# In Re Oncor Electric Delivery Co. LLC; Oncor Electric Delivery Co. Ntu LLC; Aep Texas Inc.; American Electric Power Co.; Centerpoint Energy Houston Electric, LLC; And Centerpoint Energy, Inc.

> Texas Supreme Court · June 27, 2025

URL: https://www.frixlaw.com/law-library/cases/11085116

## Case

- **Court:** Texas Supreme Court
- **Decided:** June 27, 2025
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Lehrmann
- **Judges:** Lehrmann
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11085116

## How later opinions describe it (automated extraction)

- recognizing that a nuisance could involve, among other things, “water, stones, . . . smoke, dust, odors, gases”
- explaining that “momentary thoughtlessness, inadvertence, or error of judgment” does not rise to the level of conscious indifference (quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 915 (Tex. 1981))

## Opinion text

Supreme Court of Texas
══════════
No. 24-0424
══════════

In re Oncor Electric Delivery Co. LLC; Oncor Electric
Delivery Co. NTU LLC; AEP Texas Inc.; American Electric
Power Co.; CenterPoint Energy Houston Electric, LLC; and
CenterPoint Energy, Inc.,
Relators

═══════════════════════════════════════
On Petition for Writ of Mandamus
═══════════════════════════════════════

Argued February 19, 2025

JUSTICE LEHRMANN delivered the opinion of the Court.

Justice Bland and Justice Young did not participate in the
decision.

After Winter Storm Uri in 2021, thousands of Texans sued
participants in the Texas electricity market. This mandamus petition
concerns the claims against transmission and distribution utilities (the
“Utilities”). The parties dispute whether the Utilities can be liable for
gross negligence and intentional nuisance based on their alleged
conduct in connection with the storm and, if so, whether the plaintiffs’
pleadings allege sufficient facts to survive a Rule 91a motion to dismiss.
We hold that the plaintiffs do not, and as a matter of law cannot, allege
that the Utilities “created” or “maintained” a nuisance. So, the
plaintiffs’ intentional-nuisance claims must be dismissed with prejudice.
Next, we hold that the pleadings do not sufficiently allege gross
negligence. However, we conclude that the plaintiffs should have an
opportunity to replead the gross-negligence claims in light of the
guidance we provide in this opinion. Accordingly, we conditionally grant
mandamus relief.

I. Background 1

In February 2021, Winter Storm Uri brought extreme winter
weather to Texas, causing record-setting electricity demand and severe
power shortages. As a result, the Electric Reliability Council of Texas
(ERCOT) declared a “Level 3 Emergency”—its highest state of
emergency. At the emergency’s outset, ERCOT ordered the Utilities to
“load shed,” meaning cut power to some customers. The Utilities did so,
leading to outages throughout the state. The Level 3 Emergency stayed
in effect for four days.
Transmission and distribution utilities deliver electricity that
other market participants generate and sell. Each Utility is bound by
the terms of its “tariff.” 2 See 16 TEX. ADMIN. CODE § 25.214(b). In the

1 The facts here are taken from the plaintiffs’ pleadings. See TEX. R.
CIV. P. 91a.6 (“[T]he court . . . must decide the motion based solely on the
pleading of the cause of action, together with any pleading exhibits permitted
by Rule 59.”).
2 “Tariff” has a specialized meaning in the energy context, distinct from

the more common meaning of “[a] schedule or system of duties imposed by a
government on imported or exported goods.” Tariff, BLACK’S LAW DICTIONARY
(12th ed. 2024).

