other pleading was received by the responding party. Replies, if any, shall
be filed within three (3) working days of the date the response was received.
Failure to file a timely response will be considered acquiescence to the
relief requested. Rulings will be based on the written pleadings unless the
examiner determines that a prehearing conference is necessary.
IY. Discovery
A. Requests for Information and Deposition Deadlines
RFIs may be sent immediately. The deadline for intervenors and staff to
file RFIs or take depositions on TUEC direct testimony shall be as follows:
April 19, 1993 for Revenue Requirement, May 19, 1993 for Rate Design,
May 26, 1993 for Prudence, and July 14, 1993 for Fuel Reconciliation.
Discovery shall be served on all parties on or before the deadline specified
for each phase.
The deadline for TUEC to file RFIs or take depositions is May 3, 1993
for Revenue Requirement, June 1, 1993 for Rate Design, June 15, 1993 for
Prudence, and July 20, 1993 for Fuel Reconciliation.
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 6
The deadline for discovery on TUEC's rebuttal testimony is May 10, 1993
for Revenue Requirement, June 8, 1993 for Rate Design, July 2, 1993 for
Prudence, and July 27, 1993 for Fuel Reconciliation.
The deadline for discovery on updated revenue requirement rebuttal
testimony is August 3, 1993.
Answers to RFIs shall be filed with the Commission and served upon the
requesting party no later than twenty days after receipt by the party of whom
the RFI is made.
One copy of answers to RFIs shall be provided to other parties upon
request. Parties may make a blanket request for all such copies, but are
urged first to consider if they will review such copies. The parties are free
to work out among themselves other arrangements for delivery of responses to
RFIs.
All answers to RFIs shall be treated as if they were filed under oath.
A sponsoring witness or preparer shall be specified for all RFI answers. If
the responding party does not have a witness who has previously filed
testimony who can sponsor the response, the responding party shall designate
the person who responded to the RFI. However, a party may wait to designate
the sponsoring witness until it prefiles the direct testimony of its witness.
If the responding party determines at any time that an RFI response it
has provided was incorrect or incomplete when made, that party shall correct
or complete the response within five working days. Where there is an
obligation under T.R.C.P. 166.b to update or supplement responses to RFIs, the
party shall update or supplement the response within five working days.
Failure to do so may result in the party's related testimony being stricken or
other sanctions.
RFIs shall be grouped and designated according to the phases comprising
this docket: Revenue Requirement; Rate Design; Prudence; and Fuel
Reconciliation. Parties responding to RFIs submitted by TUEC shall forward
all responses to Mr. Bohannan.
DOCKET NO. 11735 EXAMINERS' ORDER N0. 2 PAGE 7
B. pepositions
Depositions may be taken pursuant to P.U.C. PROC. R. 21.81(c).
Depositions shall be taken at a time and place agreed upon by the parties.
Depositions taken pursuant to agreement of the parties will be admissible at
hearing as if a commission had been issued.
Introduction of depositions at the hearing, other than during cross -
examination or redirect examination, shall be governed by the deadlines for
prefiling of evidence set out below.
C. Obiections to RFIs/Motlons to Compel
Objections to RFIs on any basis, including objections indicating that an
answer will not be delivered (e.°., that the information is not available as
requested, the information is voluminous, the information is proprietary,
etc.) shall be filed within ten calendar days after receipt of the RFI.
The objections shall be a separate pleading and entitled 'Objections of
(name of objecting party) to (style of RFI objected to).' The exact RFI
question to which an objection is being filed shall be stated in full. Then
the specific grounds for the objection shall be separately listed for each
question. If an objection pertains only to part of a question, that part must
be clearly identified. The objections should contain the legal basis for the
objection and arguments that the objecting party desires for the examiner to
consider. The objection must state the date of receipt of the RFI.
Parties shall negotiate diligently and in good faith concerning any RFI
dispute. During negotiations the parties may agree to extend the deadlines
applicable to discovery. The parties must promptly file with the Commission a
letter explaining that the parties agree to extend a particular deadline.
Unless the deadline for Commission action is extended, the examiners will not
extend the deadlines for filing testimony simply because discovery
negotiations are in progress.
