                                 The Attorne,y General of Texas

 JIM MAlTOX                                        Se~ptember11. 1986
 Attorney General


 Supreme Court Bullding         us. Peggy Rosson                        Opinion NO.JM+Q
 P. 0. BOX 12543
 Austin. TX. 7971% 2549
                                Chairman
 5121475-2501                   Public Utility Commkision               Re: Authority of the Executive
 Telex 9101574.1357                of Texas                             Direc,tor.of the Public Utility
 Telecopier   512f475-0255      7800 Shoal Creek Blvd., Suite 400N      Comnlission
                                Austin, Texas 7875:'
 714 Jackson. Suits 700
 Dallas, TX. 7520245M           Dear Ms. Rosson:
 214l742-8944
                                     You ask severa:.questions about the role of the executive head of
                                the Public Utility Commission [hereinafter "PCC"]. Specifically, you
 4824 Alberta Ave.. Suite 160
 El Paso, TX. 79905-2793
                                ask:
 91515333484
                                             1. Wall it the intent of the legislature in
                                          creating the position of executive director that
/wl     Tsxss. Suite 700                  the executive director be the executive head of
      ,ston. TX. 77002.3111
                                          the Public Utility Commission?
 ,13/2235885

                                            2. If so, what is the scope of the authority,
 BOB Broadway, Suits 312                 responsib::l.ity
                                                        and duties of the executive head of
 Lubbock. TX. 794gl.3479                 the Public Utility Commission? In particular,
 905i747-5235
                                         what authority do the commissioners have to
                                         delegate to the executive director authority for
 4309 N. Tenth. Suite B                  carrying out administrative functions necessary
 McAllsn, TX. 78501-1555                 for the dutyto day operation of the commission?
 5126924547

                                     Section 8 of the Public Utilities Regulatory Act (PUILQ, article
 200 Main Plszs, Suite 4W       1446c, V.T.C.S.. contains provisions regarding employees of the PUC:
 San Antonio, TX. 792012797
 5122254191                                 Sec. 8. (a) The commission shall employ such
                                         officers, administrative law judges, hearing exa-
 An Equal Opportunity/
                                         miners, investigators, lawyers, engineers, econo-
 Afflrmatlvs Action Employer             mists, consultants, statisticians, accountants,
                                         administriltive assistants, inspectors, clerical
                                         staff, ani other employees as it deems necessary
                                         to carry out the provisions of this Act. All
                                         employees receive such compensation as is fixed by
                                         the legis:.ature.

                                             (b) ns! commission shall employ the following:

                                             (1) grexecutive director;



                                                          p.   2495
Ms. Peggy Rosson - Page 2   (.Rl-542)




             (2)  a director of hearings who has          wide
          experience in   11t111ty regulation and         rate
          determination;

             (3) a chief engineer who is a reg:;:;;;z
          engineer and ar. expert in public
          engineering and rate matters;

             (4) a chief accountant who is a certified
          public accountaM experienced in public utility
          accounting;

             (5) a director,of research who. is experienced
          in the conduct of analyses of industry, economics,
          energy, fuel, and other related matters that the
          commission may want to undertake;

             (‘5) a director of consumer affairs and public
          information;

             (7)   a director of utility evaluation;

             (8)   a director of energy conservation; and

             (9) a general counsel.

             (c) The general counsel and his staff are
          responsible for the gathering of information
          relating to all natters within the authority of
          the emission.

             The duties of 1:h:e
                               general counsel include:

             (1) accumulatj.on of     evidence   and   other
          information from public utilities and from the
          accounting and technical and other staffs of the
          commission and from other sources for the purposes
          specified herein;

             (2) preparation and presentation of such
          evidence before i:he commission or its appointed
          examiner in proce~!dings;

             (3) conduct of   investigations of   public
          utilities under 1:he jurisdiction of the com-
          mission;

             (4) preparation of proposed changes in         the
          rules of the comm:tssion;




                                 p. 2496
    Ms. Peggy Rosson - Page 3   (Jh-542)




                (5) preparation of recommendations that the
             commission undertake investigation of any matter
             within its author:lt:y;

                 (6) preparation of recommendations and a
              report of such staff for inclusion in the annual
              report of the commission;

                 (7) protectlou and representation of the
              public interest and coordination and direction of
              the preparation amd presentation of evidence from
              the comnission staff in all cases before the
              commission as necessary to effect the objectives
              and purposes stated in this Act and ensure
              protection of the public interest; and purposes
              stated in this Act and ensure protection of the
              public interest; and

                 (8)  such other activities as are reasonably
              necessary to enab1.ehim to perform his duties.