2
energy context, tariffs outline various aspects of a Utility’s business,
including certain obligations, prohibitions, and limitations on liability.
See id. § 25.5(129). Each tariff contains provisions specific to the Utility
to which it applies. City of Richardson v. Oncor Elec. Delivery Co.,
539 S.W.3d 252, 257 (Tex. 2018). But all tariffs on transmission and
distribution utilities also contain certain pro forma provisions
prescribed by the Public Utility Commission’s (PUC) regulations. Id. at
257–58; 16 TEX. ADMIN. CODE § 25.214. 3
The plaintiffs allege that the Utilities’ conduct during Winter
Storm Uri worsened the crisis and violated common-law duties, as
informed by the Utilities’ tariffs. In particular, they allege that the
Utilities promised to roll blackouts but failed to do so, causing some
homes to be without heat for days. Several residents died as a result.
The plaintiffs further allege that the Utilities cut power to generators
and natural-gas production facilities, decreasing electricity supply and
exacerbating the power shortage; the Utilities were allegedly warned of
that very risk nearly a decade earlier. Further, the Utilities allegedly
lacked a plan for load shedding during a severe storm like Uri, despite
knowing one was coming. To that end, the plaintiffs allege that the
Utilities failed to adequately maintain a list of critical customers to
whom they should not cut power and that they kept too much power on
“Under Frequency Load Shed” circuits, which can only be shut off as a

3 The pro forma tariff is located at 16 TEX. ADMIN. CODE § 25.214(d).

For simplicity, we cite that subsection of the Administrative Code as “Pro
Forma Tariff.”

3
last resort. Finally, the Utilities allegedly misled their customers by
downplaying the situation.
After the storm, thousands of plaintiffs brought hundreds of suits
against participants in the Texas electricity market, including ERCOT,
natural-gas companies, power generators, retail electric providers, and
transmission and distribution utilities. 4 The plaintiffs asserted claims
of negligence, gross negligence, tortious interference with contract, civil
conspiracy, negligent nuisance, strict-liability nuisance, and intentional
nuisance. The cases were transferred to a multidistrict litigation
pretrial court, which designated several bellwether cases for initial
motions.
ERCOT filed a plea to the jurisdiction based on governmental
immunity, and all the defendants moved for dismissal under Rule 91a,
which authorizes a motion “to dismiss a cause of action on the grounds
that it has no basis in law or fact.” TEX. R. CIV. P. 91a.1. The trial court
dismissed the claims against the retail electric providers, the gas
producers, and ERCOT. The claims against those defendants were then
severed and are not before us. As to the power generators and the
transmission and distribution utilities, the trial court dismissed the
tortious-interference and civil-conspiracy claims. That left only the
claims against the Utilities and the power generators for negligence,
gross negligence, and nuisance.

4 The defendant transmission and distribution utilities—which are the

relators in this mandamus proceeding—are Oncor Electric Delivery Co., LLC;
Oncor Electric Delivery Co. NTU LLC; AEP Texas Inc.; American Electric
Power Co., Inc.; CenterPoint Energy Houston Electric, LLC; and CenterPoint
Energy, Inc.

4
The Utilities filed a petition for writ of mandamus in the court of
appeals, seeking dismissal of the remaining claims. The court of appeals
conditionally granted partial relief and ordered dismissal of the
negligence, negligent-nuisance, and strict-liability nuisance claims but
allowed the gross-negligence and intentional-nuisance claims to
proceed. 694 S.W.3d 789, 803 (Tex. App.—Houston [14th Dist.] 2024,
orig. proceeding). The Utilities now seek mandamus relief in this Court,
arguing that we should order the trial court to dismiss the two
remaining claims against them. 5

II. Discussion

Mandamus relief is proper when the respondent “clearly abused
its discretion” and the relator has “no adequate remedy by appeal.” In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
“When a trial court fails ‘to analyze or apply the law correctly,’ it has
clearly abused its discretion.” In re Sherwin-Williams Co., 668 S.W.3d
368, 370 (Tex. 2023) (quoting Walker v. Packer, 827 S.W.2d 833, 840
(Tex. 1992)). And a party has no adequate remedy by appeal “when the
trial court abuses its discretion in denying a Rule 91a motion to
dismiss,” In re Farmers Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266
(Tex. 2021), particularly where, as here, mandamus relief would

5 The power generators filed a separate mandamus petition, which was

assigned to a different court of appeals. That court conditionally granted relief
requiring dismissal of all claims against the power generators. See In re
Luminant Generation Co., 711 S.W.3d 13, 18 (Tex. App.—Houston [1st Dist.]
2023, orig. proceeding [mand. pending]). The plaintiffs filed mandamus
petitions in this Court challenging that order. Those petitions remain pending
and are not before us here.

