CPS Energy, Time Warner Cable Texas LLC, and Southwestern Bell Telephone Company D/B/A AT&T// Public Utility Commission of Texas v. Public Utility Commission of Texas// Cross-Appellee, CPS Energy, Time Warner Cable Texas LLC and Southwestern Bell Telephone Company D/B/A AT&T

ACCEPTED

03-14-00340-CV

4961132

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 5:45:55 PM

JEFFREY D. KYLE

CLERK

FILED IN

3rd COURT OF APPEALS

AUSTIN, TEXAS

4/20/2015 5:45:55 PM

M EG AN N EA L (512) 475-4009

JEFFREY D. KYLE

A SSISTAN T A TTO RN EY G EN E RA L megan.neal@texasattorneygeneral.gov

Clerk

April 20, 2015

Honorable Jeffrey D. Kyle, Clerk Via Electronic Filing

Court of Appeals, Third District of Texas

P.O. Box 12547

Austin, TX 78711-2547

Re: No. 03-14-00340-CV,

Appellants, CPS Energy, Time Warner Cable Texas LLC, and Southwestern

Bell Telephone Company d/b/a AT&T// Cross-Appellant Public Utility

Commission of Texas,

v. Appellee, Public Utility Commission of Texas// Cross Appellee, CPS

Energy, Time Warner Cable Texas LLC, and Southwestern Bell Telephone

Company d/b/a AT&T.

Dear Mr. Kyle:

In preparation for oral argument in this case, we determined the Court does not

have jurisdiction to decide one of the issues. CPS Energy does not have standing to

question the Commission’s declarations regarding amendments to the applicable federal

regulation. (CPS Energy’s Appellant’s Point of Error No. 2; Findings of Fact 84-87;

Conclusion of Law 27.) Those amendments became effective on June 8, 2011—several

months after the time period for which the Commission determined the maximum

allowable pole-attachment rate. That period ended with CPS Energy’s test year 2009,

billing year 2010. Thus, the Court cannot review this issue.

This Court and the Texas Supreme Court have held that statements about the

future are advisory and a party does not have standing to complain about them. The two

attached cases demonstrate these holdings. Please provide copies to the Court.

PO S T OF F I C E BO X 12548, AU S T I N , TE X A S 78711-2548 TEL: (512)463-2100 W W W .TEX A SAT T O R N E YGEN ER A L.G O V

A n Equa l Em pl o ym ent O pp or t unit y Em pl o ye r ·

Hon. Jeffrey Kyle Page 2

April 20, 2015

Thank you for your assistance.

/s/ Megan Neal

Megan Neal

Assistant Attorney General

State Bar No. 24043793

(512) 475-4009 Tel.

(512) 457-4639 Fax

cc: Counsel of record w/ attachments

Stephen Journeay - PUC

Certificate of Service

I certify that a true and correct copy of this document was electronically filed with

the Court of Appeals for the Third District of Texas. All counsel were served with a true

and correct copy of this document electronically or by email on the 20th day of April,

2015, to the following:

Alfred R. Herrera Michael T. Sullivan

Felipe Alonso III MAYER BROWN LLP

HERRERA & BOYLE, PLLC 71 S. Wacker Drive

816 Congress Avenue, Suite 1250 Chicago, IL 60606

Austin, TX 78701 (312) 782-0600

(512) 474-1492 (312) 706-8689 (fax)

(512) 474-2507 (fax) msullivan@mayerbrown.com

aherrera@aherreraboylelaw.com

falonso@aherreraboylelaw.com Joseph E. Cosgrove, Jr.

Katherine C. Swaller

Curt D. Brockman Thomas Ballo

CPS Energy AT&T LEGAL DEPARTMENT

145 Navarro 816 Congress Avenue, Suite 1100

P. O. Box 1771 Austin, TX 78701

San Antonio, TX 78296 (512) 457-2304

(210) 353-5689 (512) 870-3420 (fax)

(210) 353-6832 (fax) joseph.cosgrove.jr@att.com

cdbrockmann@cpsenergy.com katherine.swaller@att.com

Attorneys for CPS Energy thomas.ballo@att.com

Hon. Jeffrey Kyle Page 3

April 20, 2015

Valerie P. Kirk Paul A. Drummond

Melissa Lorber Natalie L. Hall

ENOCH KEVER PLLC AT&T LEGAL DEPARTMENT

600 Congress Avenue, Suite 2800 1010 N. St. Mary’s, Rm 14Q

Austin, TX 78701 San Antonio, TX 78215

(512) 615-1200 (210) 351-4830

(512) 615-1198 (fax) (210) 886-2127 (fax)

vkirk@enochkever.com paul.drummond@att.com

mlorber@enochkever.com natalie.hall@att.com

Attorneys for Time Warner Attorneys for AT&T

John Davidson Thomas

Paul A. Werner

James Aaron George

SHEPPARD MULLIN RICHTER &

HAMPTON LLP

2099 Pennsylvania Ave., N.W.

Suite 100

Washington, D.C. 20006

(202) 747-1900

(202) 747-1901 (fax)

dthomas@sheppardmullin.com

pwerner@sheppardmullin.com

ageorge@sheppardmullin.com

Attorneys for Time Warner

/s/ Megan Neal

Megan Neal

Page 1

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

Judge Presiding.

Briefs and Other Related Documents From the District Court of Travis County,

126th Judicial District, No.

Judges and Attorneys D–1–GN–10–003982, Stephen Yelenosky,

Judge Presiding.

Only the Westlaw citation is currently

Douglas Fraser, Assistant Attorney Gener-

available.

al, Environmental Protection Division,

SEE TX R RAP RULE 47.2 FOR DESIG- Kellie E. Billings, Assistant Attorney Gen-

NATION AND SIGNING OF OPINIONS. eral, Environmental Protection & Admin.

Law Division, Austin, TX, for Appellant.

MEMORANDUM OPINION

Dane McKaughan, Greenberg Traurig,

Court of Appeals of Texas, LLP, Austin, TX, for Appellee.

Austin.

The RAILROAD COMMISSION OF

Before Justices PURYEAR, GOODWIN,

TEXAS, Appellant

and FIELD.

v.

CENTERPOINT ENERGY RESOURCES

CORP. d/b/a CenterPoint Energy Entex MEMORANDUM OPINION

and CenterPoint Energy Texas Gas, Ap- MELISSA GOODWIN, Justice.

pellee. *1 The Texas Railroad Commission

The Railroad Commission of Texas, Ap- (the Commission) appeals the trial court's

pellant reversal in part of its final orders in three

v. annual review proceedings under cost-

Texas Gas Service Company, a Division of of-service adjustment (COSA) tariffs in-

ONEOK, Inc., Appellee. volving essentially identical issues. Center-

The Railroad Commission of Texas, Ap- Point Energy Resources Corp. d/b/a

pellant CenterPoint Energy Entex and CenterPoint

v. Energy Texas Gas (CenterPoint) and Texas

CenterPoint Energy Resources Corp. d/b/a Gas Service Company, a Division of

CenterPoint Energy Entex and CenterPoint ONEOK, Inc. (Texas Gas) (the Utilities)

Energy Texas Gas, Appellee. sued for judicial review of final orders is-

sued by the Commission denying the Utilit-

Nos. 03–13–00533–CV, ies' recovery of certain expenses for meals,

03–13–00534–CV, 03–13–00535–CV. lodging, and other items and ordering cer-

Aug. 14, 2014. tain guidelines for recovery of similar ex-

penses in future COSA reviews. Because

From the District Court of Travis County,

we conclude that the Utilities' claims are

98th Judicial District, No.

not ripe, we reverse the trial court's judg-

D–1–GN–10–003981, Stephen Yelenosky,

ment and dismiss the Utilities' claims.