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PAGE 8
If negotiation fails, the party seeking discovery shall file a motion to
compel no later than five working days after receipt of the objection. The
notion to compel must state the date of receipt of the objections. Absence of
a motion to compel will be construed as an indication that the parties have
resolved their dispute.
Responses, if any, to the motion to compel shall be filed within five
working days after receipt of the motion to compel, and shall include any
legal argument the respondent wants to present regarding the motion. The
response must state the date of receipt of the motion to compel.
Any affidavits supporting an objection, motion to compel, or response
shall be attached to the relevant pleading.
D. Obiections to RFIs Based Upon Claims of Privilege or Exemption
1. Should an objection be founded upon a claim of privilege or
exemption under Tex. R. Civ. Proc. 166b(3), the objecting party shall file
within ten days of receipt of the RFI an index that lists the following
information for each document:
(a) the date and title of the document;
(b) the preparer of the document;
(c) to whom it was sent and from whom the document was received; and
(d) the privilege or exemption that is claimed.
A complete explanation of the claimed privilege or exemption shall be
provided for each document.
The indexes (which must enable the examiner ultimately to identify the
documents from the list provided) and explanations will be public documents;
thus the objecting party shall also serve them on the party propounding the
RFI.
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PAGE
•
2. The following procedure shall apply if the party to whom an RFI is
propounded raises objections both on grounds of privilege or exemption and on
non - privileged grounds:
(a) The party to whom an RFI is propounded must set forth in its
pleading all objections which apply to the question. That party shall
not, however, be required to file an index to the claimed privileged or
exempt documents within ten days of receipt of the RFI.
(b) Motions to compel and responses to motions to compel shall be due
according to the deadlines set forth in Section III.B. above. These
pleadings shall address the objections not related to privileges or
exemptions.
(c) An index to the privileged or exempt documents shall be due within
five working days of receipt of an order overruling the other
objections. Within five working days of receipt of the order, the party
seeking discovery shall file a second motion to compel to address the
remaining objections. The response to the second motion to compel must
be filed within three working days of receipt of that motion.
E. In Camera Review
The objecting party shall provide all documents claimed to be privileged
or exempt for in camera review by the examiner at the time of filing the
Response to the Motion to Compel. THESE DOCUMENTS SHALL NOT BE FILED WITH THE
COMMISSION FILING CLERK. If they are filed with the Commission filing clerk,
even inadvertently, the documents may not be physically removed from the
Commission. Further, any claim to privilege or exemption could be found to
have been waived by such filing with the Commission filing clerk.
The objecting party shall have reviewed the document and shall note
specifically any portions thereof for which the privilege or exemption is not
being claimed.
DOCKET N0. 11135 EXAMINERS' ORDER NO. 2 PAGE 10
At the same time the documents are submitted for in camera review, the
objecting party shall file sworn affidavits setting out the facts necessary to
support the explanation and the privilege or exemption that Is claimed. The
affidavits will be public documents and as such shall be filed with the
Commission filing clerk and served upon the propounding party.
RFI answers submitted for in camera review shall be grouped and
separated from other answers by envelope, folder, box, etc.; materials which
constitute a response to more than one RFI shall be clearly cross - referenced.
RFI answers submitted for In camera review will not be accessible to the other
parties unless subsequently ordered so by the examiner.
Should the examiner determine, following an in camera review, that a
document is not privileged or exempt, the examiner will stay the order for
three full working days to allow the party claiming the privilege or exemption
to appeal that order. Also, if appealed, the order will remain stayed until
three days following the Commission's order on the appeal.
Discovery disputes will be resolved based on the written pleadings, any
sworn affidavits attached thereto, and materials, if any, provided for in
camera inspection, unless a prehearing conference is deemed to be necessary.
Material which is the subject of a successful motion to compel shall be
supplied within three working days of receipt of the order granting the motion
to compel.
F. Voluminous Material
The following procedures shall apply to objections based upon claims
that information is too voluminous. The responding party shall make available
at a designated location in Austin, Texas, all voluminous information
responding to an RFI. A party will be released from its obligation to provide
the requested voluminous data in Austin only if the data exceeds eight linear
feet. In its response, or objection, TUEC shall designate the location of
this massive material.