5
determine the fate of hundreds of suits by thousands of plaintiffs, see In
re E.I. du Pont de Nemours & Co., 92 S.W.3d 517, 524 (Tex. 2002); CSR
Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996). Accordingly, we focus on
the abuse-of-discretion prong in evaluating the Utilities’ request for
mandamus relief.
The Utilities argue that the trial court should have dismissed the
intentional-nuisance and gross-negligence claims for several reasons.
First, as to gross negligence, the Utilities assert they had no applicable
common-law duty and, even if they did, the plaintiffs failed to allege
sufficient facts to survive a Rule 91a motion. TEX. R. CIV. P. 91a.1 (“A
cause of action has no basis in law if the allegations, taken as true,
together with inferences reasonably drawn from them do not entitle the
claimant to the relief sought.”). Next, the Utilities argue that they did
not create or maintain a condition that could constitute a nuisance,
foreclosing the plaintiffs’ intentional-nuisance claim. Finally, they
contend that the pro forma tariff’s force majeure provision bars both
claims. As discussed below, we hold that the pleadings are insufficient
as to both the intentional-nuisance and gross-negligence claims.
Accordingly, we do not address the duty and force majeure issues.

A. Intentional Nuisance

We begin with intentional nuisance. A “defendant may be held
liable . . . based on proof that he intentionally created or maintained” a
nuisance. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580,
604–05 (Tex. 2016). A “nuisance” is “a condition that substantially
interferes with the use and enjoyment of land by causing unreasonable

6
discomfort or annoyance to persons of ordinary sensibilities attempting
to use and enjoy it.” Id. at 593.
This Court has recognized intentional-nuisance liability where
the defendant is a source of a nuisance, not where it simply failed to
protect against one. See, e.g., id. at 592 n.5 (listing examples of
nuisance, including “operating,” “maintaining,” or “construction . . . of”
certain facilities (emphases added)); id. at 605–06 (providing, as an
example of intentional nuisance, opening a valve and thereby releasing
contaminants); cf. Keenan v. Robin, 709 S.W.3d 595, 603 (Tex. 2024)
(“[A]ny permanent structure or purpresture which materially
encroaches upon a public street and impedes travel is a nuisance
per se . . . .” (alteration in original) (quoting Joseph v. City of Austin, 101
S.W.3d 381, 385 (Tex. App.—Austin 1936, writ ref’d))). Of course, that
is not to say that something cannot be an intentional nuisance just
because natural forces play a role. See, e.g., Crosstex, 505 S.W.3d at 592
(recognizing that a nuisance could involve, among other things, “water,
stones, . . . smoke, dust, odors, gases”). But for intentional-nuisance
liability to attach, the defendant must in some way have been a source
of the nuisance.
The alleged “nuisance” here is prolonged freezing temperatures
during Winter Storm Uri. The allegations do not suggest that the
Utilities created or exacerbated the cold temperatures or affirmatively
maintained them. Rather, the plaintiffs complain that the Utilities
failed to adequately respond to and mitigate the harm caused by those
temperatures. That is not a basis for an intentional-nuisance claim.