                (d) The commission shall employ administrative
             law judges to preside at hearings of major import-
             ance before the cosmission. An administrative law
P            judge must be a licensed attorney with not less
             than five years' general experience or three
             years' experience Ln utility regulatory law. The
             administrative la18judge shall perform his duties
             independently frolrthe cornmission. The coomnission
             and parties who nosy appear before the commission
             may not communicate with an administrative law
             judge concerning any issue of fact or law in a
             contested case that has not been finally decided
             by the commission, except on notice and opportun-
             ity for all parties to participate.

                (e) The executive director or his designee
             shall develop ,%I11
                               _   intraagency career ladder
             program, one par: of which shall be the intra-
             agency posting of;111 nonentry level positions for
             at least 10 days TIefore any public posting. The
             executive director-or his designee shall develop a
             system of annual performance evaluations based on
             measurable job tasks. All merit pay for com-
             mission enployeee-must be based on the system
             established under This section.

                 (f) The execulzJvedirector or his/her designee
              shall prepare ar.d maintain a written plan to
              assure implemenGi:ion of a program of equal
P             employment oppor&nity    whereby all personnel
              transactions are-made without regard to race,



                                   p. 2497
Ms. Peggy Rosson - Page 4   (JM-542)




                                                                         -,

          color, disability,-sex. religion, age, or national
          origin. The plans shall include:

             (1) a comprehensive analysis of all the
          agency's work for-e by race, sex, ethnic origin,
          class of position, and salary or wage:

             (2) plans for recruitment, evaluation, selec-
          tion, appointmentI training, promotion, and other
          personnel policies;

             (3) steps reamnably designed to overcome any
          identified unden~tilization of minorities and
          women in the agency's work force; and

             (4) objectiver, and goals, timetables for the
          achievement of t,be objectives and goals, and
          assignments of responsibility for their achieve-
          ment.

             The plans shal,l be filed with the governor's
          office within 60 days of the effective date of
          this Act, cover sn annual period. and be updated
          at least annually. Progress reports shall be
          submitted to the rovernor's office within 30 days
          of November 1 and April 1 of each year and shall
          include the steps tthe agency has taken within the
          reporting   period     to   COrnplY with     these
          requirements. (EnLphasisadded).

     Your first question :ts whether the legislature intended the
executive director provid~zd for in section 8(b)(l) to be the
"executive head" of the PubHc Utilities Commission. Since "executive
head" has no precise meaning outside of a particular context, we
assume you are asking whethar the position of executive head of the
PUC was intended to be com!?srableto a position such as director of
the Texas Department of Corrections.        See V.T.C.S. art. 6166j
(provides that TDC shall deLlagateto the director authority to manage
the affairs of the prison sys;tem). In other words, we assume that you
are asking whether the legislature intended the executive director to
be the chief administrative employee of the PUC.

     Section 8(f) of PURA Ilets out specific duties of the executive
director of the PUC. Those :specificduties do not make the executive
director the chief administrative employee df the PUC. Rather, they
require him to "prepare and maintain" plans for various personnel
policies. If the legislature had intended to mandate that the exec-
utive director be the chief administrator of the PUC, it could have
easily done so. Cf. V.T.C.!:.art. 6166j. Because the legislature did
not do so, we mustconclude that PURA does not require that the exec-
utive director be the chief administrative employee of the PUC.



                            ‘3 ,   2490
Me. Peggy Rosson - Page 5    (,JM-542)




     You also ask whether the commissioners may delegate to the
executive director the task of carrying out the day-to-day administra-
tion of the PUC.

     Section 8(e) of PURA ,mts out certain specific duties that the
executive director must perjiorm. Also, the commissioners may, if they
choose. delegate to the executive director the ministerial and
administrative tasks involvoilin managing the day-to-day activities of
the PUC. Although acts invo:.vingofficial discretion must be performed
by the body designated by law, administrative or ministerial acts may
be delegated to others. The authority to hire new personnel or to
purchase supplies, for example, may be delegated to the executive
director or to any divisior chief listed in section 8 of art. 1446~.
Attorney General Opinion NCIS. WW-66 (1957); M-663 (1970). See also
Attorney General Opinion V-350 (1947) (discussion of distinction
between discretionary and m:.nisterialacts). Therefore, although PURA
does not require that the ex,ecutivedirector be the chief administra-
tive employee of the PUC, the commissioners may delegate that role to
the executive head, as lone;as they do not delegate responsibilities
that involve the exercise cf discretion, or that the legislature has
placed elsewhere.

                              SUMMARY

            Section 8 of theiPURA does not require that the
         executive   director   of   the   Public   Utility
         Commission be the chief administrative employee.
         The commissionerrr may, however, delegate any
         administrative or ministerial tasks to the execu-
         tive director tha: the legislature has not placed
         elsewhere.


                                          Very truly yoursj 1
                                              I
                                                         /In +-
                                         LJ
                                          JIM MATTOX
                                          Attorney General of Texas

JACK RIGETOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General



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