ENTERGY TEXAS, INC., ET AL.,

Appellants,

v.

PUBLIC UTILITY COMMISSION OF TEXAS, INC., ET AL.,

Appellees.

REPLY BRIEF

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for

Civil Litigation

JON NIERMANN

Chief, Environmental Protection

Division

ELIZABETH R. B. STERLING

Assistant Attorney General

State Bar No. 19171100

elizabeth.sterling@texasattorneygeneral.gov

Environmental Protection Division

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

512.463.2012

512.457.4616 (fax)

June 2, 2015

Oral Argument Requested

NO. 03-14-00735-CV

Filed by: Public Utility Commission of Texas

ACCEPTED

03-14-00735-CV

5515882

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/2/2015 4:16:02 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/2/2015 4:16:02 PM JEFFREY D. KYLE Clerk
i

Table of Contents

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Glossary.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of Reply. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

A. In the fuel reconciliation, the Commission properly

removed $4 million in fuel expenses incurred to serve

wholesale customers from the amount of fuel expenses

Entergy should recover from its retail ratepayers... . . . . . . . . . 4

B. The Commission’s Order complies with its rules.. . . . . . . . . . . 5

C. The Commission’s Order resulted in just and reasonable

final fuel rates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

D. Entergy fails to show that it was harmed by the

Commission’s Order.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Conclusion and Prayer.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDICES

16 Tex. Admin. Code § 25.236. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

16 Tex. Admin. Code § 25.237.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B
ii

Index of Authorities

Cases Page(s)

Entergy Gulf States, Inc. v. Pub. Util. Comm’n, 

173 S.W.3d 199 (Tex. App.—Austin 2005, pet. denied). . . . . . . . . . . 6 

Statutes

Tex. Util. Code 

§ 11.002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

§ 36.203. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

Rules 

16 Tex. Admin. Code 

§§ 25.01–.508. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv 

§ 25.236(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii 

§ 25.236(d)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

§ 25.236(e)(1)(A) & (C).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 

§ 25.236(e)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

§ 25.236(e)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5, 8 

§ 25.236(e)(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 

§ 25.237(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii, 7 
iii

Glossary

ALJ Administrative Law Judge 

Cities Cities of Anahuac, Beaumont, Bridge City,

Cleveland, Conroe, Dayton, Groves, Houston,

Huntsville, Montgomery, Navasota, Nederland, Oak

Ridge North, Orange, Pine Forest, Rose City,

Pinehurst, Port Arthur, Port Neches, Shenandoah,

Silsbee, Sour Lake, Splendora, Vidor, and West

Orange, Texas These cities are in the service area of

Entergy Texas, Inc. and participated as parties in

the rate case at the Commission.

Commission Public Utility Commission of Texas

Entergy Entergy Texas, Inc., the utility that asked the

Commission to reconcile fuel expenses in this case

ERCOT Electric Reliability Council of Texas

FERC Federal Energy Regulatory Commission

Fuel factor A temporary rate set by the Commission to recover

the utility’s fuel costs See 16 Tex. Admin. Code

§ 25.237(a)(3).

Fuel reconciliation After the utility has collected for fuel costs using the

fuel factor, it returns to the Commission to reconcile

actual fuel costs with amounts recovered under the

Fuel Factor. See 16 Tex. Admin. Code § 25.236(b).

Line losses Electricity that the utility generates but is “lost” as it

travels along the wires from the generator to the

customer (More electricity is generated than is

metered where it is used.) 

Order The Commission’s order on rehearing that is the

subject of this lawsuit (AR, Item 244.) 
iv

Reconciliation period The two-year period from June 1, 2009, through

July 31, 2011; the period during which Entergy

incurred fuel expenses that were reconciled in this

administrative case 

Rule The Commission’s electric rules are found at 16

Texas Administrative Code §§ 25.01–508. In this

brief the Commission refers to its rules as Rule

25.___ rather than using the longer citation, i.e., 16

Tex. Admin. Code § 25.236(e)(3) will be referenced

as Rule 25.236(e)(3) in the brief.

$4 million A rounded-up amount used to represent the

$3,981,271 of fuel expenses that the concurrent lineloss study revealed was lost delivering electricity to

wholesale customers rather than delivering

electricity to retail customers during the

reconciliation period
v

Issues Presented

A utility recovers expenses for fuel used to generate electricity that is lost as

it is delivered to the customer. The Commission found that $4 million of

fuel expenses that was estimated in the temporary rates (called a fuel

factor) to be lost serving retail customers was actually lost serving

wholesale customers. Because the Commission only sets rates for retail

customers, did it reasonably deduct that $4 million from the costs that

Entergy could recover in its final rates (fuel reconciliation) from its retail

customers?
1

Introduction

The Commission files this reply to the “Fuel Costs” section of Entergy’s

Response Brief. 

The Commission properly removed nearly $4 million ($3,981,271) from

Entergy’s recoverable fuel expenses when it reconciled Entergy’s fuel

costs—when it determined the utility’s final fuel rates for retail service

provided during the two-year period from June 1, 2009, through July 31,

2011 (reconciliation period). Entergy’s concurrent line-loss study revealed

that $4 million was spent on fuel for electricity that was lost delivering the

electricity to wholesale customers rather than delivering that electricity to

retail customers. Thus, it was not part of the actual, retail fuel costs and

was properly excluded from final rates.

The fuel reconciliation revealed that estimated line losses of serving

retail customers were not the actual line losses of serving retail customers. 