7
Accordingly, the intentional-nuisance claims against the Utilities must
be dismissed.

B. Gross Negligence

We next address the gross-negligence claims. The Utilities argue
those claims fail both because (1) the Utilities have no common-law duty
under the circumstances alleged and (2) the allegations regarding the
Utilities’ conduct, even if true, do not rise to the level of gross negligence.
As noted above, we focus on the second point.
Rule 91a authorizes dismissal of a cause of action “if the
allegations, taken as true, together with inferences reasonably drawn
from them do not entitle the claimant to the relief sought” or if “no
reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1.
In deciding a Rule 91a motion, we construe the allegations liberally in
the plaintiffs’ favor, In re Facebook, Inc., 625 S.W.3d 80, 98 (Tex. 2021),
and consider only “the pleading of the cause of action” and certain
pleading exhibits, TEX. R. CIV. P. 91a.6. To survive a Rule 91a motion,
a plaintiff’s pleadings must include the “essential factual allegations
supporting [the] claims,” and those allegations “must be sufficient to
support a judgment if ultimately proven.” In re First Rsrv. Mgmt., L.P.,
671 S.W.3d 653, 662 (Tex. 2023).
“Gross negligence has both an objective and a subjective
component.” Medina v. Zuniga, 593 S.W.3d 238, 247 (Tex. 2019)
(quoting Reeder v. Wood Cnty. Energy, LLC, 395 S.W.3d 789, 796 (Tex.
2012)). “First, ‘viewed objectively from the actor’s standpoint, the act or
omission complained of must involve an extreme degree of risk,
considering the probability and magnitude of the potential harm to

8
others.’” Id. (quoting Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
785 (Tex. 2001)). “Second, ‘the actor must have actual, subjective
awareness of the risk involved, but nevertheless proceed in conscious
indifference to the rights, safety, or welfare of others.’” Id. (quoting Lee
Lewis Constr., 70 S.W.3d at 785); see also Boerjan v. Rodriguez,
436 S.W.3d 307, 311 (Tex. 2014) (requiring that “the defendant knew
about the peril, but its acts or omissions demonstrated that it did not
care” (quoting Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.
1998))). “The defendant need not have anticipated the precise manner
of harm or to whom the injury would befall to have had awareness of the
extreme risk.” Medina, 593 S.W.3d at 248.
The core allegations here, construed liberally in the plaintiffs’
favor, are as follows:
• The Utilities decided where to cut power and how to rotate
outages. They promised to rotate outages but did not do so,
leaving some homes without power for days.
• The Utilities had no rational plan for load shedding during
this kind of event. Rather, they “proceed[ed] ad hoc.” In some
cases, critical infrastructure lost power. And there were large
discrepancies in service.
• The Utilities cut power to consumers involved in electricity
production, including in the Permian Basin, despite having
been warned a decade earlier to avoid doing so. This
contributed significantly to the outages.
• The Utilities have sole discretion to maintain lists of critical
infrastructure, to prepare and maintain forms designating
critical customers, and to provide those forms to customers.
The Utilities could have maintained the lists adequately, as
made evident by at least one Utility’s nearly five-fold increase
in facilities on its “critical” list within just a few days after the
storm began. “[M]ore than half of the state’s natural gas

9
supplies were knocked off-line by power losses, causing as
much as 20% of the total power outages” during Winter Storm
Uri.
• The Utilities had too much load connected to Under Frequency
Load Shed circuits, which they could not turn off except as a
last resort.
• The Utilities falsely promised rolling blackouts and
misleadingly downplayed the situation.
The plaintiffs further allege that the Utilities knew severe cold
weather was coming for several days before the storm hit. And an
earlier ERCOT report anticipated possible “extreme” weather conditions
during the 2020–2021 winter season. Winter peak demand in January
2018 was 65,915 megawatts, and ERCOT forecast that the number
would grow by between 1,000 and 3,000 megawatts per year. Peak
demand during the storm was 69,692 megawatts. Based on those
allegations, construed liberally, the peak demand during Winter Storm
Uri was foreseeable.
These allegations are serious. But, even assuming they are true,
standing alone they do not support an inference that the Utilities’
conduct amounted to gross negligence. First, to the extent the plaintiffs
argue that the Utilities were grossly negligent in their initial response
to ERCOT’s load-shed orders, the pleadings do not support that
contention. ERCOT announced a “Level 3” Energy Emergency and
ordered substantial blackouts “to prevent grid collapse.”
Unsurprisingly, during a Level 3 Emergency, the Utilities are required
to follow ERCOT’s load-shed orders “without delay.” ERCOT Nodal
Operating Guide § 4.5.3(7); see TEX. UTIL. CODE § 39.151(j) (requiring
transmission and distribution utilities to follow ERCOT guidelines).

