Austin News

Attorney General Ken Paxton's opinion last week, siding with Lt. Gov. Dan Patrick and, apparently, against Gov. Greg Abbott over how to deal with $16 billion in huge electric bills from last month's extreme weather crisis, has tossed the debate back into the state's Public Utility Commission's (PUC) lap.

Despite the PUC's the argument by the PUC's recently resigned chair, Paxton said in his nonbinding opinion issued March 17, that the state's Utilities Code gives "complete authority" to the commission to retroactively scale back the price of wholesale electricity.

In three-paragraph opinion, Paxton referred to a subsection of the code that he says "authorizes the Public Utility Commission to oversee and investigate"  Electric Reliability Council of Texas (ERCOT) "as necessary to ensure ERCOT's accountability and to ensure that it adequately performs its functions and duties."

Texas Attorney General Ken Paxton | texasattorneygeneral.gov/

That oversight includes rolling back electric bills, the opinion said.

"Within the regulatory timelines, ERCOT can also revise pricing on the wholesale electricity market if certain events occur," Paxton continued.

The same section of the code also provides the PUC "complete authority to act to ensure that ERCOT has accurately accounted for electricity production and delivery among market participants in the region," the opinion said. "Such authority likely could be interpreted to allow the Public Utility Commission to order ERCOT to correct prices for wholesale electricity and ancillary services during a specific timeframe."

Paxton reportedly sat out the winter storm in Utah while Abbott remained in the state and, at one point, went to San Antonio to meet a C-130 aircraft carrying badly needed drinking water.

Paxton's opinion came a couple of days after the Texas Senate suspended its own rules and rapidly approved Senate Bill 2142, which directs the state's PUC to order the state's electric grid and market operator "to correct billions in erroneous electric charges during the February winter storm," the Senate said in a news release issued later that day.

In the same news release, Patrick called on the governor "to join us," adding "I think if he will say he will sign this bill, it may help us get this bill through the House."

None of that has happened. Abbott has not openly sided with the Senate over SB 2142, so swiftly passed in that chamber, that now is immured in the House State Affairs Committee and from which it is unlikely to emerge.

House Speaker Dade Phelan (R-Beaumont) said in a statement the day after the Senate vote that SB 2142 objected to the Senate's characterization of the billions of dollars in huge electric bills as a mistake, said there had been "no error," and that the legislation is too much government tampering with the free market.

"Repricing based on disagreement with PUC and ERCOT's management decisions is an extraordinary government intervention into the free market, which may have major consequences for both residential and commercial consumers going forward.”

Prior to the Senate vote, then PUC Chairman Arthur D'Andrea told the Senate Jurisprudence Committee that the Legislature - not the PUC - is empowered to turn back the large billing charges, according to the Senate's news release.

D'Andrea was only days in office following the forced resignation of his predecessor, DeAnn Walker.

During an earlier PUC meeting, D'Andrea warned that dealing with the billions in power bills must be handled carefully.

"You don't know who you're hurting," D'Andrea said during a PUC meeting earlier this month, according to statements reported by CW39 Houston. "You think you're protecting the consumer, and it turns out you're bankrupting a co-op or a city. And so it's dangerous to do so, after something is run to go around and redo it."

D'Andrea lasted about two weeks in his job before Abbott announced that the latest PUC chair had resigned. Abbott hasn't explained why he sought D'Andrea's resignation, nor has he made his position on SB 2142 especially clear.

"I already made multiple comments on that, and I'll just leave those comments." the governor told CBS 11, who'd asked him specifically whether he supports SB 2142. "You can pull them up."

While the PUC waits to see who its next governor-appointed chair will be, Paxton said in his opinion that the state should not be concerned about lawsuits arising from "corrective action" the commission might take under the Utility Code, no "constitution concerns" would be raised and the Texas Constitution provides "that such regulatory action furthers a compelling public interest."