The difference appeared because, when the Commission approved

Entergy’s fuel factor that applied during the reconciliation period, it used a

line-loss study performed in 1997. A line-loss study estimates the amount

of electricity that is lost while delivering it from the generator to the enduser. The cost for generating that lost electricity is billed to customers so

that the utility can recover its reasonable and necessary expenses. When
2

the Commission conducted the fuel reconciliation in this case, it used the

2010 line-loss study. That study, performed during the reconciliation

period and approved by the Commission in this case (AR, Order, FF

246–247), revealed that $4 million of fuel expenses that were estimated to

be lost delivering electricity to retail customers was actually lost delivering

electricity to wholesale customers.

Summary of Reply

Entergy’s arguments fail to acknowledge the impact of the jurisdictional

separation between the Commission, which sets Entergy’s retail rates, and

the Federal Energy Regulatory Commission (FERC), which sets Entergy’s

wholesale rates, on the line-loss issue in this appeal.

Entergy ignores the conclusions that naturally follow from the

jurisdictional separation. 

Because FERC sets Entergy’s wholesale rates and the Commission sets

only its retail rates, the fuel costs that the Commission allows Entergy to

recover in final fuel rates are only costs incurred to serve retail customers. 

Fuel costs incurred to serve wholesale customers cannot be included as

reasonable and necessary fuel expenses recovered from retail customers. 

Thus, the Commission properly excluded the cost of fuel used to generate

electricity that was lost (line losses) in order to serve wholesale customers
3

during the reconciliation period. The Commission reasonably used the

Commission-approved line-loss study done during the reconciliation

period because it more accurately determines the separation of wholesale

fuel costs from retail fuel costs that occurred as a result of line losses during

the relevant period.

Because the FERC sets Entergy’s wholesale rates and the Commission

sets only its retail rates, the classes included in rates set by the Commission

include only retail customer classes. Thus, interclass allocations that the

Commission makes under Rule 25.236(e)(3) are only among retail classes. 

But the Commission’s decision to separate out fuel expenses incurred to

serve wholesale customers affected the total amount of fuel expenses that

are reasonably and necessarily recovered through the Commission’s rates.

The Commission was not allocating those expenses among retail customer

classes. 

Because FERC sets Entergy’s wholesale rates and the Commission sets

only its retail rates, recovery of line losses from wholesale customers will be

controlled by FERC, not the Commission. Looking only at a Commissionset fuel factor and Commission-determined fuel reconciliation will show

nothing about whether Entergy recovered its expenses for fuel used to
4

generate electricity that was lost (line losses) in order to serve wholesale

customers. 

Argument

A. In the fuel reconciliation, the Commission properly

removed $4 million in fuel expenses incurred to serve

wholesale customers from the amount of fuel expenses

Entergy should recover from its retail ratepayers.

The Commission properly reconciled the amount of fuel expenses that

retail ratepayers actually owed for service during the reconciliation period

because the updated line-loss study revealed that $4 million in expenses for

fuel was incurred serving wholesale customers rather than serving retail

customers.

As explained in earlier Commission briefing, a utility’s fuel expenses are

recovered not through base rates, but through a two-step factor-andreconciliation process. The Commission adopts a temporary rate called a

fuel factor that estimates what the utility’s fuel expenses will be. But final

rates are determined after the expenses were incurred so that the final rate

accurately reflects the actual, reasonable and necessary amount the utility

incurred in fuel expenses to serve its customers during the reconciliation

period. The fuel factor is based on estimated costs, based on estimated

usage, and is a temporary rate; the fuel reconciliation is based on actual

costs, based on actual usage, and results in an actual rate.
5

There is no expectation that the estimated fuel expenses used to develop

the fuel factor will be the same as the actual fuel expenses found in the fuel

reconciliation. That is the very reason for the reconciliation. The two-step

factor-and-reconciliation process is used precisely because it is expected

that the estimated fuel expenses will differ from the actual fuel expenses. 

Thus, there is nothing exceptional about the Commission’s decision that

retail ratepayers actually used less electricity during the reconciliation

period than estimated. That this difference in usage was revealed by the

most current line-loss study is no reason to ignore that less electricity was

generated, and therefore less fuel used, to serve retail customers. Expenses

incurred to serve wholesale, rather than retail, customers are not

reasonable and necessary expenses to include in retail rates.

B. The Commission’s Order complies with its rules.

Contrary to Entergy’s arguments, Rule 25.236(e)(3) does not apply to

the Commission’s decision that $4 million in wholesale costs should be

removed from final retail fuel rates. Expenses to serve wholesale customers

are not included in the pot of fuel expenses that the Commission allocates

among retail rate classes.

Not only is Rule 25.236(e)(3) about refunds, which Entergy did not

request in this case, but more fundamentally, the Commission can only
Entergy’s indication on page 14 of its response brief is thus wrong: Entergy’s

1

wholesale customers cannot buy electricity under a Commission tariff. 

6

apply that rule to Entergy’s retail rate classes. This is necessarily true

because the Commission can only set retail rates for Entergy. See Entergy

Gulf States, Inc. v. Pub. Util. Comm’n, 173 S.W.3d 199, 207 (Tex.

