        .        .




                                   The Attorney          General of Texas

   JIM MATTOX                                       February 21, 1984
   AttorneyGeneral


   Supreme Court Building         Mr. Jim Boyle                          Opinion No.   JM-127
   P. 0. BOX 12546                Public Counsel
   Austin, TX. 76711. 2546
                                  office of Public Utility Counsel       Re: Whether bonding date for
   512/475-2501
   Telex 910/674-1367
                                  8140 Mopac, Westpark III, No. 120      Southwestern Bell rate request
   Telecopier   5W475-0266        Austin, Texas   78759                  before Public Utility Commission
                                                                         is governed by amendment effect-
   714 Jackson,      Suite 700                                           ive September 1, 1983 or prior
                                                                         la"
   Dallas, TX. 75202.4506
   2141742.6944
                                  Dear Mr. Boyle:

   4024 Alberta Ave., Suite 160        You have requested an opinion regarding a recent change in the
   El Paso, TX. 79905.2793
                                  Public Utility Regulatory Act [PURA]. article 1446c, V.T.C.S., and the
   9151533.3464
                                  effect it my have on Southwestern Bell Telephone Company's [Bell]
                                  pending rate hike request before the Public Utility Commission [PVC].
‘-‘II       Texas, Suite 700      You ask whether section 43(a) of article 1446~ equates the requirement
      ~slon.  TX. 77002-3111      of a "statement of intent" with a substantially complete filing and
    7 1W223-5666                  whether the new version of article 43(e) of the PURA applies to the
                                  Bell case. We answer both queries in the affirmative.
   606 Broadway. Suite 312
   Lubbock, TX. 79401.3479             On June 24, 1983,        Southwestern Bell purported to file a
   6061747.5238                   “statement of intent" with    the PUC pursuant to article 1446c, section
                                  43(a), V.T.C.S., in which    it requested increased revenues from Texas
    4309 N. Tenth, Suite B
                                  rate-payers. A prehearing    order for docket number 5220 dated July 12,
    McAllen, TX. 76501-1665       1983, states:
    512/662-4547
                                            The examiner hereby finds that the rate filing
                                            submitted by Southwestern Bell is materially
    200 Main Plaza. Suite 400
    San Antonio. TX. 76205.2797
                                            deficient in that it does not contain, by
    512/225-4191                            Southwestern Bell's own admission, all of the
                                            proposed tariffs and schedules as required by
                                            Section 43(a) of the Act, nor all of the testimony
    An Equal Opportunity/                   and exhibits of all of the company's witnesses
    Affirmative Action Employer
                                            such that the company could go forward to hearing
                                            and sustain its burden of proof at this time on
                                            the information file, as required by P.U.C. PROC.
                                            R. 052.01.00.039(a)(2). Pursuant to the provisions
                                            of Rule .035(b), Southwestern Bell has ten days to
                                            correct the deficiencies. If such deficiencies
                                            are not corrected within ten days, the earliest
                                            possible effective date of the proposed change




                                                               p. 538
                                                                         .   .


Mr.   31~1~0~1s - Page 2   w-127)




            shall be at least 35 days after the filing of
            substantially complete information.  (Emphasis
            added).

Bell failed to correct the deficiencies within the permitted ten days.
On October 20, 1983, the examiner ruled that Bell's filing was
substantially complete as of October 19, 1983. Thus, the examiner
found that the statement of intent filed June 24, 1983, was
insufficient as a matter of law and, for purposes of establishing an
effective date, the statement was filed on October 19, 1983, the date
of substantial completion.

     The Sixty-eighth Texas Legislature amended section 43(e) of the
PURA effective September 1, 1983. Under the new version, a utility
must wait 150 days beyond the earliest effective date before bonding
new rates. Acts 1983, 68th Leg., ch. 274, at 1302. The version of
43(e) in effect prior to September 1, 1983 required only a 90 day
waiting period after the effective date. Acts 1975, 64th Leg., ch.
721, at 2344. If the old version of section 43(e) applies to the Bell
case, the company may bond higher rates into effect on February 23,
1984. Under the new version, the company may not bond higher rates
until April 22, 1984.

       Section 43(a) of both versions of the PURA reads in part:

            No utility may make changes in its rates except by
            filing a statement of intent with the regulatory
            authority having original jurisdiction at least 35
            days prior to the effective date of the proposed
            change. The statement of intent shall include
            proposed revisions of tariffs and schedules and a
            statement specifying in detail each proposed
            change, the effect the proposed change is expected
            to have on all the revenues of the company, the
            classes and numbers of utility customers affected,
            and such other information as may be required by
            the regulatory authority's rules and regulations.
            (Emphasis added).

     Unambiguous statutory language is not subject to construction.
It must be enforced as written. Ex parte Roloff, 510 S.W.2d 913 (Tex.
1974). Tbe language of this provision clearly mandates that a utility
file a statement of intent to raise rates.         It specifies what
constitutes a statement of intent within the meaning of the statute.
A filing which fails to meet the requirements is not valid for
purposes of determining the earliest effective date and it is the
effective date which triggers the waiting period required by section
43(a). We conclude that section 43(d) of article 1446~ equates
"statement of intent" with a substantially complete filing.




                                    p. 539
Mr. Jim Boyle - Page 3   (JM-127)




     The statement which Bell filed on June 24, 1983 was ruled
"materially deficient" in that it did not contain all the proposed
tariffs and schedules as the statute requires. It also failed to
include all the testimony and exhibits required by the PUC rules
promulgated pursuant to article 6252-13a, V.T.C.S. Thus, the filing
did not constitute a valid statement of intent under section 43(a).
Furthermore, Bell's failure to provide these documents was not mere
oversight on its part such that it was able to correct the
deficiencies within ten days: the necessary information was not yet
available to the company at that time. See Prehearing Order and
Notice of hearing, July 12, 1983, Petition of Southwestern Bell
Telephone Company for Authority to Change Rates, Docket No. 5220,
p. 2.

     Bell met the requirements of section 43(a) on October 19, 1983,
well after the new version of section 43(e) went into effect. The
PURA was enacted "to protect the public interest inherent in the rates
and services of public utilities." V.T.C.S. art. 1446c, 62. To allow
the utility to file an invalid statement of intent and preserve rights
under the old version of the law would amount to a waiver of the
statutory requirement of section 43(a) and of the rights of the
consumers of Texas. Bell, by its own admission, instituted this rate
hike proceeding well before it was able to supply the mandatory
information. It did not file a complete statutory statement of intent
until after the new law went into effect. We conclude that the new
law governs the bonding date in this case.

                             SUMMARY

             Section 43(a) of the PURA dictates what
          constitutes a valid statement of intent. Bell's
          filing of June 24, 1983 was materially deficient
          and therefore invalid. Bell's filing was not
          substantially complete until October 19, 1983, and
          the version of the PURA in effect on that date
          controls the bonding date.




                                         JIM     MATTOX
                                         Attorney General of Texas

TOM GREEN
First Assistant Attorney General




                                p. 540
Mr.   Jim Boyle - Page 4   (JM-127)




DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




                                 p. 541