Judge Presiding.

From the District Court of Travis County, FACTUAL AND PROCEDURAL

200th Judicial District, No. BACKGROUND

D–1–GN–10–003983, Stephen Yelenosky, In April 2010, the Utilities applied for

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

cost-of-service adjustments to their rates the Utilities could not produce itemized re-

pursuant to annual reviews authorized un- ceipts. FN1 In its final orders, the Commis-

der their respective COSA tariffs for cer- sion made certain findings of fact and con-

tain service areas. Rates for the affected clusions of law concerning the disallowed

customers were initially determined in con- expenses and included two “ordering para-

tested case hearings that resulted in the ad- graphs” requiring the Utilities to meet cer-

option of tariffs with COSA clauses. A tain evidentiary criteria for recovery of

COSA clause is a formula included in a similar expenses in the future.FN2 The two

utility's tariff that allows adjustments to ordering paragraphs provided:

customer charges without the necessity of a

full-blown “Statement of Intent” rate case. FN1. The removal of the disputed

See Texas Coast Utils. Coal. v. Railroad expenses did not result in any

Comm'n, 423 S.W.3d 355, 357, 374 change to the Utilities' proposed ad-

(Tex.2014) (upholding authority of Com- justments, and the record reflects

mission to adopt gas utility rate schedule that the Utilities withdrew their re-

providing for automatic annual adjustments quests for the questioned expenses.

based on increases or decreases in utility's

FN2. In each case, calculation er-

cost of service, i.e., COSA clause). The

rors not relevant to this appeal were

terms of a COSA clause vary depending on

corrected and a nunc pro tunc order

what is approved as part of the tariff in the

issued.

rate case. The tariffs in these cases provide

that the annual rate adjustment is to be de- *2 IT IS FURTHER ORDERED that

termined by a calculation based on calen- [the Utilities] shall not include any em-

dar year operating expenses, return invest- ployee or contractor expenses from em-

ment, and certain taxes. If the resulting ployee or contractor expense reports re-

change is positive, the amount charged imbursement in future COSA filings that

goes up; if it is negative, the amount cannot be supported by a detailed item-

charged goes down. The adjustment is ized receipt which shows the specific

capped at 5% of the customer charge that amounts and line item charges.

was in effect at the end of the preceding

calendar year in CenterPoint's tariffs and at IT IS FURTHER ORDERED that [the

the percentage change in the Consumer Utilities] shall identify and justify each

Price Index for All Urban Consumers in meal expense that exceeds $25.00 per

Texas Gas's tariff. These were the first person and any lodging expense over

COSA filings made by the Utilities under $150.00 per person per night that [the

their respective tariffs. Utilities] propose[ ] to include in future

COSAs.

A COSA tariff annual review is a

streamlined procedure that does not include The Utilities filed motions for rehear-

a hearing; instead, the adjustment is de- ing complaining that the findings of fact,

termined following staff review of the conclusions of law, and ordering para-

evidence filed by the utility. In each of the graphs concerning the disallowed expenses

present cases, the Commission questioned were statements of new policy, not backed

and ultimately disallowed certain expenses by any rule or guideline, and were there-

for meals, travel, and other items for which fore made through unlawful procedure, ar-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

bitrary and capricious, and not supported future,” not an advisory opinion.

by substantial evidence. The Commission

denied the motions for rehearing, and the FN3. The Commission also con-

Utilities filed suits for judicial review as- tends that the Utilities lack standing

serting the same claims. See Tex. Util.Code because in their motions for rehear-

§ 105.001(a) (any party to proceeding be- ing, they did not challenge the

fore Commission entitled to judicial review Commission's final decisions on

under substantial evidence rule). The Com- rate adjustments and instead at-

mission filed motions to dismiss based, in tacked only the underlying findings

part, on its contention that the Utilities of fact and conclusions of law. This

were requesting advisory opinions because Court has held that to have standing

their claims are not ripe. The trial court to seek judicial review, one must be

denied the Commission's motions to dis- aggrieved by the final order and not

miss and reversed the final orders, finding merely by an underlying finding or

that the Commission acted arbitrarily and conclusion, see GTE Sw. Inc. v.

capriciously by imposing a new policy in Public Util. Comm'n of Tex., 37

the orders and that the policy was made S.W.3d 546, 548 (Tex.App.-Austin

through unlawful procedure and was not 2001, no pet.) (citing Champlin Ex-

supported by substantial evidence. These ploration, Inc. v. Railroad Comm'n,

appeals followed. 627 S.W.2d 250, 252

(Tex.App.-Austin 1982, writ ref'd

DISCUSSION n.r.e.)). However, the Utilities' mo-

In its first issue, the Commission ar- tions for rehearing expressly chal-

gues that the Utilities' claims are not ripe lenged the ordering paragraphs as

and they therefore seek an impermissible well as the findings and conclu-

advisory opinion.FN3 The Commission sions. We overrule the Commis-

contends that the Utilities request a prede- sion's first issue as to this argument.

termination of a hypothetical matter that

could arise in the future, which is not a “The courts of this state are not em-

matter fit for judicial consideration. The powered to give advisory opinions[, and]

Utilities argue that the orders “expressly [t]his prohibition extends to cases that are

appl [y] ... to future COSA proceedings,” not yet ripe.” Patterson v. Planned Parent-

“mandate the manner in which all future hood of Hous. & Se. Tex., Inc., 971 S.W.2d

rate adjustments filed pursuant to the ap- 439, 443 (Tex.1998) (citations omitted).

plicable COSA tariff will be resolved,” and The ripeness doctrine “serves to avoid pre-

“fundamentally change the way in which mature adjudication” and “focuses on

COSA adjustments are calculated in future whether the case involves ‘uncertain or

COSA proceedings.” They further contend contingent future events that may not occur

that the orders place “obligations and bur- as anticipated, or indeed may not occur at

dens on [them] now, and that failure to all.’ “ Perry v. Del Rio, 66 S.W.3d 239,

abide by these new obligations and burdens 250 (Tex.2001) (citations omitted). “A case

could bar recovery in a future COSA pro- is not ripe when its resolution depends on

ceeding.” Thus, the Utilities contend, they contingent or hypothetical facts, or upon

seek real relief and an opinion that will af- events that have not yet come to pass.”

fect “all COSA cases [they] will file in the Patterson, 971 S.W.2d at 443. “Ripeness is

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

both a question of timing, that is, when one constitute a hardship on the Utilities. See

may sue, a question of discretion, or Perry, 66 S.W.3d at 250; Atmos Energy,

whether the court should hear the suit, and 127 S.W.3d at 858. Whether there may be

not whether it can hear the suit.” Atmos an actual controversy between the Utilities

Energy Corp. v. Abbott, 127 S.W.3d 852, and the Commission is too uncertain and

858 (Tex.App.-Austin 2004, no pet.) speculative to support the Utilities' conten-

(internal citations omitted) (citing Perry, tion that their claims are ripe. Because the

66 S.W.3d at 249–50; Patterson, 971 Utilities complain of future enforcement,

S.W.2d at 442; City of Waco v. Texas Nat- they must show that enforcement is

ural Res. Conserv. Comm'n, 83 S.W.3d “imminent or sufficiently likely.” See Trin-

169, 177 (Tex.App.-Austin 2002, pet. ity Settlement, 417 S.W.3d at 506; Rea v.