App.—Austin 2005, pet. denied) (explaining that FERC regulates the sale of

Entergy’s sale of electricity at wholesale (citing 16 U.S.C. § 824(b); Entergy

La., Inc. v. Louisiana Pub. Serv. Comm’n, 539 U.S. 39, 41, 156 L.Ed.2d 34

(2003)). The Commission cannot order refunds or assess surcharges

against Entergy’s wholesale customers because the Commission has no

jurisdiction to set Entergy’s wholesale rates—only its retail rates. Thus, the 1

Commission’s decision that $4 million in fuel costs were incurred to serve

wholesale rather than retail customers is unaffected by a rule that

addresses Entergy’s interclass allocations only among retail classes.

None of the other rules Entergy cites require the Commission to impose

wholesale fuel costs on retail customers. 

• Rules 25.236(e)(1)(A) & (C) are about the calculation of interest. That

does not impact the Commission’s authority as part of the fuel

reconciliation to determine that fuel costs incurred to serve wholesale

customers are not to be imposed on retail customers.
7

• Rule 25.236(e)(2). Because the Commission sets no wholesale rates,

there is no Commission-tariffed rate schedule for wholesale customers

that the Commission has authority to adjust.

• Rule 25.236(e)(4) concerns intraclass allocations. Although it mentions

wholesale customers, it can have no application to the Commission’s

regulation of Entergy because the Commission has no jurisdiction to set

wholesale rates for Entergy. Because that utility is outside ERCOT, its

wholesale sales are in interstate commerce.

And the rules the Commission cited in its Order do apply.

• Rule 25.236(d)(2). Because the Commission sets only retail rates, it

would be unreasonable for the Commission to include fuel expenses

incurred to serve wholesale customers in the actual, final rates, and any

wholesale fuel expenses Entergy recovered from its retail customers

through the fuel factor were an over-recovery from its retail customers.

• Rule 25.237(a)(3). Because fuel factors are only temporary rates, the

Commission can adjust final fuel rates in the reconciliation proceeding

to reflect the utility’s actual fuel expenses to serve retail customers

during the reconciliation period. In the reconciliation, the Commission

is free to use a current line-loss study to determine what fuel expenses

Entergy actually incurred due to line losses serving its retail customers. 
8

Finally, there is no conflict between these rules and Rule 25.236(e)(3). 

Because, for Entergy, the Commission only has authority to set retail rates,

the Commission-set rates include only retail rate classes. Therefore, the

interclass allocations addressed in Rule 25.236(e)(3) apply only to retail

rate classes.

C. The Commission’s Order resulted in just and reasonable

final fuel rates.

The Commission’s Order implements the statutorily prescribed

legislative intent. That intent is stated in Section 11.002 of the Utilities

Code: “The purpose of this title is to establish a comprehensive and

adequate regulatory system for public utilities to assure rates, operations,

and services that are just and reasonable to the consumers and to the

utilities.” The Commission regulates only retail rates for Entergy. And the

Legislature, in Section 36.203 of the Utilities Code, authorized the

Commission to use a fuel factor—a process where final fuel rates are not

determined until a fuel reconciliation is done after the actual expenses are

known. The Commission’s decision—refusing to allow Entergy to recover

fuel expenses incurred to serve wholesale customers from retail

customers—fulfills the legislative intent. It is reasonable to consumers and

to the utility to require retail customers to pay only for expenses incurred to

provide service to retail customers. And the change from the estimated
9

amount to the actual amount was effected through the two-step fuel-factorand-reconciliation process authorized by the Legislature.

Entergy’s attempts to show the Commission’s decision as anything other

than reasonable are unavailing. Entergy’s statement: “Nor did any party

challenge the reasonableness or necessity of the fuel costs actually incurred

for the reconciliation period,” (Entergy Resp. Br. at 4; see also at 19) is at

best misleading. 

While it is true that no party challenged whether the prices Entergy paid

for its fuel were too high, Cities challenged the reasonableness of including

$4 million of fuel expenses that were actually incurred to serve wholesale

customers in fuel rates for only retail customers. Cities’ witness Nalepa

stated: “[Entergy]’s own analysis demonstrates that adjusting the

allocation of fuel costs over the reconciliation period to reflect the actual

line losses for each voltage level for the reconciliation period results in

retail customers subsidizing wholesale customers by approximately $3.98

million.” (AR, Cities Ex. 6 at 44, Binder 9.) And Cities’ brief filed at the

administrative proceeding states: “Failing to reflect the actual line losses

for the reconciliation period ... would result in Texas retail customers

subsidizing wholesale and non-fuel factor customers by $3,981,271.” (AR,

Item 161 (Cities’ Initial Br.) at 86, Binder 4.) This testimony and argument
10

show that Cities challenged the reasonableness of including fuel expenses

incurred to serve wholesale customers in Entergy’s final fuel rates for retail

service.

Entergy is also wrong to suggest that the Commission’s Order fails to

support its decision. Although the Commission’s Order could have been

stated more clearly, when read as a whole, the Order’s finding that

Entergy’s “fuel reconciliation over-recovery should be reduced by

$3,981,271” (Order, FF 246A) reveals that, although Entergy paid

reasonable amounts for the fuel it purchased, Entergy over-recovered

approximately $4 million in fuel expenses that was incurred to serve

wholesale, rather than retail customers. 

The findings that Entergy cites, Findings 214 and 217, 218 and 221, and

222 and 225, show that the amounts paid for natural gas expenses, coal

expenses, and purchased-energy expenses were reasonable. Although it

would have been clearer had the Commission modified those findings when

it added Finding 246A, all the findings taken together with the discussion

on page nine of the Order explain that the overall amount of retail fuel

expenses, modified by removing the $3,981,271 for fuel expenses incurred

to serve wholesale customers, is the reasonable and necessary amount. 