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 11
Responses to particular questions that consist of 250 pages or less are
not voluminous and must be provided In full. The examiners strongly encourage
the parties not to request documents they do not need.
Except for such massive materials, a party's failure to deliver
voluminous information to the Austin location when due may cause the party's
relevant testimony to be stricken.
8. Workcapers
Copies of a witness' workpapers (except workpapers claimed to be
privileged) shall be provided to a party upon request, on, or by agreement of
the requesting party, after the date of prefiling such witness's testimony.
V. Phases of Hearing, Prefiling Dates for Evidence and Related Pleadings
A. phases
The hearing on the merits will be divided into the following five
phases:
1. Revenue Requirement
2. Rate Design
3. Prudence
4. Fuel Reconciliation
5. Rate Case Expenses
The following deadlines shall govern the filing of evidence (including
testimony, associated exhibits, and material requested to be officially
noticed) to be offered at the hearing.
S. prefiled Direct Testimony and Exhibltt
Intervenor peadlinq
Revenue Requirement April 19, 1993
Rate Design May 18, 1993
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PAGE 12
Rebuttal May 25, 1993
to intervenor testimony
Prudence June 8, 1993
Fuel Reconciliation July 6, 1993
General Counsel peadline
Revenue Requirement April 26, 1993
Rate Design May 25, 1993
Prudence June 8, 1993
Fuel Reconciliation July 13, 1993
TUEC's Rebuttal Testimony peadline
Revenue Requirement May 3, 1993
Rate Design June 1, 1993
Prudence June 25, 1993
Fuel Reconciliation July 20, 1993
Surrebuttal limited to quantification issues contained in TUEC's
rebuttal may be filed, and is due on July 2, 1993. Rejoinder to surrebuttal,
if filed, is due on July 9, 1993. Witness sequences are due on the date
testimony is due, except for TUEC direct which is due on April 5, 1993.
An updated Revenue Requirement filing for intervenors and staff and an
updated Rate Design filing reflecting the updated revenue requirements is due
from intervenors and staff on July 20, 1993. TUEC's updated Revenue
Requirement rebuttal and updated Rate Design rebuttal reflecting the updated
revenue requirements of TUEC is due on July 27, 1993.
Rate case expense testimony schedules will be determined when TUEC's
direct prudence phase is complete.
Rebuttal testimony is limited to the scope of other parties' direct
testimony.
For consistency, all schedules shall follow the same format as that used
by the Commission's staff.
DOCKET NO. 11735 EXAMINERS' ORDER N0. 2 PAGE 13
C. Statements of Position and Identification of Issues
Statements of position are due as follows: April 30, 1993 for Revenue
Requirement; June 1, 1993 for Rate Design; June 15, 1993 for Prudence; and
July 20, 1993 for Fuel Reconciliation.
The statements of position shall contain a list detailing every issue
(1) stating whether they agree with or dispute TUEC's position, and (2)
identifying new issues they have raised. With its rebuttal testimony, TUEC
shall provide a list containing its position on those issues raised in •
intervenor and staff testimony.
Each item on the list shall be a concise statement of the issue and of
the party's position with regard to the particular issue. A statement that a
party is disputing every issue or every matter contained in TUEC's
application, or that TUEC is disputing every issue raised by other parties, is
not acceptable. The issues must be delineated with enough particularity so
that they may be identified, but they shall not be a discussion of the reasons
for taking a particular position. That discussion will occur in post - hearing
briefs. To repeat, the list shall include all agreed issues, all - issues
raised in the party's prefiled testimony, and all issues that the party
intends to dispute through cross - examination.
Cross - examination by a party will be limited to the party's stated
position on the particular issue, and the hearing itself will be limited to
the contested issues. The parties will not be permitted to cross - examine
witnesses on any other issues unless they are able to show good cause for
doing so. Ideally, cross - examination of witnesses should track the list of
'disputed' issues. At the hearing, parties must raise timely objections to
questions that go beyond a particular party's stated position.
