Sec. 203.0922. PREPAYMENT FUNDING AGREEMENT FOR RELOCATION OF UTILITY FACILITIES

(a) On the request of a utility, the commission shall by rule authorize the department to enter into a prepayment funding agreement with the utility to reimburse the utility for the direct and related indirect costs of the relocation of a utility facility that is required by the improvement of a segment of the state highway system, including a turnpike project or toll project, for which the utility is not eligible for reimbursement under Section 203.092. The agreement must:

(1) require the utility to prepay to the department an annual amount as provided by Subsection (b) or (c);

(2) be for a term:

(A) that is a multiple of three years; and

(B) of at least six years;

(3) set forth a methodology for the utility to submit, document, and substantiate reimbursable costs under the agreement; and

(4) set forth a methodology for the department to reimburse the utility its reimbursable costs under the agreement in a timely manner.

(b) The annual prepayment amount for each year of the initial three-year period of a prepayment funding agreement is equal to 75 percent of the annual average of the direct and related indirect costs incurred for relocation of the utility's facilities on applicable segments of the state highway system during the preceding three years for which the utility is not otherwise eligible for reimbursement under Section 203.092.

(c) The annual prepayment amount for each year of a subsequent three-year period of a prepayment funding agreement is equal to 75 percent of the annual average of the direct and related indirect costs paid by the department or reimbursed to the utility under the agreement for relocation of the utility's facilities on applicable segments of the state highway system during the preceding three years for which the utility is not otherwise eligible for reimbursement under Section 203.092.

(d) The department may not establish a prepayment amount that unreasonably discriminates among utilities.

(e) If a change in law causes all or a part of the cost of the relocation of a utility facility that was eligible for reimbursement under Section 203.092(a)(1) at the time a prepayment funding agreement was entered into under this section to cease to be eligible for reimbursement, that amount, beginning on the effective date of the applicable change in law, is considered to be a cost that is not otherwise eligible for reimbursement under Section 203.092 for purposes of the prepayment funding agreement.

(f) Notwithstanding any law to the contrary, an obligation of the commission or the department to make a payment to a utility under a prepayment funding agreement entered into under this section may be enforced by mandamus against the commission, the department, and the comptroller in a district court of Travis County, and the sovereign immunity of the state is waived for that purpose. The district courts of Travis County have exclusive jurisdiction and venue over any action brought under this subsection. The remedy provided by this subsection is in addition to any legal and equitable remedies that may be available to a party to a prepayment funding agreement.

(g) This section or a contractual right obtained under an agreement under this section does not:

(1) make the department or a utility subject to new or additional licensing, certification, or regulatory jurisdiction of the Public Utility Commission of Texas, Texas Department of Insurance, or Railroad Commission of Texas; or

(2) supersede or otherwise affect a provision of another law applicable to the department or a utility regarding licensing, certification, or regulatory jurisdiction of an agency listed in Subdivision (1).

(h) A payment received by the department under this section must be deposited to the credit of the state highway fund and is exempt from the application of Subchapter D, Chapter 316, Government Code, and Section 403.095, Government Code.

(i) The commission shall appoint a rules advisory committee to advise the department and the commission on development of the commission's rules, including initial rules and additions or changes to the rules, required by this section. The committee shall consist solely of members representing interested utilities. Chapter 2110, Government Code, does not apply to the committee.

(j) An agreement entered into by the department and a utility under this section remains in force until its termination or expiration.

(k) This section expires September 1, 2013.

Added by Acts 2007, 80th Leg., R.S., Ch. 121 , Sec. 2, eff. May 17, 2007.