And Conclusion of Law 17 does not include any amount. The amount of
11

fuel expenses the Commission found reasonable and necessary is the

amount that results from all of its findings of fact, including Finding 246A.

The Commission’s Order complies with the legislative intent that the

Commission use a two-step fuel-factor-and-reconciliation process to

develop rates that are reasonable to the consumers and to the utility. The

Order is supported by the record and is internally consistent.

D. Entergy fails to show that it was harmed by the

Commission’s Order.

Because FERC, not the Commission, sets wholesale rates, any recovery

of line losses from wholesale customers will be controlled by FERC, not the

Commission. Thus, looking only at a Commission-set retail fuel factor and

Commission-determined retail fuel reconciliation will reveal nothing about

whether Entergy recovered its expenses for fuel used to generate electricity

that was lost (line losses) serving wholesale customers. 

The record in this case contains no evidence about Entergy’s FERC-set

wholesale rates. Thus, the evidence equally supports a finding that

Entergy’s wholesale fuel costs were under-recovered or over-recovered.

The testimony Entergy cites to show harm is unavailing. First, Entergy’s

witness stated: “you’re going outside my expertise.” (AR Part III, Binder

43, Vol. I (May 1, 2012, Tr. at 1470–410).) And the witness further

assumes: “you retroactively change an allocation factor and you don’t have
12

the ability to go back and recover those costs from anyone else,” but, as

explained above, the Commission did not allocate costs to any wholesale

rate class. Thus, the Commission neither allocates nor adjusts an allocation

of those costs to wholesale customers; the Commission only allocates retail

costs among retail customers. Moreover, because Entergy provided no

information about wholesale rates, which are set by the FERC, the Court

cannot know whether Entergy has “the ability to go back and recover those

costs from anyone else” or whether the utility already recovered those costs

from wholesale customers.

Entergy has not shown that it was harmed.

Conclusion and Prayer

Entergy’s arguments against the Commission’s fuel-costs decision fail to

appreciate that FERC sets Entergy’s wholesale rates and the Commission

sets only retail rates. When the Commission determined that $4 million of

costs Entergy claimed as fuel expenses to serve retail customers were

actually incurred to serve wholesale customers, it reasonably removed that

amount from the fuel expenses Entergy could recover from retail customers

through the fuel reconciliation. 

The Commission asks the Court to issue the judgment that the district

court should have issued: one that affirms the Commission’s Order on all
13

issues. Thus, the Commission asks the Court to affirm the district court’s

judgment on the issues raised by Entergy and OPUC, but to reverse the

district court’s judgment to the extent that it found error in the

Commission’s Order. The Commission asks the Court for such other relief

as it may be entitled.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil Litigation

JON NIERMANN

Division Chief

Environmental Protection Division

/s/ Elizabeth R. B. Sterling 

Elizabeth R. B. Sterling

Assistant Attorney General 

Texas State Bar No. 19171100

elizabeth.sterling@texasattorneygeneral.gov 

Environmental Protection Division

Office of the Attorney General

P.O. Box 12548, MC-066

Austin, Texas 78711-2548

512.463.2012

512.457.4616 (fax)

COUNSEL FOR PUBLIC UTILITY

COMMISSION OF TEXAS
14

Certificate of Compliance

I certify that the foregoing computer-generated document has 2,507

words, calculated using the computer program WordPerfect 12, pursuant to

Texas Rule of Appellate Procedure 9.4, and that the total number of words

for all of the Commission’s briefing is 15,905.

 /s/ Elizabeth R. B. Sterling 

Elizabeth R. B. Sterling
15

Certificate of Service

I hereby certify that on this the 2nd day of June 2015, a true and

correct copy of the foregoing document was served on the following counsel

electronically, through an electronic filing service and by email:

 /s/ Elizabeth R. B. Sterling 

Elizabeth R. B. Sterling

Counsel for Appellant Entergy Texas, Inc.:

Marnie A. McCormick 

Patrick J. Pearsall

Duggins, Wren, Mann & Romero, LLP 

P. O. Box 1149

Austin, Texas 78767-1149

512.744.9300

512.744.9399 (fax)

mmccormick@dwmrlaw.com 

ppearsall@dwmrlaw.com 

Counsel for Appellants Cities of Anahuac, et al.:

Daniel J. Lawton

The Lawton Law Firm, P.C.

12600 Hill Country Blvd, Ste. R-275

Austin, TX 78738

512.322.0019

855.298.7978 (fax)

dlawton@ecpi.com
16

Counsel for Appellant Office of Public Utility Counsel:

Sara J. Ferris

Senior Assistant Public Counsel

Office of Public Utility 

P.O. Box 12397

Austin, Texas 78711-2397

512.936.7500

512.936.7520 (fax)

sara.ferris@opuc.texas.gov

Counsel for State Agencies:

Katherine H. Farrell 

Assistant Attorney General 

Administrative Law Division 

Energy Rates Section 

Office of the Attorney General

P.O. Box 12548, MC 018-12 

Austin, Texas 78711-2548 

512.475.4237 

512.320.0167 (fax)

katherine.farrell@texasattorneygeneral.gov

Counsel for Texas Industrial Energy Consumers:

Rex VanMiddlesworth

Benjamin Hallmark

Thompson & Knight LLP

98 San Jacinto Blvd., Ste. 1900

Austin, Texas 78701

512.469.6100

512.469.6180 (fax)

rex.vanm@tklaw.com

benjamin.hallmark@tklaw.com
APPENDIX A
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS. 