Before the end of the hearing on each phase, the parties shall provide a
consolidated list of issues which then for the outline for post - hearing
briefs. The examiners recognize that issue statements may be modified during
the hearing to include prior unforeseen matters, or to eliminate those which
may be resolved by agreement of the parties.
DOCKET N0. 11735 EXAMINERS' ORDER N0. 2 PAGE 14
Each intervenor wishing to participate in this docket, but not planning
to present a direct case, shall file a written statement of position. The
statement of position Is necessary for the examiners to determine possible
grouping and order of cross-examination. An intervenor who fails to comply
with this requirement may be deemed to have waived its right to participate at
the hearing.
0. Rate Case Expense Testimony
All parties requesting rate case expenses are to follow the procedures
below.
Reouirement No. 1 First, parties seeking the reimbursement of rate
case expenses SHALL file summaries of their expenses on a monthly basis. The
primary purpose of this summary is to keep the parties abreast of the type and
amount of rate case expenses being incurred. The summary shall list expenses
incurred each month by category (e.g., reproduction costs, consultant and
expert fees, attorney's fees, etc.). It shall also provide the month's total
expenses for each category, as well as the balance to date for each category.
In addition to these requirements, TUEC's summaries shall also list, on a
monthly and cumulative basis, its expenses according to the categories
designated in its rate filing package: (1) general rate case expenses; and
(2) prudence expenses. Finally, with respect to expenses Incurred by
witnesses who will testify on behalf of the filing party, the summary shall
specify the number of hours billed by such person(s), state the hourly rate
charged and briefly describe the nature of the work performed.
The summaries for all months through January 1993 SHALL be filed on or
before February 28, 1993. All succeeding monthly summaries SHALL be filed on
or before the end of the following month. (For example, the monthly summary
of June's rate case expenses must be filed no later than July 31, 1993.) The
filing party need not file invoices and documentation In support of the
claimed expenses at the time of filing these summaries.
DOCG''CET NO. 11735 EXAMINERS' ORDER N0. 2 PAGE 15
Requirement No. Z: Second, parties seeking the recovery of rate case
expenses SHALL (1) serve a copy of all invoices and other supporting
documentation underlying the expenses stated in the executive summary with the
general counsel and (2) make available one copy of such documents at a place
specified for voluminous materials, on the dates specified below. The filing
party will not be required to file a copy of such invoices and supporting
documents with the Commission or serve a copy upon all other parties in the
docket. These supporting documents shall be clearly organized by month, and a
copy of the corresponding monthly summary will accompany such materials. The
filing party shall timely provide a copy of any specific invoice or other
supporting document upon request, but only after the requesting party has
thoroughly reviewed the supporting documentation. A blanket request for a
copy of all documentation for any given month or months may be refused.
All invoices and supporting documentation in this Docket No. 11735 for
all months through April 1993 SHALL be delivered to the general counsel and be
made available to the other parties no later than June 15, 1993. All invoices
and supporting documentation on Docket No. 9300 expenses at issue in Docket
No. 11735 through January 1993 SHALL be delivered to the General Counsel and
be made available to the other parties no later than March 15, 1993. All
invoices and supporting documentation for each successive month SHALL be
delivered to the general counsel and made available to the other parties on or
before the last day of the following month. (For example, invoices for May
1993 rate case expenses shall be made available by June 30, 1993.)
With respect to monthly filings of invoices and other supporting
documents related to the prudence phase, a party may mask the portions of
those documents which reveal trial strategy; however, masked documents may not
be sufficient to meet the burden of proving the reasonableness of the expense
masked. In such instances, the filing party may want to revise an invoice or
supporting document in such a manner that it does not reveal trial strategy,
before providing it as required by this order. Any document so revised should
state that it has been revised for this purpose.
DOCKET N0. 11735 EXAMINERS' ORDER NO. 2 PACE 10
Discovery concerning rate case expenses in Docket No. 11735 shall
commence on June 15, 1993. Discovery concerning rate case expenses in Docket
No. 9300 at issue in Docket No. 11735 shall commence on March 15, 1993.