denied)). “In the administrative-law con- State, 297 S.W.3d 379, 383

text, moreover, avoiding premature litiga- (Tex.App.-Austin 2009, no pet.) (to estab-

tion over administrative determinations lish ripeness, plaintiffs must demonstrate

prevents courts from ‘entangling them- injury is imminent, direct, and immediate,

selves in abstract disagreements over ad- not merely remote, conjectural, or hypo-

ministrative policies' while simultaneously thetical); Atmos Energy, 127 S.W.3d at 856

allowing the agency to perform its func- ; City of Waco, 83 S.W.3d at 175. A per-

tions unimpeded.” Trinity Settlement ceived threat of enforcement does not cre-

Servs., LLC v. Texas State Secs. Bd., 417 ate a justiciable controversy. Compare Mitz

S.W.3d 494, 506 (Tex.App.-Austin 2013, v. Texas State Bd. of Veterinary Med. Ex-

pet. denied) (quoting Patterson, 971 am'rs, 278 S.W.3d 17, 25

S.W.2d at 443). The determination of ripe- (Tex.App.-Austin 2008, pet. dism'd), with

ness depends on “(1) the fitness of the is- Beacon Nat'l Ins. Co. v. Montemayor, 86

sues for judicial decision; and (2) the hard- S.W.3d 260, 267–68 (Tex.App.-Austin

ship occasioned to the party by the court's 2002, no pet.).

denying judicial review.” Atmos Energy,

127 S.W.3d at 858 (citing Perry, 66 The Utilities attempt to characterize

S.W.3d at 250 (citing Abbott Labs. v. their claims as ripe by arguing that the lan-

Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, guage of the ordering paragraphs will re-

18 L.Ed.2d 681 (1967); City of Waco, 83 quire them to meet evidentiary require-

S.W.3d at 177)). Ripeness should be de- ments in all future annually required COSA

cided on the basis of all the information filings and that the orders place

available to the court, and we may consider “obligations and burdens” on them now.

intervening events that occur after the de- Tellingly, however, the Utilities argue that

cision in the lower court. Perry, 66 S.W.3d their failure to meet these obligations and

at 250; 13 Charles Alan Wright, Arthur R. burdens could bar recovery in a future

Miller, & Edward H. Cooper, Federal COSA proceeding. This perceived threat as

Practice & Procedure § 3532.1, at 136–37 to future COSA filings does not rise to the

(2d ed.1984). level of imminent or likely injury so as to

present a justiciable claim. See Mitz, 278

*3 We do not believe the Utilities have S.W.3d at 25 (contrasting actual initiation

affirmatively established that the issues of administrative action suggesting immin-

they presented were fit for review and that ent proceeding in that case with mere per-

the failure to address those issues would ceived threat in Beacon Nat'l, 86 S.W.3d at

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

267–68). And while we may consider inter- party's business and places it in jeopardy of

vening events that occur after a decision in sanction or penalty, that is sufficient to

the lower court, see Perry, 66 S.W.3d at show a hardship. Id.; Atmos Energy, 127

250, the Utilities have not presented any S.W.3d at 859.

evidence that the Commission has taken

any steps to impose the requirements on Here, the ordering paragraphs require

them since issuing the final orders or that the Utilities to present itemized receipts

there is any existing or continuing threat of and identify and justify certain expenses if

liability or penalty. Cf. Mitz, 278 S.W.3d at they want the Commission to allow their

25–26 (constitutional claim ripe for review inclusion in the calculation of future ad-

considering continuing threat of civil and justments. Documenting and justifying ex-

criminal liability against practitioners and penses to be included in rate calculations

direct effect act had on business enter- does not constitute “a significant change in

prise); Patel v. Texas Dep't of Licensing & [the Utilities'] conduct.” See Abbott Labs.,

Regulation, No. 03–11–00057–CV, 2012 387 U.S. at 153; Mitz, 278 S.W.3d at 26;

Tex.App. LEXIS 6187, at *23,2012 WL see also 18 C.F.R. pt. 201, General Instruc-

3055479 (Tex.App.-Austin July 25, 2012, tions, (2) Records (A) (Federal Energy

pet. granted) (constitutional claims ripe Regulatory Commission's (FERC's) Uni-

where appellants subject to continuing form System of Accounts (USOA)

threat of civil and criminal liability, as well (providing utilities shall keep books and re-

as administrative penalties and sanctions). cords “so as to be able to furnish readily

Thus, the Utilities have not established that full information as to any item included in

enforcement is imminent or sufficiently any account” and support each entry shall

likely, see Trinity Settlement, 417 S.W.3d “by such detailed information as will per-

at 506; Atmos Energy, 127 S.W.3d at 856; mit ready identification, analysis, and veri-

City of Waco, 83 S.W.3d at 175, and we fication of all facts relevant thereto”); 16

conclude that the Utilities' issues are not fit Tex. Admin. Code § 7.310(a) (Railroad

for judicial review, see Perry, 66 S.W.3d at Comm'n of Tex., System of Accounts

250; Atmos Energy, 127 S.W.3d at 858. (requiring gas utilities to use FERC's

USOA for all operating and reporting pur-

*4 To prevail, the Utilities must show poses); Tex. Util.Code § 104.008(1) (in

that they would suffer hardship if judicial proceeding involving rate change proposed

review is withheld until enforcement of the by utility, utility has burden of proving rate

requirements in the ordering paragraphs. change is just and reasonable); City of Am-

See Perry, 66 S.W.3d at 250; Atmos En- arillo v. Railroad Comm'n, 894 S.W.2d

ergy, 127 S.W.3d at 858. Hardship is 491, 498 (Tex.App.-Austin 1995, writ

shown when the statute, rule, or policy at denied) (in any proceeding to change rates,

issue “ ‘requires an immediate and signific- utility bears burden of proof to show rate

ant change in the plaintiffs' conduct of their change and components thereof, such as

affairs with serious penalties attached to operating expenses, are just and reason-

noncompliance.’ “ Mitz, 278 S.W.3d at 26 able).

(quoting Abbott Labs. v. Gardner, 387 U.S.

136, 153, 87 S.Ct. 1507, 18 L.Ed.2d 681 Moreover, the Utilities have not made

(1967)). When the requirement at issue has the requisite showing of hardship. See

a direct and immediate impact on the Perry, 66 S.W.3d at 250; Atmos Energy,

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

127 S.W.3d at 859–60. Significantly, they the trial court's judgment. See Tex.R.App.

are not aggrieved by the Commission's dis- P. 47.1 (appellate court opinions should be

allowance of undocumented expenses, as “brief as practicable”), 47 .4

which did not result in any changes to their (memorandum opinions should be “no

requested rates. Nor do they face any other longer than necessary to advise the parties

sanction or penalty for noncompliance. See of the court's decision and the basic reas-

Atmos Energy, 127 S.W.3d at 859 ons for it”).