Subchapter F. METERING. 

§25.236--1 effective 6/10/14

(P 41905)

§25.236. Recovery of Fuel Costs.

(a) Eligible fuel expenses. Eligible fuel expenses include expenses properly recorded in the Federal 

Energy Regulatory Commission Uniform System of Accounts, numbers 501, 502, 503, 509, 518, 536, 

547, and 555, as modified in this subsection, as of April 1, 2013, and the items specified in paragraph 

(8) of this subsection. Any later amendments to the System of Accounts are not incorporated into this 

subsection. Subject to the commission finding special circumstances under paragraph (7) of this 

subsection, eligible fuel expenses are limited to:

(1) For any account, the electric utility may not recover, as part of eligible fuel expense, costs 

incurred after fuel is delivered to the generating plant site, for example, but not limited to, 

operation and maintenance expenses at generating plants, costs of maintaining and storing 

inventories of fuel at the generating plant site, unloading and fuel handling costs at the 

generating plant, and expenses associated with the disposal of fuel combustion residuals. 

Further, the electric utility may not recover maintenance expenses and taxes on rail cars 

owned or leased by the electric utility, regardless of whether the expenses and taxes are 

incurred or charged before or after the fuel is delivered to the generating plant site. The 

electric utility may not recover an equity return or profit for an affiliate of the electric utility, 

regardless of whether the affiliate incurs or charges the equity return or profit before or after 

the fuel is delivered to the generating plant site. In addition, all affiliate payments must 

satisfy the Public Utility Regulatory Act (PURA) §36.058.

(2) For Accounts 501 and 547, the only eligible fuel expenses are the delivered cost of fuel to the 

generating plant site excluding fuel brokerage fees. For Account 501, revenues associated 

with the disposal of fuel combustion residuals will also be excluded.

(3) For Account 502, the only eligible fuel expenses are environmental consumables that are: 

properly recorded in the Account as chemicals; required to comply with applicable state or 

federal emission reduction statutes, orders, and regulations; and whose use is directly 

proportional to the fuel consumed to generate electricity.

(4) For Account 509, the only eligible fuel expenses are allowances expensed concurrent with the 

monthly emissions of sulfur dioxide and nitrogen oxides.

(5) For Accounts 518 and 536, the only eligible fuel expenses are the expenses properly recorded 

in the Account excluding brokerage fees. For Account 503, the only eligible fuel expenses 

are the expenses properly recorded in the Account, excluding brokerage fees, return, non-fuel 

operation and maintenance expenses, depreciation costs and taxes. 

(6) For Account 555, the electric utility may not recover demand or capacity costs.

(7) Upon demonstration that such treatment is justified by special circumstances, an electric 

utility may recover as eligible fuel expenses fuel or fuel related expenses otherwise excluded 

in paragraphs (1) - (6) of this subsection. In determining whether special circumstances exist, 

the commission shall consider, in addition to other factors developed in the record of the 

reconciliation proceeding, whether the fuel expense or transaction giving rise to the ineligible 

fuel expense resulted in, or is reasonably expected to result in, increased reliability of supply 

or lower fuel expenses than would otherwise be the case, and that such benefits received or 

expected to be received by ratepayers exceed the costs that ratepayers otherwise would have 

paid or otherwise would reasonably expect to pay.

(8) Eligible fuel expenses shall not be offset by revenues by affiliated companies for the purpose 

of equalizing or balancing the financial responsibility of differing levels of investment and 

operation costs associated with transmission assets. In addition to the expenses designated in 

paragraphs (1) - (7) of this subsection, unless otherwise specified by the commission, eligible 

fuel expenses shall be offset by:

(A) revenues from steam sales included in Accounts 504 and 456 to the extent expenses 

incurred to produce that steam are included in Account 503;
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS. 

Subchapter F. METERING. 

§25.236--2 effective 6/10/14

(P 41905)

(B) revenues from off-system sales in their entirety, except as permitted in paragraph (9) 

of this subsection; and

(C) revenues from disposition of allowances properly recorded in Account 411.8.

(9) Shared margins from off-system sales. An electric utility may retain 10% of the margins 

from an off-system energy sales transaction if the following criteria are met:

(A) the electric utility participates in a transmission region governed by an independent 

system operator or a functionally equivalent independent organization;

(B) a generally-applicable tariff for firm and non-firm transmission service is offered in 

the transmission region in which the electric utility operates; and

(C) the transaction is not found to be to the detriment of its retail customers.

(b) Reconciliation of fuel expenses. Electric utilities shall file petitions for reconciliation on a periodic 

basis so that any petition for reconciliation shall contain a maximum of three years and a minimum of 

one year of reconcilable data and will be filed no later than six months after the end of the period to be 

reconciled. 

(c) Petitions to reconcile fuel expenses. In addition to the commission prescribed reconciliation 

application, a fuel reconciliation petition filed by an electric utility must be accompanied by a 

summary and supporting testimony that includes the following information:

(1) a summary of significant, atypical events that occurred during the reconciliation period that 

affected the economic dispatch of the electric utility's generating units, including but not 

limited to transmission line constraints, fuel use or deliverability constraints, unit operational 

constraints, and system reliability constraints;

(2) a general description of typical constraints that limit the economic dispatch of the electric 

utility's generating units, including but not limited to transmission line constraints, fuel use or 

deliverability constraints, unit operational constraints, and system reliability constraints;

(3) the reasonableness and necessity of the electric utility's eligible fuel expenses and its mix of 

fuel used during the reconciliation period;

(4) a summary table that lists all the fuel cost elements which are covered in the electric utility's 

fuel cost recovery request, the dollars associated with each item, and where to find the item in 

the prefiled testimony;

(5) tables and graphs which show generation (MWh), capacity factor, fuel cost (cents per kWh 

and cents per MMBtu), variable cost and heat rate by plant and fuel type, on a monthly basis; 

and

(6) a summary and narrative of the next-day and intra-day surveys of the electricity markets and a 

comparison of those surveys to the electric utility's marginal generating costs.