Requirement No. 3: If a party seeking the recovery of rate case
expenses intends to have a witness to testify about his or her expenses prior
to the rate case expense phase, such party SHALL file a statement notifying
the parties of such no later than Friday, April 23, 1993. If, after the
hearing on the merits commences, a party determines that administrative
efficiency and economy would be best served by having a witness so testify in
a phase prior to the rate case expense phase, it SHALL notify the other
parties no less than five working days before the witness takes the stand.
The rate case expense phase of the hearing shall be limited to
consideration of rate case expenses incurred in this proceeding, those TUEC
expenses incurred in Docket No. 9300 after August 31, 1990, and Cities'
expenses incurred in Docket No. 9300 after November 30, 1990. Other legal and
regulatory expenses shall be addressed in the revenue requirement phase.
E. sequence of Witnesses
By April 15, 1993, TUEC shall file a proposed sequence of witnesses
which should also indicate any scheduling conflicts for each witness. Other
parties shall include their sequence of witnesses with their prefiled
testimony. The parties and examiners shall be promptly notified of any
proposed changes in this sequence and of any scheduling conflicts which
subsequently arise.
All intervenor and staff testimony shall be physically divided into, and
clearly labeled as pertaining to Revenue Requirement; Rate Design; Prudence;
Fuel; or Rate Case Expenses. The actual copies of TUEC's direct case which
TUEC offers into evidence shall be physically divided and clearly labeled in
the manner described.
DOCKET NO. 11135 EXAMINERS' ORDER NO. 2 PAGE 17
F. Obiectlons to Profiled Evidence
The following dates shall govern the times for filing objections to
prefiled evidence (testimony, exhibits, and materials requested to be
officially noticed) of all parties. Such objections shall also include
motions to strike prefiled evidence and motions to take a witness on vat dire
examination.
Objections to TUEC direct testimony and exhibits shall be made no later
than April 1, 1993, all other objections to any testimony and exhibits shall
be made no later than ten calendar days after the date it is filed.
All written objections shall specifically identify the testimony being
objected to (by page, line number, etc.) and the specific objections raised
regarding each portion of such testimony. Requests to take a witness on voir
dirt shall identify the exact portion(s) of the testimony and exhibits giving
rise to the request and the objections associated with the request. Failure
to comply with the above deadlines will result in waiver of objections and
requests for voir dire examination.
G. Witness Melt
A party may file panel testimony or designate witnesses as a panel. A
panel may consist of two or more witnesses. The following guidelines, adopted
from Docket No. 9300, shall govern the examination of panels:
1. Each member of the panel shall be considered an individual witness
for all purposes, except as directed otherwise by this order;
2. Counsel conducting cross - examination of a panel may direct
questions to individual members or to the panel in general;
3. A member of a panel may not interject testimony, augment another
member's response, or explain another member's testimony, except
in response to a properly directed question on cross - examination
or redirect examination. A member, however, may offer to respond
•
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 1$
to a question not specifically directed to hi,/her. It is within
the questioner's discretion whether to allow such a response;
4. Members of a panel shall not communicate directly or indirectly
(e.g., body language) with each other during examination, except
during a recess in the hearing; and
5. The scope of redirect examination of either an individual panel
member or the panel as a whole shall be limited to the scope of
cross - examination for the entire panel.
These guidelines for panel testimony aim to further the objectives
contained in Tex. R. Civ. Evid. 611(a), to wit, (1) to effectively ascertain
the truth; (2) to avoid the needless consumption of hearing time; and (3) to
protect witnesses from harassment or undue embarrassment. The examiners
reserve the right to modify these guidelines during the hearing, if it appears
that such modification is necessary in order to meet these objectives.
VI. Hearing on the Merits
Pursuant to §§ 16(a) and 26 of PURA, the hearing on the merits in the
Revenue Requirement phase will be convened at 10:00 a.m., Monday, May 3, 1993,
at the Commission's offices, 7800 Shoal Creek Boulevard, Austin, Texas, and
will be continued from day to day until adjourned. The hearing will continue
in the following order: Revenue Requirement; Rate Design; Prudence; Fuel
Reconciliation; and Rate Case Expenses.