(concluding appellants were not in jeop-

ardy of sanction or penalty because viola- CONCLUSION

tion of statute carried no sanction or pen- Having concluded that these cases are

alty). Likewise, here, the Utilities face no not fit for judicial decision and that denial

sanction or penalty for failure to comply of the requested relief will not constitute a

with the requirements because the ordering hardship on the Utilities, we reverse the

paragraphs include no provision for sanc- judgment and dismiss the Utilities' claims.

tions or penalties. Id.; cf. Mitz, 278 S.W.3d

Tex.App.-Austin,2014.

at 26 (appellants showed hardship where

Railroad Com'n of Texas v. CenterPoint

they faced continuing threat of civil and

Energy Resources Corp.

criminal liability). As noted above, the

Not Reported in S.W.3d, 2014 WL

Utilities argue that failure to meet the re-

4058727 (Tex.App.-Austin)

quirements could bar recovery in the fu-

ture. Even assuming future recovery of Briefs and Other Related Documents (Back

some expenses is actually barred at some to top)

point, the inability to recover all expenses

does not necessarily harm the Utilities. In • 2014 WL 644359 (Appellate Brief) Brief

fact, even after the questioned expenses of Appellee Centerpoint Energy Resources

were deducted because the Utilities were Corp., d/b/a Centerpoint Energy Entex and

unable to present the required documenta- Enterpoint Energy Texas Gas (Feb. 10,

tion, the Utilities' requested rates were not 2014) Original Image of this Document

affected, and the Commission approved with Appendix (PDF)

their requested rates. Nor is it certain that • 2014 WL 644360 (Appellate Brief) Brief

the Utilities will request the expenses at is- of Appellee Texas Gas Service Company, a

sue in future COSA filings; in these cases, Division of Oneok, Inc. (Feb. 10, 2014)

they withdrew the questioned expenses and Original Image of this Document with Ap-

nonetheless received the requested rates. pendix (PDF)

Thus, the Utilities are not faced with the • 2014 WL 644361 (Appellate Brief) Brief

dilemma of compliance or sanction, and of Appellee Centerpoint Energy Resources

they have failed to show the requisite hard- Corp., d/b/a Centerpoint Energy Entex and

ship. See Perry, 66 S.W.3d at 250; Atmos Centerpoint Energy Texas Gas (Feb. 10,

Energy, 127 S.W.3d at 859–60. 2014) Original Image of this Document

with Appendix (PDF)

*5 Because the Utilities have failed to • 2013 WL 6712920 (Appellate Brief)

establish a justiciable controversy, we sus- Amended Brief of Railroad Commission of

tain the Commission's first issue as to ripe- Texas (Dec. 10, 2013) Original Image of

ness. We therefore do not reach the Com- this Document with Appendix (PDF)

mission's second issue as to the merits of • 2013 WL 6712921 (Appellate Brief)

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7

Not Reported in S.W.3d, 2014 WL 4058727 (Tex.App.-Austin)

(Cite as: 2014 WL 4058727 (Tex.App.-Austin))

Amended Brief of Railroad Commission of

Texas (Dec. 10, 2013) Original Image of

this Document with Appendix (PDF) Attorneys

• 2013 WL 6712922 (Appellate Brief)

Attorneys for Appellant

Amended Brief of Railroad Commission of

• Fraser, Douglas Burt

Texas (Dec. 10, 2013) Original Image of

Austin, Texas 78701

this Document with Appendix (PDF)

Litigation History Report | Profiler

Attorneys for Appellee

Judges and Attorneys(Back to top) • McKaughan, Dane

Austin, Texas 78701

Judges | Attorneys Litigation History Report | Profiler

Judges

• Field, Hon. Scott K. END OF DOCUMENT

State of Texas Court of Appeals, 3rd Dis-

trict

Austin, Texas 78701

Litigation History Report | Judicial Re-

versal Report | Judicial Expert Challenge

Report | Profiler

• Goodwin, Hon. Melissa Young

State of Texas Court of Appeals, 3rd Dis-

trict

Austin, Texas 78701

Litigation History Report | Judicial Re-

versal Report | Judicial Expert Challenge

Report | Profiler

• Puryear, Hon. David E.

State of Texas Court of Appeals, 3rd Dis-

trict

Austin, Texas 78701

Litigation History Report | Judicial Re-

versal Report | Judicial Expert Challenge

Report | Profiler

• Yelenosky, Hon. Stephen Andrew

State of Texas District Court, 345th Dis-

trict

Austin, Texas 78701

Litigation History Report | Judicial Re-

versal Report | Judicial Expert Challenge

Report | Profiler

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 1

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

current data; and (6) in an opinion by Hecht,

Briefs and Other Related Documents J., the PUC was not required to reallocate

overpayments or underpayments of transition

Oral Argument Transcripts with Streaming charges by any one class among all customers.

Media

Affirmed in part, reversed in part, and re-

manded.

Judges and Attorneys

Owen, J., dissented in part and filed opin-

Supreme Court of Texas.

ion joined by Enoch and Baker, JJ.

TXU ELECTRIC COMPANY, et al., Appel-

lants, *275 Opinion by Justice Owen

v.

PUBLIC UTILITY COMMISSION OF West Headnotes

TEXAS, et al., Appellees.

[1] Electricity 145 8

No. 00–0936.

Argued Jan. 31, 2001. 145 Electricity

Decided June 6, 2001. 145k2 Electric Companies

Rehearing Overruled Aug. 30, 2001. 145k8 k. Indebtedness, liens, and mort-

gages. Most Cited Cases

Incumbent electric utility and intervenors Public Utility Commission (PUC) could

appealed decision by the Public Utility Com- employ a second present value test to determ-

mission (PUC) on financing for recovery of ine whether tangible and quantifiable benefits

utility's regulatory assets and stranded costs to ratepayers were provided by securitization

during deregulation to competitive market. The through bonds secured by incumbent electric

250th District Court, Travis County, reversed utility's transition charges to recover regulat-

and remanded in part. Appeal was taken. The ory assets and stranded costs during deregula-

Supreme Court, Owen, J., held that: (1) the tion to competitive market, but the PUC was

PUC could employ a second present value test required to assume that, absent securitization,

to determine whether tangible and quantifiable regulatory assets and stranded costs would be

benefits to ratepayers were provided by secur- recovered through competition transition

itization through bonds secured by transition charges in considerably less than forty years.

charges; (2) the PUC was required to assume V.T.C.A., Utilities Code §§ 39.201, 39.262,

that, absent securitization, regulatory assets 39.301, 39.303(a).

and stranded costs would be recovered through

competition transition charges in less than [2] Electricity 145 8

forty years; (3) it was not required to use the

145 Electricity

weighted average life of six years over which

145k2 Electric Companies

utility's transition bonds would be outstanding;

145k8 k. Indebtedness, liens, and mort-

(4) it lacked the discretion to consider utility's

gages. Most Cited Cases

regulatory assets on an asset-by-asset basis; (5)

Public Utility Commission (PUC) was not

it may apply the rate design methodology es-

required to use the weighted average life of six

tablished in an utility's last rate design case to

years over which incumbent electric utility's

the data in that rate case, rather than to more

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 2

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

transition bonds would be outstanding for the allocation factors that determine how transition

recovery of regulatory assets and stranded charges are to be allocated among classes of

costs during deregulation to competitive mar- customers in connection with deregulation to

ket; rather, to determine whether the amount competitive market. V.T.C.A., Utilities Code

securitized would exceed the present value of §§ 39.253(c-h).

the revenue requirement over the life of the

proposed transition bond associated with the [5] Electricity 145 8

regulatory assets or stranded costs sought to be

145 Electricity

securitized, the PUC could take into account

145k2 Electric Companies

the actual timing of bond payments until the

145k8 k. Indebtedness, liens, and mort-

last payment is made on the oldest bond after

gages. Most Cited Cases

twelve years. V.T.C.A., Utilities Code §

Finding and conclusion by Public Utility

39.301.

Commission (PUC) on adjustment for loss on

[3] Electricity 145 8 reacquired debt in future proceeding involving

electric utility were advisory and premature.

