                       The Attorney             General of Texas
                                             July   22,     1980
MARK WHITE
Attorney General


                    Honorable Georee M. Cowden                 Ooinion No. NW-212
                   Chairman         -
                   -Public
                     _--   Utility Commission of Texas         Re: Whether the Texas Municipal
                   7800 Slloal Creek Boulevard                 Power Agency is a public utility
                   Suite 400 N                                 under the Public Utility Regulatory
                    Austin, Texas 78757                        Act

                   Dear Mr. Cowden:

                          You hive requested our opinion as to         whether the Texas Municipal
                   Power Agency (TMPA) is excluded from the              definition of “public utility”
                   under the Public Utility Regulatory Act, and,       if so, as to whether the Public
                   Utility Commission of Texas has eny original         or appellate jurisdiction over
                   the Texas Municipal Power Agency’s rates and        services.

                         The Texas Municipal Power Agency was created             pursuant to article
                   1435a, section 4a(a), V.T.C.S., which provides in part:

                                  In order to more readily accomplish the purposes
                              of this Act, two or more public entities by concurrent
                              ordinances may create a joint powers sgency to be
                              known as a municipal power agency, without taxing
                              power, as a separate         municipal corporation,    a
                              political s&division of the state, and body politic and
                              corporate, to have and exercise all of the powers
                              which are by Chapter 10 of Title 28, Revised Civil
                              Statutes of Texas, 1925, as amended, and this Act,
                              conferred 1@0n a pblic entity or entities, provided
                              that such egency shall not be authorized to engage in
                              any utility business other than generation, trans-
                              mission, and sale or exchange of electric energy to
                              the participating    public entities    and to private
                              entities who are joint owners with the agency of an
                              electric generating facility located within the state.

                   Section 3(c) of the Public Utility     Regulatory    Act, article   1446c, V.T.C.S.,
                   provides:




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Honorable George M. Cowden - Page Two               (MW-2 12 )




                   The term ‘public utility’ or ‘utility,’ when used in this Act,
               includes any person. . . other than a municipal corporation. . .
               now or hereafter owning or operating for compensation in this
               state equipment or facilities for:

                   (1) producing, generating, transmitting, distributing,     selling,
               or furnishing electricity (‘electric utilities’ hereinafter)

        Because the TMPA is a municipally owned utility authorized to engage in the
generation, transmission, and sale or exchange of electric energy at a wholesale level
only, it is our opinion that it is specifically excluded from the definition of “public
utility” as contained in section 3(c) of the Public Utility Act.

       In light of our above response, you ask if the Public Utility Commission has any
original or appellate jurisdiction over the rates and services of TMPA. The term rate
is &fined in section 3(d) of the Public Utility Act as a charge, toll, fare, tariff, etc.
charged by a public utility. The definition of regulatory authority contained in 3(g) of
the act includes the Public Utility Commission of Texas. Since section 37 of the act
grants original jurisdiction to the Public Utility Commission as a regulatory authority
over the rates of a public utility only, it is our opinion that the Commission has no
original jurisdiction over the rates of the TMPA.

      Furthermore, the Commission exercises no appellate jurisdiction over the rates
charged by the TMPA because the TMPA is not subject to the rate making authority of
any municipality.  V.T.C.S. art. 1435a, §4a(g); V.T.C.S. art. 1446c, %3(c), 3(d), 22, 23,
26.

       Article VII of the Public Utility Act &es not confer jurisdiction upon the
Commission to regulate the service offerings of TMPA nor the authority to certify its
operations because section 49 of that article limits the applicability of Article VII to
municipally owned utilities offering retail utility service only. The TMPA may not
offer retail utility services by statute.  V.T.C.S. art. 1435a, §4a(a). It is also our
opinion that the first sentence of section 16 of the Public Utility Act &es not confer
any jurisdiction upon the Commission to regulate the services offered by the TMPA or
its business affairs.

      It is our opinion, however, that the reporting requirements of section 2’7 of the
Public Utility Act are applicable to the TMPA by virtue of the following provision:

                  Iflor the purposes of this section,       ‘public utility’ includes
               ‘municipally owned utility.’

Sec. 27 (f).




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        Honorable George M. Cowden - Page Three            (Nw-212)




                                           SUMMARY

                       The Texas Municipal Power Agency is not a public utility as
                   defined   in the Public Utility     Regulatory   Act and the
                   Commission has no original or appellate jurisdiction over its
                   rates and services.   The TMPA is subject to the reporting
                   requirements contained in section 27 of the Act.

                                                    kwm&.




                                                      Attorney General of Texas

        JOHN W. FAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General

        Prepared by Marty Terry
        Assistant Attorney General

        APPROVED:
        OPINION COMMlTTEE

        C. Robert Heath, Chairman
        Jon Bible
        Rick Gilpin
        Marty Terry




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