10
The Utilities therefore had to implement widespread blackouts very
quickly. To the extent the plaintiffs complain about the Utilities’ actions
in those moments, they have failed to allege facts that could amount to
conscious indifference. See Wal-Mart Stores, Inc. v. Alexander, 868
S.W.2d 322, 326 (Tex. 1993) (explaining that “momentary
thoughtlessness, inadvertence, or error of judgment” does not rise to the
level of conscious indifference (quoting Burk Royalty Co. v. Walls, 616
S.W.2d 911, 915 (Tex. 1981))). The plaintiffs have nowhere alleged facts
supporting an inference that the Utilities were not doing the best they
could in those time-sensitive circumstances.
But that does not necessarily foreclose the conclusion that the
Utilities’ conduct rose to the level of grossly negligent at other times
before or in the aftermath of the initial load-shed orders. The plaintiffs
argue that the Utilities’ failure to adequately plan for Winter Storm Uri
and their acts and omissions in the hours and days following the initial
response also constitute gross negligence. Even in normal times,
“[c]ontinuous service by a public utility is essential to the life, health,
and safety of the public.” TEX. UTIL. CODE § 186.002(a), (c)(1). And
ERCOT, in a “system[-]wide resource adequacy plan” available to the
Utilities, anticipated “extreme” weather during the 2020–2021 winter
season, producing operating reserve margins low enough to require
“system-wide blackouts.” See Ellender, 968 S.W.2d at 922 (relying on
evidence that an extreme risk was “common knowledge” in the
defendant’s industry to establish objective component of gross
negligence).

11
However, at this point, the plaintiffs have not sufficiently alleged
that the Utilities “proceed[ed] in conscious indifference to the rights,
safety, or welfare of others,” Medina, 593 S.W.3d at 247 (quoting Lee
Lewis Constr., 70 S.W.3d at 785), or that they “knew about the peril, but
[their] acts or omissions demonstrated that [they] did not care,”
Boerjan, 436 S.W.3d at 311 (quoting Ellender, 968 S.W.2d at 921). In
particular, given that the Utilities were legally obligated to
operate—both before and after Winter Storm Uri—in compliance with
ERCOT guidelines and other applicable law, an allegation of gross
negligence must account for the legal constraints governing the Utilities
at the time. In other words, at a minimum, the plaintiffs must allege
that the Utilities’ alleged grossly negligent acts and omissions were a
choice made with conscious indifference to the rights, safety, or welfare
of others and were not taken to comply with a legal obligation or a
reasonable belief about a legal obligation.
The Utilities Code makes very clear that transmission and
distribution utilities are obligated to comply with ERCOT guidelines,
which have the force and effect of law:
A . . . transmission and distribution utility . . . shall
observe all scheduling, operating, planning, reliability, and
settlement policies, rules, guidelines, and procedures
established by the independent system operator in
ERCOT. Failure to comply with this subsection may result
in the revocation, suspension, or amendment of a
certificate . . . or in the imposition of an administrative
penalty . . . .
TEX. UTIL. CODE § 39.151(j); see also Pro Forma Tariff ch. 1 (defining
“Applicable Legal Authorities” to include a “guide or guideline of
[ERCOT]”); id. § 3.3 (“The provision of Delivery Service . . . is subject