145 Electricity

145k2 Electric Companies [6] Electricity 145 11.5(1)

145k8 k. Indebtedness, liens, and mort-

145 Electricity

gages. Most Cited Cases

145k11.5 Discrimination and Overcharge

Public Utility Commission (PUC) lacked

145k11.5(1) k. In general. Most Cited

the discretion to consider incumbent electric

Cases

utility's regulatory assets on an asset-by-asset

Public Utility Commission (PUC) was not

basis in determining the amount to be securit-

required to reallocate overpayments or under-

ized through transition bonds for the recovery

payments of transition charges by any one

of regulatory assets and stranded costs during

class among all customers of incumbent elec-

deregulation to competitive market; rather, the

tric utility and thereby fully cross-collateralize

PUC was required to consider regulatory assets

responsibility for the transition to a competit-

in the aggregate to determine whether those as-

ive market; rather, it could engage in a non-

sets met the requirements for securitization

standard true-up of reallocating transition

and could not categorically exclude certain

charges among classes. V.T.C.A., Utilities

types of regulatory assets from securitization.

Code §§ 39.253, 39.307.

V.T.C.A., Utilities Code §§ 39.301, 39.303(a).

*276 Roy Q. Minton, Minton Burton Foster &

[4] Electricity 145 11.5(1)

Collins, Robert J. Hearon, Jr., Mary A. Keeney

145 Electricity , Graves Dougherty Hearon & Moody, Austin,

145k11.5 Discrimination and Overcharge Robert A. Wooldridge, Robert M. Fillmore,

145k11.5(1) k. In general. Most Cited Howard V. Fisher, Worsham Forsythe

Cases Wooldridge, Dallas, for Appellant.

(Formerly 145k11.3(1))

*277 Thomas K. Anson, Sheinfeld Maley &

Public Utility Commission (PUC) may ap-

Kay, Geoffrey M. Gay, Lloyd Gosselink Blev-

ply the rate design methodology established in

ins Rochelle, Austin, Alan W. Harris, Dallas,

an incumbent electric utility's last rate design

Marianne Carroll, David B. Gross, Carroll &

case to the data in that rate case, rather than to

Gross, Andrew Kever, Bickerstaff Heath Smi-

more current data, in order to establish demand

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 3

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

ley Pollan Kever & McDaniel, Mark C. Davis, appealed from the district court to this

Brickfield Burchette & Ritts, James K. Rourke Court).

, Thomas Lane Brocato, Suzi Ray McClellan,

Office of Public Utility Counsel, Steven Baron We hold that: 1) in order to ensure that se-

, Office of Attorney General of Texas, John curitization provides tangible and quantifiable

Cornyn, Attorney General of the State of benefits to ratepayers greater than would have

Texas, Jeffrey S. Boyd, Karen Watson Kornell, been achieved absent the issuance of transition

Douglas Fraser, Bryan L. Baker, Office of the bonds,FN3 the Commission may apply a

Attorney General, Jonathan Day, Lino Men- present value test in addition to the present

diola, Mayor Day Caldwell & Keeton, Diane value and revenue requirement tests expressly

Barlow–Sparkman, Mark W. Smith, J. Kay set forth in sections 39.301 and 39.303(a) of

Trostle, Elizabeth H. Drews, James G. Boyle, the PURA; 2) in applying an additional present

Law Office of Jim Boyle, Austin, for Appellee. value test, the Commission should assume that

recovery of regulatory assets and stranded

costs absent securitization would occur in sub-

PER CURIAM. stantially less than forty years; 3) the Commis-

In 1999, the Legislature amended the Pub- sion must consider regulatory assets that a util-

lic Utility Regulatory Act (PURA) to usher in ity seeks to securitize in the aggregate to de-

deregulation of retail electric utility rates in termine whether those assets meet the require-

Texas. FN1 As part of that plan, the Legis- ments for securitization and cannot categoric-

lature concluded that, subject to certain restric- ally exclude certain types of regulatory assets

tions, an existing utility like TXU Electric from securitization; 4) section 39.253 permits

Company may recover amounts that the PURA the Commission to apply the rate design meth-

defines as “regulatory assets” by using securit- odology established in a utility's last rate

ization financing. Securitization is accom- design case to the data in that rate case rather

plished through a financing order issued by the than to more current data, in order to establish

Commission that authorizes a utility to issue demand allocation factors that determine how

transition bonds. The transition bonds are re- transition charges are to be allocated among

paid or secured by transition charges to rate- classes of customers; 5) the Commission is au-

payers in a utility's service area. TXU reques- thorized by section 39.307 to adopt a non-

ted the Commission to issue a financing order standard true-up provision that reallocates

securitizing certain of its regulatory assets. transition charges among classes of customers

The Commission authorized securitization of in a manner that differs from the allocation

some but not all of those assets. A district procedures set forth in section 39.253; 6) none

court reversed the Commission's order in part of the other issues regarding allocation of

and remanded the case for further proceedings. transition costs among classes of customers

TXU and others bring this direct appeal to our has *278 merit; and 7) certain findings of fact

Court.FN2 and conclusions of law by the Commission are

advisory. Accordingly, we affirm the judgment

FN1. Act of May 27, 1999, 76th Leg.,

of the district court in part, reverse it in part,

R.S., ch. 405, 1999 Tex. Gen. Laws

and remand this case to the Commission for

2543.

further proceedings. Justice Owen's concurring

FN2. TEX. UTIL.CODE § 39.303(f) opinion is the opinion of the Court with re-

(providing that review of financing or- spect to the issues that it addresses, and Justice

ders under the PURA are to be directly Hecht's concurring opinion is the opinion of

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 4

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

the Court with respect to the issues that it ad- tion with the Public Utility Commission for a

dresses. financing order in which TXU sought to secur-

itize $1.65 billion in regulatory assets and oth-

FN3. All statutory references are to the er costs and proposed to write off about $285

Texas Utilities Code, unless otherwise million in regulatory assets. The Commission

indicated. allowed TXU to securitize $363 million of reg-

ulatory assets. TXU and several of the forty-

Justice OWEN filed a concurring opinion, in

four parties who had intervened in the pro-

which Chief Justice PHILLIPS, Justice

ceedings before the Commission appealed to

HECHT, Justice ENOCH, Justice BAKER,

district court in Travis County. The district

Justice ABBOTT, Justice HANKINSON, and

court held that: 1) the Commission did not err

Justice JEFFERSON joined.

in applying a present value test in addition to

Justice HECHT filed a concurring opinion, in

the present value and revenue requirement

which Chief Justice PHILLIPS, Justice AB-

tests set forth in sections 39.301 and 39.303(a)

BOTT, Justice HANKINSON, and Justice

of the PURA; 2) the Commission had the dis-

JEFFERSON joined.

cretion to consider TXU's regulatory assets on

Justice OWEN filed a dissenting opinion, in

an asset-by-asset basis in determining whether

which Justice ENOCH and Justice BAKER

securitization would provide tangible benefits

joined.

to ratepayers; 3) the Commission should have

Justice O'NEILL did not participate in the de-

examined how long it would take TXU to re-

cision.

cover the regulatory assets at issue under the

Justice OWEN, joined by Chief Justice PHIL-

regulatory scheme established by the 1999

LIPS, Justice HECHT, Justice ENOCH,

amendments to the PURA rather than under

Justice BAKER, Justice ABBOTT, Justice

the previously existing regulatory scheme; 4)

HANKINSON, and Justice JEFFERSON, con-

the Commission was not required to use the

curring.

average life of the transition bonds that would

In 1999, the Legislature determined that

be issued under the financing order in calculat-

partial deregulation of the electric power in-

ing the maximum amount that TXU could se-

dustry was in the public interest. To that end,

curitize; 5) the Commission's Finding of Fact

the Legislature amended the Public Utility

113 and references to that finding in Conclu-

Regulatory Act (PURA).FN1 In City of Corpus

sion of Law 41 and Ordering Paragraph 37, re-

Christi v. Public Utility Commission,FN2 also

garding future treatment of reacquired debt se-

decided today, we describe in some detail the

curitized under the financing order, are advis-

sections of the PURA that permit an electric

ory and have no res judicata effect; and 6) the

utility to securitize regulatory assets and stran-

Commission did not *279 err in its treatment

ded costs as part of the transition to market-

of certain rate design, allocation, and true-up

based retail electric rates. We need not repeat

issues.

that discussion here.