(d) Fuel reconciliation proceedings. Burden of proof and scope of proceeding are as follows:

(1) In a proceeding to reconcile fuel factor revenues and expenses, an electric utility has the 

burden of showing that:

(A) its eligible fuel expenses during the reconciliation period were reasonable and 

necessary expenses incurred to provide reliable electric service to retail customers;

(B) if its eligible fuel expenses for the reconciliation period included an item or class of 

items supplied by an affiliate of the electric utility, the prices charged by the 

supplying affiliate to the electric utility were reasonable and necessary and no higher 

than the prices charged by the supplying affiliate to its other affiliates or divisions or 

to unaffiliated persons or corporations for the same item or class of items; and

(C) it has properly accounted for the amount of fuel-related revenues collected pursuant 

to the fuel factor during the reconciliation period.
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS. 

Subchapter F. METERING. 

§25.236--3 effective 6/10/14

(P 41905)

(2) The scope of a fuel reconciliation proceeding includes any issue related to determining the 

reasonableness of the electric utility's fuel expenses during the reconciliation period and 

whether the electric utility has over- or under-recovered its reasonable fuel expenses.

(e) Refunds. All fuel refunds and surcharges shall be made using the following methods.

(1) Interest shall be calculated on the cumulative monthly ending under- or over-recovery 

balance at the rate established annually by the commission for overbilling and underbilling in 

§25.28 (c) and (d) of this title (relating to Bill Payment and Adjustments). Interest shall be 

calculated based on principles set out in subparagraphs (A) - (E) of this paragraph.

(A) Interest shall be compounded annually by using an effective monthly interest factor.

(B) The effective monthly interest factor shall be determined by using the algebraic 

calculation x = (1 + i) (1/12) - 1; where i = commission-approved annual interest 

rate, and x = effective monthly interest factor. 

(C) Interest shall accrue monthly. The monthly interest amount shall be calculated by 

applying the effective monthly interest factor to the previous month's ending 

cumulative under/over recovery fuel and interest balance.

(D) The monthly interest amount shall be added to the cumulative principal and interest 

under/over recovery balance.

(E) Interest shall be calculated through the end of the month of the refund or surcharge.

(2) Rate class as used in this subparagraph shall mean all customers taking service under the 

same tariffed rate schedule, or a group of seasonal agricultural customers as identified by the 

electric utility.

(3) Interclass allocations of refunds and surcharges, including associated interest, shall be 

developed on a month-by-month basis and shall be based on the historical kilowatt-hour 

usage of each rate class for each month during the period in which the cumulative under- or 

over-recovery occurred, adjusted for line losses using the same commission-approved loss 

factors that were used in the electric utility's applicable fixed or interim fuel factor.

(4) Intraclass allocations of refunds and surcharges shall depend on the voltage level at which the 

customer receives service from the electric utility. Retail customers who receive service at 

transmission voltage levels, all wholesale customers, and any groups of seasonal agricultural 

customers as identified by the electric utility shall be given refunds or assessed surcharges 

based on their individual actual historical usage recorded during each month of the period in 

which the cumulative under- or over-recovery occurred, adjusted for line losses if necessary. 

All other customers shall be given refunds or assessed surcharges based on the historical 

kilowatt-hour usage of their rate class.

(5) Unless otherwise ordered by the commission, all refunds shall be made through a one-time 

bill credit and all surcharges shall be made on a monthly basis over a period not to exceed 12 

months through a bill charge. However, refunds may be made by check to municipallyowned electric utility systems if so requested. Retail customers who receive service at 

transmission voltage levels, all wholesale customers, and any groups of seasonal agricultural 

customers as identified by the electric utility shall be given a one-time credit or assessed a 

surcharge made on a monthly basis over a period not to exceed 12 months through a bill 

charge. All other customers shall be given a credit or assessed a surcharge based on a factor 

which will be applied to their kilowatt-hour usage over the refund or surcharge period. This 

factor will be determined by dividing the amount of refund or surcharge allocated to each rate 

class by forecasted kilowatt-hour usage for the class during the period in which the refund or 

surcharge will be made.
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS. 

Subchapter F. METERING. 

§25.236--4 effective 6/10/14

(P 41905)

(6) A petition to surcharge or refund a fuel under- or over-recovery balance not associated with a 

proceeding under subsection (d) of this section shall be processed in accordance with the 

filing schedules in §25.237(d) of this title (relating to Fuel factors) and the deadlines in 

§25.237(e) of this title.

(f) Procedural schedule. Upon the filing of a petition to reconcile fuel expenses in a separate 

proceeding, the presiding officer shall set a procedural schedule that will enable the commission to 

issue a final order in the proceeding within one year after a materially complete petition was filed. 