Protest statements will be taken at the beginning of the hearing.
Opening statements, if any, will be made prior to the taking of direct
testimony. The parties should be prepared to go forward with the evidence on
the first day of hearing unless notified otherwise by the examiner.
i
DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 1,
VII. Evidence and Exhibits
A. Rules of Evidence
The Texas Rules of Evidence will be followed at the hearing, with
infrequent recourse being taken to § 14(a) of the Administrative Procedure and
Texas Register Act, Tex. Rev. Civ. Stat. Ann. art. 6252 -13a (Vernon Supp.
1993), as appropriate. The burden is on the proponent of the evidence to show
its admissibility.
B. Exhibits
Counsel should work with their witnesses to eliminate argumentative,
cumulative, or otherwise objectionable passages in testimony they intend to
prefile. The exhibits should not encumber the Commission records or pose
difficulties in duplication. Voluminous or complicated data will not be
admitted in bulk. Counsel shall be prepared to state that he or she has read
the proffered exhibit in full and to show the admissibility of all portions
offered. Exhibits should be expurgated, summarized, or excerpted as
necessary. The underlying data from which exhibits are taken shall be made
available to the parties for inspection.
Parties are encouraged to have marked in advance, during break period,
exhibits that they will offer. In addition to the official record copy, a
copy of each exhibit must be provided to the examiner and to each party
participating in the hearing at or before the time the offer is made.
C. Official Notice
If a party requests official notice of judicially cognizable facts
pursuant to P.U.C. PROC. R. 21.123, the party shall provide a record copy and
a copy to the examiner and all other parties present at the hearing no later
than the time the request for official notice is made. The examiner
encourages the parties to reach an agreement relating to taking official
notice of these documents before the request is made.
DOCkET NO. 11735 EXAMINERS' ORDER N0. 2 PAGE 20
D. Scope of Questions
The scope of redirect examination will be limited to the scope of cross
and clarifying. The scope of recross - examination will be limited to the scope
of redirect and clarifying. The scope of cross - examination concerning
rebuttal testimony is limited to the scope of rebuttal testimony if the
witness has previously testified at the hearing.
E. Obiections
Parties wishing to object to questions or answers during live
examination should state concisely the grounds of the objection and identify
by number the applicable rule of evidence. Untimely objections will be
overruled. Oral argument concerning discussion of an objection shall be
limited to the party or parties making the objection and the party or parties
against whom the objection is directed, unless the examiner extends a broader
invitation for argument.
Counsel should feel free to object to clarifying questions posed by the
examiner.
F. Offers of Proof
Written material excluded from evidence will not be included in the
record as offers of proof unless the party offering such evidence so requests
at the time of the exclusion. Parties wishing to make offers of proof by live
question and answer may do so after the hearing is recessed for the day.
VIII. Other Procedural Guidelines
A. Oral Argument on Notions
Scheduling a prehearing conference and allowing oral argument at a
prehearing conference or hearing is within the examiner's discretion. Parties
are therefore advised, when this is possible, to present their arguments fully
'DOCKET NO. 11735 EXAMINERS' ORDER NO. 2 PAGE 21
and concisely in writing and to file such arguments in time for them to be
carefully considered prior to the prehearing conference or hearing.
E. Citation of Legal Authority
Parties citing legal authorities in written or oral argument should
provide a full and correct citation to that authority. If the authority is
not contained in the Commission's library, a copy of the authority should be
provided to the examiner when the argument is submitted.
C. Fx Parte Communications
Ex parte communications with the examiner are prohibited. Parties
should undertake to communicate with the examiner outside the hearing room
only through written documents filed with the Commission and served on all
parties.
SIGNED AT AUSTIN, TEXAS the (o/ day of February 1993.
PUBLIC UTILITY CO ISSION OF TEXAS
J FF' . .R1 MAN
iI. N S RAT YE LAY JUDGE
. / / I -da.a _
L EN SAN ORD
ADMINISTRATIVE LAY JUDGE
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L J. 0' LEY
HEARINGS EXAMINER
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RICK GUZMAN
HEARINGS EXANIN
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