TXU, the Commission, the State of Texas,

FN1. Act of May 27, 1999, 76th Leg.,

the Office of Public Utility Counsel, Texas In-

R.S., ch. 405, 1999 Tex. Gen. Laws

dustrial Energy Consumers, Texas Retailers

2543.

Association, the Steering Committee of Cities

FN2. 51 S.W.3d 231 (Tex.2001). Served by TXU, the Coalition of Independent

Colleges and Universities, and Nucor Steel, a

TXU Electric Company filed an applica- division of Nucor Corporation, appealed dir-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 5

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

ectly to this Court pursuant to section coverable regulatory assets and stranded

39.303(f) of the PURA. costs, as determined by the commission in

accordance with this chapter, through the re-

I financing or retirement of utility debt or

[1] One of the principal issues in this ap- equity. The commission shall ensure that se-

peal is how to determine the amount of regu- curitization provides tangible and quantifi-

latory assets that a utility may securitize under able benefits to ratepayers, greater than

the PURA. Section 39.303(a) says that when a would have been achieved absent the issu-

utility applies to recover its regulatory assets ance of transition bonds. The commission

and eligible stranded costs, the Commission shall ensure that the structuring and pricing

shall adopt a financing order upon finding that of the transition bonds result in the lowest

“the total amount of revenues to be collected transition bond charges consistent with mar-

under the financing order is less than the rev- ket conditions and the terms of the financing

enue requirement that would be recovered over order. The amount securitized may not ex-

the remaining life of the stranded costs using ceed the present value of the revenue re-

conventional financing methods and that the quirement over the life of the proposed trans-

financing order is consistent with the standards ition bond associated with the regulatory as-

in Section 39.301.” FN3 The parties disagree sets or stranded costs sought to be securit-

about what constitute “the standards in Section ized. The present value calculation shall use

39.301.” Specifically, the parties diverge on a discount rate equal to the proposed interest

how the Commission is to carry out section rate on the transition bonds. FN5

39.301's directive that it “shall ensure that se-

curitization provides tangible and quantifiable

benefits to ratepayers, greater than would have FN5. Id.

been achieved absent the issuance of transition

§ 39.303. Financing Orders; Terms

bonds.” FN4

(a) The commission shall adopt a financing

FN3. TEX. UTIL.CODE § 39.303(a).

order, on application of a utility to recover

FN4. Id. § 39.301. the utility's regulatory assets and eligible

stranded costs under Section 39.201 or

A 39.262, on making a finding that the total

Section 39.301 and the relevant parts of amount of revenues to be collected under the

section 39.303 provide: financing order is *280 less than the revenue

requirement that would be recovered over the

§ 39.301 Purpose remaining life of the stranded costs using

conventional financing methods and that the

The purpose of this subchapter is to enable

financing order is consistent with the stand-

utilities to use securitization financing to re-

ards in Section 39.301.

cover regulatory assets and stranded costs,

because this type of debt will lower the car- (b) The financing order shall detail the

rying costs of the assets relative to the costs amount of regulatory assets and stranded

that would be incurred using conventional costs to be recovered and the period over

utility financing methods. The proceeds of which the nonbypassable transition charges

the transition bonds shall be used solely for shall be recovered, which period may not ex-

the purposes of reducing the amount of re- ceed 15 years.

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 6

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

*** suance of transition bonds,” the Commission is

(e) The commission shall issue a financing required to ascertain the present value of the

order under Subsections (a) and (g) not later revenue requirements of the regulatory assets

than 90 days after the utility files its request without securitization, using the actual sched-

for the financing order.FN6 uled life of the assets under the regulatory

scheme as it existed before the 1999 amend-

FN6. Id. § 39.303(a), (b), (e). ments to the PURA. The Commission main-

tains that it is then required to compare the

All parties agree that there are at least two

outcome of that analysis with the present value

limitations on the maximum amount of regu-

computation specified in the final two sen-

latory assets or stranded costs that can be se-

tences of section 39.301 to see if securitization

curitized. One limitation is found in the last

results in a greater benefit to ratepayers.

two sentences of section 39.301. They require

a present value test. The present value test ex- The revenue requirement over the forty-

pressly set forth in section 39.301 examines year remaining life of the assets that TXU

the revenue requirement over the life of the seeks to securitize was about $2.467 billion.

bonds, which under the PURA cannot exceed Using the interest rates that TXU expected

fifteen years.FN7 would apply to the transition bonds, the reven-

ue requirement of the bonds was about $124

FN7. Id. § 39.302(6).

million less than $2.467 billion. Using TXU's

Another limitation on the amount that may “worst case” scenario for interest rates, the

be securitized is the revenue requirement test revenue requirement of the bonds was about

required by section 39.303(a). All parties agree $100,000 less than the $2.467 billion. TXU

that under that provision, the total revenues to thus meets the revenue requirement test.

be collected under the financing order, includ- However, the Commission argues that when

ing the costs of issuing and servicing the the present value of transition charges collec-

bonds, must be less than the revenue require- ted over the twelve-year life of the transition

ment using conventional financing methods bonds is compared with the present value of

over the remaining life of the assets, which in payment for the regulatory assets over their

this case is presently up to forty years. There is *281 forty-year life through utility rates, it can

no present value test component in determin- be seen that securitization will harm, not bene-

ing whether the total revenue requirement is fit, ratepayers. The Commission's financing or-

met. The revenue requirement in total dollars der in this case reflects that if a remaining life

over the life of the bonds is compared with the of up to forty years for the regulatory assets is

revenue requirement in total dollars over the used in a present value analysis, the increased

remaining life of the regulatory assets. cost to ratepayers could be $204 million. Some

of the intervenors assert that increased costs

The Commission and other parties to this could be as much as $500 million, using a

appeal have taken the position that there is a forty-year life without taking into account oth-

third limitation on the amount that may be se- er benefits that there might be to ratepayers.

curitized. They contend that in order for the

Commission to discharge its obligation to TXU takes the position that the Commis-

“ensure that securitization provides tangible sion is not authorized to engraft onto the

and quantifiable benefits to ratepayers, greater PURA's securitization provisions a present

than would have been achieved absent the is- value test that is different from or in addition

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 7

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

to the present value test expressly set forth in sections 39.301 and 39.303(a) best comports

section 39.301. TXU contends that the only with the express provisions of the PURA. We

computations that the Legislature intended to agree with the district court that the Commis-

be performed in determining the amount to be sion is authorized to impose a second present

securitized are the two computations to be per- value test in determining the amount of regu-

formed under sections 39.301 and 39.303(a), latory assets or stranded costs that can be se-

which are the present value calculation re- curitized, but in determining present value

quired by the last two sentences of section “absent the issuance of transition bonds,” the

