Updates from the 87th Legislature

SUMMARY OF 87TH LEGISLATIVE SESSION BILLS THAT IMPACT TEXAS’ RURAL WATER UTILITIES AND THEIR CUSTOMERS

The 87th Regular Session of the Texas Legislature ended on May 31, 2021, and between the ongoing COVID-19 pandemic and the February winter storm it proved to be a session like no other. Several of the bills have the potential to affect customers of rural water utilities across Texas. This article summarizes those new laws, which all go into effect on September 1 unless otherwise noted, and a group of bills that didn’t make it to the finish line. For a more extensive discussion of new laws that impact rural water utilities as well as bills that failed to pass, visit Texas Rural Water Association’s Rural Water Blog at this link.

RESPONSE TO THE WINTER STORM

S.B.3 (SCHWERTNER) - NEW LAW

February’s extreme weather event brought to light vulnerabilities in the state’s electrical grid and, in some cases, water utility infrastructure. The legislature responded with S.B. 3, which contains new weatherization and emergency preparation requirements for electricity providers, as well as provisions aimed at ensuring water service during events of this nature. The broad power outages experienced across the state in February were a leading cause of water service outages, because when water utilities lost electricity they were unable to run the equipment necessary to distribute water throughout their system. In addition to numerous provisions aimed at preventing a loss of electricity, S.B. 3 requires water utilities to be able to provide service as soon as it is safe and practicable to do so during a natural disaster. The bill also requires them to adopt and submit to the Texas Commission on Environmental Quality (TCEQ) a plan demonstrating their emergency preparedness. Utilities can meet this requirement in several ways, including participation in a statewide mutual aid program that facilitates the sharing of resources, including generators, during emergencies. S.B. 3 also requires utilities to work out payment plans with customers and prohibits disconnections for nonpayment during extreme weather events, which are defined as periods in which the previous day’s high temperature did not exceed 28 degrees Fahrenheit and is predicted to remain at that level for the next 24 hours. Most rural water utilities voluntarily suspended disconnects for nonpayment and worked out payment plans with customers during this winter’s event.

RURAL BROADBAND

H.B. 5 (ASHBY) - NEW LAW

There were several bills filed on expanding broadband access to rural parts of the state, but H.B. 5 emerged as the vehicle for this legislative priority. This bill creates a Broadband Development Office within the Office of the Comptroller, which is charged with studying broadband expansion to rural Texas. The new entity will also develop a map of underserved areas, defined as places where fewer than 80% of households have access to broadband; and create a development program to provide grants, low-interest loans, and other incentives to internet providers to expand access. The overall impact of this bill will likely depend on the way it is implemented, as well as funding by future legislatures.

PUBLIC INFORMATION ACT

H.B. 872 (BERNAL) - NEW LAW

Section 182.052 of the Utilities Code currently requires utilities to keep confidential the address, phone number, social security number, and usage information of their customers, but only if the customer requests that they do so. H.B. 872 improves the security of customers’ information by making confidentiality an automatic, rather than an “opt-in” process. Beginning September 1, utilities can refuse to provide this information in response to a Public Information Act request regardless of whether the customer has requested that they do so. If customers want to allow utilities to disclose this information, they may now opt out of the confidentiality provision by notifying the utility in writing.

PUBLIC INFO, CONT.

H.B. 1082 (KING) - NEW LAW S.B. 1225 (HUFFMAN) - NEW LAW

The Public Information Act has historically protected the home address, home telephone number, emergency contact information, and social security number of a statewide elected officer or member of the legislature from requests for public information. H.B. 1082 expanded this protection to elected local public officers of any entity subject to the Public Information Act, including districts, water supply corporations, and cities. The law became effective immediately after being signed by the governor on May 19.

PUBLIC INFORMATION ACT, CONT.

Last session, the legislature allowed governmental entities to temporarily suspend their requirements under the Public Information Act for requests made during a period of “catastrophe.” The ensuing COVID-19 pandemic prompted the legislature to clarify what that term means this session. S.B. 1225 clarifies that a situation does not qualify as a catastrophe simply because a governmental entity’s office is closed and its staff is working from home if the staff can still access information responsive to a request. Additionally, entities may only postpone their response by seven days due to a catastrophe, with one additional seven-day extension before they must comply. The bill also requires governmental entities to make a good faith effort to provide responsive information when their offices are required to be closed due to a catastrophic event.

In March 2020, Governor Abbott temporarily relaxed numerous requirements under the Texas Open Meetings Act (TOMA) to allow entities to conduct meetings virtually or by phone. Many systems have conducted meetings in this way during the COVID-19 pandemic, either allowing for fully remote participation by all directors and members of the public, or through a combination of in-person and remote participation. With almost a year of entities operating in this way when session convened in January, numerous legislators filed bills that would make some or all parts of this new way of doing business permanent. Some bills were extremely generous, essentially making permanent all facets of the governor’s ongoing temporary order. Others expanded on emergency remote meeting provisions currently in law or allowed individual board members to participate remotely if a quorum was still convened in a single physical location. Somewhat surprisingly, none of these bills passed despite TOMA being an often-amended statute even in a more typical session. As a result, virtual meetings will become a thing of the past once Governor Abbott rescinds his order from last spring, other than the narrow allowances currently proscribed by law. As of this writing, the governor has not rescinded his order, so fully remote meetings are still allowed at each entity’s discretion.