However, if the deadlines result in a number of electric utilities filing cases within 45 days of each 

other, the presiding officers shall schedule the cases in a manner to allow the commission to 

accommodate the workload of the cases irrespective of whether such procedural schedule enables the 

commission to issue a final order in each of the cases within one year after a materially complete 

petition is filed.
APPENDIX B
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS.

Subchapter J. COSTS, RATES AND TARIFFS.

DIVISION 1: RETAIL RATES. 

§25.237--1 9/04/08

§25.237. Fuel Factors.

(a) Use and calculation of fuel factors. An electric utility's fuel costs will be recovered from the 

electric utility's customers by the use of a fuel factor that will be charged for each kilowatt-hour 

(kWh) consumed by the customer.

(1) An electric utility may determine its fuel factor in dollars per kilowatt-hour pursuant to 

either subparagraph (A) or (B) of this paragraph. Fuel factors must account for system 

losses and for the difference in line losses corresponding to the voltage at which the electric 

service is provided. An electric utility may have different fuel factors for different times of 

the year to account for seasonal variations. A different method of calculation may be 

allowed upon a showing of good cause by the electric utility.

(A) Fuel factors may be determined by dividing the electric utility’s projected net 

eligible fuel expenses, as defined in §25.236(a) of this title (relating to Recovery of 

Fuel Costs), by the corresponding projected kilowatt-hour sales for the period in 

which the fuel factors are expected to be in effect.

(B) Fuel factors may be determined using a commission-approved, utility-specific fuel 

factor formula. Fuel factor formulas may be approved or revised only in a general 

rate change proceeding or a proceeding to consider an application to establish a 

fuel factor formula with notice and an opportunity for a hearing.

(2) An electric utility may initiate a change to its fuel factor as follows:

(A) Pursuant to subsection (a)(1)(A) of this section, an electric utility may petition to 

adjust its fuel factor as often as once every four months according to the schedule 

set out in subsection (d) of this section.

(B) Pursuant to subsection (a)(1)(B) of this section, an electric utility may petition to

adjust its fuel factor in accordance with its approved fuel factor formula no sooner 

than four months after the filing of its most recent fuel factor adjustment petition.

(C) Notwithstanding subsection (a)(2)(A) of this section, an electric utility may petition 

to change its fuel factor at times other than provided in the schedule if an 

emergency exists as described in subsection (f) of this section.

(D) An electric utility's fuel factor may be changed in any general rate proceeding.

(3) Fuel factors are temporary rates, and the electric utility's collection of revenues by fuel 

factors is subject to the following adjustments:

(A) The reasonableness of the fuel costs that an electric utility has incurred will be 

periodically reviewed in a reconciliation proceeding, as described in §25.236 of 

this title, and any disallowed costs resulting from a reconciliation proceeding will 

be reflected in the calculation of the utility’s recoverable fuel and over/(under) 

collections.

(B) To the extent that there are variations between the fuel costs incurred and the 

revenues collected, it may be necessary or convenient to refund overcollections or 

surcharge undercollections. Refunds or surcharges may be made without changing 

an electric utility's fuel factor. Nothwithstanding §25.236(e)(6) of this title, an 

electric utility may petition for a surcharge any time it has materially 

undercollected its fuel costs and projects that it will continue to be in a state of 

material undercollection. Notwithstanding §25.236(e)(6) of this title, an electric 

utility shall petition to make a refund any time it has materially overcollected its 
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS.

Subchapter J. COSTS, RATES AND TARIFFS.

DIVISION 1: RETAIL RATES. 

§25.237--2 9/04/08

§25.237(a)(3)(B) continued

fuel costs and projects that it will continue to be in a state of material 

overcollection. "Materially" or "material," as used in this section, shall mean that 

the cumulative amount of over- or under-recovery, including interest, is greater 

than or equal to 4.0% of the annual actual fuel cost figures on a rolling 12-month 

basis, as reflected in the utility’s monthly fuel cost reports as filed by the utility 

with the commission.

(b) Petitions to revise fuel factors.

(1) An electric utility using the fuel factor methodology set forth under subsection (a)(1)(A) of 

this section may file a petition requesting revised fuel factors pursuant to subsection 

(a)(2)(A) of this section during the first five business days of the months specified in 

subsection (d) of this section. A copy of the complete petition package shall be served on 

each party in the utility’s most recent fuel reconciliation and on the Office of Public Utility 

Counsel. Service shall be accomplished by email if possible. Each complete filing package 

shall include the commission-prescribed fuel factor application, a tariff sheet reflecting the 

proposed fuel factors and supporting testimony that includes the following information:

(A) For each month of the period in which the fuel-factor has been in effect and has not 

been reconciled up to the most recent month for which information is available,

(i) the revenues collected pursuant to fuel factors by customer class;

(ii) any other items that to the knowledge of the electric utility have affected 

fuel factor revenues and eligible fuel expenses; and

(iii) the difference, by customer class, between the revenues collected pursuant 

to fuel factors and the eligible fuel expenses incurred.

(B) For each month of the period for which the revised fuel factors are expected to be 

in effect, provide system energy input and sales, accompanied by the calculations 

underlying any differentiation of fuel factors to account for differences in line 

losses corresponding to the voltage at which the electric service is provided.