39.301 and the total revenue test under section Commission should use a remaining life for

39.303(a). TXU contends that the requirement the assets that is far less than forty years. The

that ratepayers receive a tangible and quantifi- PURA contemplates that the transition to “a

able benefit from securitization is measured by fully competitive electric power industry” FN8

these tests and other considerations. TXU says will span considerably less than forty years.

that there are quantifiable benefits to ratepay-

ers from securitizing the $1.65 billion of regu- FN8. Id. § 39.001(a).

latory assets because to meet the total revenue

B

test in section 39.303(a) and the present value

We begin our analysis with the text of sec-

test set forth in the last two sentences of sec-

tion 39.301. As indicated above, the sentence

tion 39.301, TXU would write off and never

that gives rise to the controversy says, “The

recover from ratepayers approximately $285

commission shall ensure that securitization

million in regulatory assets.

provides tangible and quantifiable benefits to

The district court adopted somewhat of a ratepayers, greater than would have been

middle ground. It concluded that the Commis- achieved absent the issuance*282 of transition

sion had the discretion to apply a second bonds.” FN9 The first question that must be

present value test to determine whether secur- answered in order to satisfy this statutory re-

itization provides “tangible and quantifiable quirement is what would happen to the regulat-

benefits” within the meaning of section 39.301 ory assets at issue if they were not securitized.

. But the district court differed with the Com-

FN9. Id. § 39.301.

mission about how the second present value

test should be calculated. The district court The PURA provides that if a utility does

concluded that the phrase “absent the issuance not securitize all or some of its regulatory as-

of transition bonds” in section 39.301 required sets and stranded costs, they can be recovered

the Commission to base its second present through nonbypassable “competition transition

value calculation “on the asset recovery period charge[s].” FN10 Section 39.201(k) gives the

that exists under the new regulatory scheme” Commission discretion to determine the length

of the PURA. More specifically, the district of time over which regulatory assets and stran-

court held that the Commission's second ded costs may be recovered by this method.

present value test could not “lawfully be based FN11 All parties, including the Commission,

upon the recovery periods under the earlier agree that the Commission could shorten the

system of rate regulation that provided for as- remaining life over which regulatory assets

set lives up to 40 years.” and stranded costs will be recovered to a time

period far less than the remaining life of up to

For the reasons considered below, we con-

forty years that those assets and costs would

clude that the district court's construction of

have had absent the 1999 amendments to the

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Page 8

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

PURA. The determination of the appropriate ition charges. Each electric utility was required

recovery period would occur in a rate proceed- to file by April 1, 2000 proposed tariffs that in-

ing that is separate from securitization. cluded any expected competition transition

charges. All or any part of a utility's regulatory

FN10. Id. § 39.201. assets that are not securitized can be recovered

through competition transition charges.FN12

FN11. Id. § 39.201(k).

Section 39.201(k) sets forth the factors that the

A large part of the regulatory assets that Commission is to consider in determining the

TXU seeks to securitize are Statement of Fin- length of time over which stranded costs, in-

ancial Accounting Standard (SFAS) 109 as- cluding regulatory assets, will be recovered.

FN13 The PURA indicates that a *283 consid-

sets. SFAS 109 assets essentially represent

amounts that TXU would have recovered un- erable portion of these costs are to have been

der the former regulatory scheme from rate- recovered within the two-year period after cus-

payers over a period of forty years to pay fed- tomer choice begins on January 1, 2002.FN14

eral income taxes that it will owe in connec- Section 39.201(l ) provides for a true-up pro-

tion with expenditures it made in the past that ceeding in January 2004 in which adjustments

were capitalized instead of expensed. The may be made to recover “any remaining stran-

Commission asks this Court to authorize a ded costs.” FN15 The Commission may extend

present value test for these assets based on a the collection period for competition transition

remaining life of forty years even though the charges, if necessary.FN16 This indicates that

Commission knows that in all probability, un- the recovery period for the competition trans-

der section 39.201(k), it will shorten the re- ition charge initially set by the Commission

maining life to something far less than forty will be a relatively short period of time, and

years. Notwithstanding the Commission's re- that any extension will likewise be a relatively

cognition of this fact, it maintains that the dis- short period of time. Section 39.262 contem-

trict court erred in requiring it to use a remain- plates that if, during the 2004 true-up proceed-

ing life of less than forty years because amount ing, there are stranded costs in addition to

of any reduction to the forty-year recovery those previously estimated, those remaining

period has yet to be determined. The Office of costs can be added to the amounts to be re-

Public Utility Counsel similary argues says covered by competition transition charges, or

that “the essential problem with the lower at the utility's option, securitized through

court's position is that neither TXU, the Dis- bonds that cannot have a life longer than fif-

trict Court, or anyone else can state with any teen years.FN17 The fact that a utility may se-

level of precision over what period the non- curitize remaining stranded costs and regulat-

securitized assets will be recovered.” ory assets, but over a period of time not to ex-

ceed fifteen years,FN18 indicates that the Le-

Although there may be some uncertainty as gislature had something considerably less than

to precisely how much the Commission would forty years in mind for the transition to “a fully

shorten the recovery period for the regulatory competitive electric power industry.” FN19

assets at issue if they were not securitized, that

uncertainty does not justify the use of a forty- FN12. See id. § 39.201(i).

year life. The PURA contemplates a far shorter

FN13. Section 39.201(k) provides:

recovery period for regulatory assets and other

stranded costs that are not securitized but are (k) In determining the length of time

instead recovered through competition trans- over which stranded costs under Sub-

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Page 9

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

section (h) may be recovered, the FN16. Id.

commission shall consider:

FN17. Section 39.262(c) provides:

(1) the electric utility's rates as of the

end of the freeze period; (c) After January 10, 2004, at a

schedule and under procedures to be

(2) the sum of the transmission and determined by the commission, each

distribution charges and the system transmission and distribution utility,

benefit fund fees; its affiliated retail electric provider,

and its affiliated power generation

(3) the proportion of estimated stran- company shall jointly file to finalize

ded costs to the invested capital of the stranded costs under Subsections (h)

electric utility; and and (i) and reconcile those costs with

the estimated stranded costs used to

(4) any other factor consistent with

develop the competition transition

the public interest as expressed in this

charge in the proceeding held under

chapter.

Section 39.201. Any resulting differ-

Id. § 39.201(k). ence shall be applied to the nonby-

passable delivery rates of the trans-

FN14. Section 39.102(a) provides that mission and distribution utility, ex-

customer choice begins, with certain cept that at the utility's option, any or

exceptions not material here, on Janu- all of the remaining stranded costs

ary 1, 2002. Id. § 39.102(a). may be securitized under Subchapter

G.