12
to . . . Applicable Legal Authorities.”). Accordingly, we may and should
consider those guidelines at the Rule 91a phase. Bethel v. Quilling,
Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex.
2020) (“Rule 91a limits a court’s factual inquiry to the plaintiff’s
pleadings but does not so limit the court’s legal inquiry.”).
When a defendant reasonably believed its alleged misconduct was
necessary to comply with applicable guidelines (even when they do not
have the force and effect of law), a plaintiff alleging conscious
indifference must generally demonstrate that the defendant “should
have disregarded the [g]uidelines . . . and that . . . failure to do so
showed that [the defendant] was consciously indifferent.” Marsillo v.
Dunnick, 683 S.W.3d 387, 395 (Tex. 2024). In effect, if a defendant’s
complained-of acts or omissions were plausibly required by applicable
guidelines, and the defendant followed those guidelines, a presumption
arises that the defendant was not consciously indifferent. See id. Here,
the plaintiffs have made no effort to allege that the Utilities could have
acted differently while still complying with the ERCOT guidelines. Of
course, at the pleadings stage, the plaintiffs do not have to individually
address every potentially applicable legal requirement or guideline. But
neither can they adequately allege conscious indifference while ignoring
the highly relevant and restrictive guidelines that limited the Utilities’
options in this extreme emergency.
The plaintiffs acknowledge that Winter Storm Uri was a “crisis.”
The Utilities acted—at least in part—to comply with ERCOT orders, to
preserve the grid, and to prevent even more widespread potential
outages. The Utilities’ options were certainly limited, perhaps

13
considerably so, by the guidelines they were required to follow. If the
plaintiffs’ theory of the case is that the Utilities could have satisfied
their legal obligations and simultaneously taken concrete steps to
mitigate the deaths and injuries that ensued, they must allege facts to
support such an inference. In short, they need to allege that the Utilities
could have reduced the deaths and injuries that resulted from the storm
despite applicable legal requirements but nevertheless proceeded as
they did with conscious indifference to the rights, safety, or welfare of
others.
We emphasize that our discussion is limited to gross-negligence
claims and stems from the impact of a defendant’s compliance with
applicable laws, regulations, or guidelines on the plaintiff’s ability to
establish conscious indifference. See Marsillo, 683 S.W.3d at 395. And
even in this context, we do not suggest that plaintiffs must identify and
individually plead around every requirement or guideline that might
somehow constrain a defendant’s conduct. But the plaintiffs here
needed to allege that the Utilities, in implementing ERCOT’s load-shed
orders, could have meaningfully acted differently and thereby lessened
the injuries that resulted from Winter Storm Uri despite the applicable
legal restrictions. In other words, they must at least allege that the
Utilities could have reduced the injuries the storm caused while
complying with applicable legal requirements and guidelines and yet
chose not to do so, demonstrating conscious indifference to the resulting
injuries. See First Rsrv., 671 S.W.3d at 662 (holding the pleadings’
factual allegations “must be sufficient to support a judgment if
ultimately proven”).

14
Because the pleadings are insufficient in their current form, the
trial court’s order must be vacated insofar as it denied the Utilities’
motion to dismiss the gross-negligence claims against them. However,
given our clarification of the law regarding conscious indifference, and
because “[m]andamus is discretionary and ‘controlled by equitable
principles,’” id. at 663 (quoting Rivercenter Assocs. v. Rivera, 858 S.W.2d
366, 367 (Tex. 1993)), we conclude the plaintiffs should be given an
opportunity to replead the gross-negligence claims against the Utilities.
See, e.g., Dohlen v. City of San Antonio, 643 S.W.3d 387, 398–99 (Tex.
2022) (reversing a court of appeals judgment that dismissed the case for
lack of jurisdiction where the pleadings did not sufficiently allege waiver
of immunity, but allowing plaintiffs an opportunity to replead).

III. Conclusion

We hold that because the plaintiffs’ pleadings failed to adequately
allege intentional nuisance and gross negligence, the trial court erred in
denying the Utilities’ Rule 91a motion seeking dismissal of those claims.
Accordingly, we conditionally grant mandamus relief and order the trial
court to vacate its order denying the motion. We further order the trial
court to dismiss the intentional-nuisance claims with prejudice and to
provide the plaintiffs an opportunity to replead their gross-negligence
claims in an amended petition. A writ will issue only if the trial court
fails to comply.

Debra H. Lehrmann
Justice

OPINION DELIVERED: June 27, 2025

15

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11085116. Public record. Not legal advice.