(2) An electric utility using the fuel factor formula methodology set forth under subsection 

(a)(1)(B) of this section may file a petition requesting revised fuel factors pursuant to 

subsection (a)(2)(B) of this section at least 15 days prior to the first billing cycle in the 

billing month in which the proposed fuel factors are requested to become effective. A copy

of the complete petition package shall be served on each party in the utility’s most recent 

fuel reconciliation and on the Office of Public Utility Counsel. Service shall be 

accomplished by email if possible. Each complete filing package shall include:

(A) a tariff sheet reflecting the proposed fuel factors;

(B) workpapers supporting the calculation of the revised fuel factors;

(C) calculations underlying any differentiation of fuel factors to account for differences 

in line losses corresponding to the voltage at which the electric service is provided; 

and

(D) any computer generated documents must be provided in their native electronic 

format with all cells and internal formulas disclosed.
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS.

Subchapter J. COSTS, RATES AND TARIFFS.

DIVISION 1: RETAIL RATES. 

§25.237--3 9/04/08

§25.237 continued

(c) Fuel factor revision proceeding. Burden of proof and scope of proceeding are as follows:

(1) In a proceeding to revise fuel factors pursuant to subsection (a)(1)(A) of this section, an 

electric utility has the burden of proving that:

(A) the expenses proposed to be recovered through the fuel factors are reasonable 

estimates of the electric utility's eligible fuel expenses during the period that the 

fuel factors are expected to be in effect;

(B) the electric utility's estimated monthly kilowatt-hour system sales and off-system 

sales are reasonable estimates for the period that the fuel factors are expected to be 

in effect; and

(C) the proposed fuel factors are reasonably differentiated to account for line losses 

corresponding to the voltage at which the electric service is provided.

(2) The scope of a fuel factor revision proceeding under subsection (a)(1)(B) of this section is 

limited to the issue of whether the petitioning electric utility has appropriately calculated its 

proposed fuel factors. In a proceeding to revise fuel factors pursuant to subsection (a)(1)(B) 

of this section, an electric utility has the burden of proving that:

(A) the electric utility has calculated its proposed fuel factors in compliance with the 

commission-approved fuel factor formula; and

(B) the proposed fuel factors utilize a commission-approved adjustment to account for 

line losses corresponding to the voltage at which the electric service is provided.

(d) Schedule for filing petitions to revise fuel factors. A petition to revise fuel factors or to initiate or 

revise a fuel factor formula may be filed with any general rate proceeding.

(1) Otherwise, except as provided by subsection (f) of this section which addresses emergencies, 

petitions by an electric utility to revise fuel factors pursuant to subsection (a)(1)(A) of this 

section may only be filed in accordance with the following schedule:

(A) February, June and October : El Paso Electric Company;

(B) March, July and November : Entergy Texas, Inc.;

(C) April, August and December : Southwestern Public Service Company;

(D) May, September and January : Southwestern Electric Power Company; and

(E) March, July and November : any other electric utility not named in this subsection 

that uses one or more fuel factors.

(2) Petitions by an electric utility to revise fuel factors pursuant to subsection (a)(1)(B) of this 

section may be filed in any month except December.

(e) Procedural schedules.

(1) Upon the filing of a petition to revise fuel factors pursuant to subsection (a)(1)(A) of this 

section, the presiding officer shall set a procedural schedule that will enable the commission 

to issue a final order in the proceeding as follows:

(A) within 60 days after the petition was filed, if no hearing is requested within 30 days 

of the petition; and

(B) within 90 days after the petition was filed, if a hearing is requested within 30 days 

of the petition. If a hearing is requested, the hearing will be held no earlier than 

the first business day after the 45th day after the application was filed.
CHAPTER 25. SUBSTANTIVE RULES APPLICABLE TO ELECTRIC SERVICE 

PROVIDERS.

Subchapter J. COSTS, RATES AND TARIFFS.

DIVISION 1: RETAIL RATES. 

§25.237--4 9/04/08

§25.237(e) continued

(2) Upon the filing of a petition to revise fuel factors pursuant to subsection (a)(1)(B) of this 

section, the presiding officer shall set a procedural schedule as follows:

(A) the presiding officer shall issue an order approving the proposed fuel factors on an 

interim basis no later than 12 days after the date the petition was filed, if no 

objection to interim approval is filed within 10 days after the date the petition was 

filed;

(B) if no hearing is requested within 30 days after the petition was filed, the presiding 

officer shall, after submission of proof of notice by the electric utility, issue an 

order approving the fuel factors without hearing or action by the commission; and

(C) if a hearing is requested within 30 days after the petition was filed, the hearing will 

be held no earlier than the first business day after the 45th day after the petition 

was filed and a final order will be issued within 90 days after the petition was filed, 

subject to submission of proof of notice by the electric utility.

(f) Emergency revisions to the fuel factor. If fuel curtailments, equipment failure, strikes, embargoes, 

sanctions, or other reasonably unforeseeable circumstances have caused a material under-recovery of 

eligible fuel costs, the electric utility may file a petition with the commission requesting an 

emergency interim fuel factor. Such emergency requests shall state the nature of the emergency, the 

magnitude of change in fuel costs resulting from the emergency circumstances, and other 

information required to support the emergency interim fuel factor. The commission shall issue an 

interim order within 30 days after such petition is filed to establish an interim emergency fuel factor. 

If within 120 days after implementation, the emergency interim factor is found by the commission to 

have been excessive, the electric utility shall refund all excessive collections with interest calculated 

on the cumulative monthly ending under- or overrecovery balance in the manner and at the rate 

established by the commission for overbilling and underbilling in §25.28(c) and (d) of this title 

(relating to Bill Payment and Adjustments Billing). If, after full investigation, the commission 

determines that no emergency condition existed, a penalty of up to 10% of such over-collections may 

also be imposed on investor-owned electric utilities.