JIM MAlTOX 

Attorney General 

Supreme Court Bullding 

P. 0. BOX 12543 

Austin. TX. 7971% 2549 

5121475-2501 

Telex 9101574.1357 

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San Antonio, TX. 792012797 

5122254191 

An Equal Opportunity/ 

Afflrmatlvs Action Employer 

The Attorne,y General of Texas 

Se~ptember 11. 1986 

us. Peggy Rosson Opinion NO.JM+Q 

Chairman 

Public Utility Commkision Re: Authority of the Executive 

of Texas Direc,tor .of the Public Utility 

7800 Shoal Creek Blvd., Suite 400N Comnlission 

Austin, Texas 7875:' 

Dear Ms. Rosson: 

You ask severa:. questions about the role of the executive head of 

the Public Utility Commission [hereinafter "PCC"]. Specifically, you 

ask: 

1. Wall it the intent of the legislature in 

creating the position of executive director that 

the executive director be the executive head of 

the Public Utility Commission? 

2. If so, what is the scope of the authority, 

responsib::l.ity and duties of the executive head of 

the Public Utility Commission? In particular, 

what authority do the commissioners have to 

delegate to the executive director authority for 

carrying out administrative functions necessary 

for the duty to day operation of the commission? 

Section 8 of the Public Utilities Regulatory Act (PUILQ, article 

1446c, V.T.C.S.. contains provisions regarding employees of the PUC: 

Sec. 8. (a) The commission shall employ such 

officers, administrative law judges, hearing examiners, investigators, lawyers, engineers, economists, 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 commission; 

(4) preparation of proposed changes in the 

rules of the comm:tssion; 

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

P 

P 

(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.e him to perform his duties. 

(d) The commission shall employ administrative 

law judges to preside at hearings of major importance before the cosmission. An administrative law 

judge must be a licensed attorney with not less 

than five years' general experience or three 

years' experience Ln utility regulatory law. The 

administrative la18 judge shall perform his duties 

independently frolr the 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 opportunity 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 intraagency 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 commission enployeee-must be based on the system 

established under This section. 

(f) The execulzJve director or his/her designee 

shall prepare ar.d maintain a written plan to 

assure implemenGi:ion of a program of equal 

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, selection, 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 achievement. 

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. (EnLphasis added). 

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!?srable to a position such as director of 

the Texas Department of Corrections. See V.T.C.S. art. 6166j 

(provides that TDC shall deLlagate to 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 :specific duties 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 executive 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 executive 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 administration 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 involvoil in managing the day-to-day activities of 

the PUC. Although acts invo:.ving official 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:.nisterial acts). Therefore, although PURA 

does not require that the ex,ecutive director be the chief administrative 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 thei PURA 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 executive director tha: the legislature has not placed 

elsewhere. 

JACK RIGETOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman. Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

Very 

I 

truly yoursj 1 

/In +- 

LJ JIM MATTOX 

Attorney General of Texas 

p. 2499