FN15. Section 39.201(l) says:

Id. § 39.262(c). The recovery period

Two years after customer choice is for transition charges under the

introduced, the stranded cost estimate PURA's securitization scheme is lim-

under this section shall be reviewed ited to fifteen years by section

and, if necessary, adjusted to reflect a 39.303(b), and the life of transition

final, actual valuation in the true-up bonds is similarly limited to fifteen

proceeding under Section 39.262. If, years by section 39.302(6). Id. §§

based on that proceeding, the compet- 39.303(b), 39.302(6).

ition transition charge is not suffi-

cient, the commission may extend the FN18. Id. § 39.303(b).

collection period for the charge or, if

necessary, increase the charge. Al- FN19. Id. § 39.001(a).

ternatively, if it is found in the true-

Statements made by PUC Commissioners

up proceeding that the competition

at an open meeting in this case are consistent

transition charge is larger than is

with our understanding of the Legislature's in-

needed to recover any remaining

tent. Those Commissioners indicated that com-

stranded costs, the commission

petition transition charges, which would be the

may:....

method for recovering regulatory assets and

Id. § 39.201(l). stranded costs absent securitization, would be

collected over a period of time that would be

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Page 10

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

unlikely to exceed fifteen years and that *284 on the transition bonds.

could be as few as eight years. Those state-

ments are not binding, but they indicate that Id. § 39.301.

the Commission understands that the Legis-

The Commission's method of calculating

lature did not intend for the transition to a fully

present value takes into account the actual tim-

competitive market to be protracted.

ing of bond payments until the last payment is

We therefore conclude that the district made on the oldest bond. The Commission

court did not err in holding that the Commis- concluded, and we agree, that accounting for

sion could employ a present value test in addi- the actual timing of payments is necessary to

tion to the present value test expressly set forth determine present value. TXU's averaging

in section 39 .301, but that the Commission method does not mathematically account for

must assume that absent securitization, regu- transition charges that will be collected until

latory assets and stranded costs would be re- the last of the series of transition bonds ma-

covered through competition transition charges tures twelve years from the date of issuance.

in considerably less than forty years.

III

II [3] Another significant issue presented is

[2] The financing order in this case ap- whether, in determining the amount to be se-

proved the issuance of a series of transition curitized, the Commission must consider the

bonds with differing maturity dates TXU ex- regulatory assets or other stranded costs to be

plains that this was designed to allow its regu- securitized in the aggregate or, instead, may

latory assets to be securitized at the lowest conduct an asset-by-asset analysis. We con-

overall interest rate on the best possible terms, clude that the Commission must consider regu-

and no one takes issue with that assertion. The latory assets in the aggregate for the same

bonds' maturity dates range from one to twelve reasons expressed in Corpus Christi.FN21

years after their issuance. TXU contends that

FN21. 51 S.W.3d at 231 – 255.

in performing the present value test set forth in

the last two sentences of section 39.301,FN20 Briefly, what is at issue in this case are reg-

the Commission should have used the ulatory assets that do not currently earn a re-

weighted average life over which the bonds turn. The majority of TXU's regulatory assets

will be outstanding, which would be approxim- fall into this category. Among TXU's regulat-

ately six years, rather than twelve years. We ory assets that earn no return are approxim-

approve of the Commission's methodology. ately $1.45 billion in SFAS 109 assets. As ex-

plained above, these assets essentially repres-

FN20. The last two sentences of section

ent amounts that TXU would have recovered

39.301 provide:

under the former regulatory scheme from rate-

The amount securitized may not ex- payers to pay federal income taxes that it will

ceed the present value of the revenue owe, when it recovers through rates, expendit-

requirement over the life of the pro- ures it made in the past that were capitalized

posed transition bond associated with instead of expensed.

the regulatory assets or stranded costs

Some of TXU's regulatory assets do earn a

sought to be securitized. The present

return, as much as 13.637 percent. The pro-

value calculation shall use a discount

posed interest rate on TXU's transition bonds

rate equal to the proposed interest rate

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Page 11

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

was 7.24 percent. Accordingly,*285 there was bonds” FN27 authorizes the Commission to

considerable room to aggregate some of TXU's “maximize” benefits to ratepayers by refusing

regulatory assets that earned no return with to securitize certain types of regulatory assets

regulatory assets that earn a relatively high rate when 100 percent of regulatory assets are

of return and still have a net benefit to ratepay- “qualified costs” under the PURA.FN28

ers from securitization.

FN22. Id.

The State of Texas, the Office of Public Utility

Counsel, and Texas Industrial Energy Con- FN23. TEX. UTIL.CODE § 39.303(a).

sumers have taken the position that to maxim-

FN24. Id. § 39.302(5).

ize the benefit of securitization to ratepayers,

all regulatory assets that do not earn a rate of FN25. Id. §§ 39.302(4), 39.201(i)(1).

return should be declared ineligible for securit-

ization. The State and those aligned with it on FN26. Id. §§ 39.303(a), 39.301.

these issues contend that each regulatory asset

must be analyzed on a stand-alone basis to de- FN27. Id. § 39.301.

termine if securitization of that asset benefits

FN28. Id. § 39.302(4).

ratepayers. As we explain in Corpus Christi,

the PURA does not support that position.FN22 The district court erred in concluding that the

The PURA says that all regulatory assets are to Commission has the discretion to consider reg-

be securitized on application of a utility, sub- ulatory assets on an asset-by-asset basis. Be-

ject to the requirement that “the total amount cause the Commission did not consider the

of revenues to be collected under the financing regulatory assets and other costs that TXU

order” meets certain requirements.FN23 The sought to securitize in the aggregate, the Com-

PURA defines “regulatory asset” with spe- mission must do so on remand.

cificity.FN24 Regulatory assets are defined

with reference to a utility's 1998 Securities and IV

Exchange Commission Form 10–K, which lists [4] A number of parties have challenged the

regulatory assets. A utility is entitled to secur- manner in which the Commission allocated

itize 100 percent of its regulatory assets,FN25 transition charges among customer classes.

subject only to the tests in sections 39.303(a) TXU proposed and the Commission adopted

and 39 .301.FN26 The present value test in seven regulatory asset recovery classes for

section 39.301 ensures that a utility will not re- purposes of collecting transition charges.

cover a return on these assets higher than the Those classes and the regulatory asset alloca-

return it would receive under the existing regu- tion factors assigned to each under section

latory scheme. Neither the present value test 39.253 are:

nor the requirement in section 39.301 that the

Commission “ensure that securitization

provides tangible and quantifiable benefits to

ratepayers, greater than would have been

achieved absent the issuance of transition

Class: Allocation Factor:

Residential 41.2705%

General Service—Secondary 44.7323%

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Page 12

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

General Service—Primary 5.8982%

High Voltage Service 2.7875%

Lighting Service 0.6836%

Instantaneous Interruptible 1.8568%

Noticed Interruptible 2.7711%

Total 100.0000%

FN29. Id. § 39.253(c)-(h).

Nucor Steel is in the Instantaneous Inter-

ruptible regulatory asset recovery class. Nucor FN30. 51 S.W.3d at 257.

Steel is a nonfirm, also known as an interrupt-

ible, customer on TXU's system. A utility may FN31. Tex. Util.Code § 39.253(c)-(e).

interrupt service to an interruptible customer

FN32. Id. § 39.253(c).

for specified reasons, typically during periods

of high demand from other customers on that FN33. Id. § 39.253(g).

utility's system. Texas Industrial Energy Con-

sumers *286 (TIEC) is a voluntary association FN34. Cf. Corpus Christi, 51 S.W.3d at

of companies that operates industrial facilities 259.

in TXU's service area. Nucor Steel and TIEC

take issue with how the Commission determ- We conclude in Corpus Christi and in this

ined the percentage of transition costs each case that the PURA is unclear in this regard.

FN35 In such a situation, we give some defer-

customer class would bear. Nucor Steel and

TIEC assert that the Commission should have ence to the Commission as long as its inter-

used the more current, 1999 data rather than pretation of a code provision is a reasonable

the data used in TXU's most recent rate-design one and does not conflict with the code's lan-

case, which was 1997 data. guage.FN36 The Commission construed sec-

tion 39.253 to mean that the methodology used

The pertinent section of the PURA is in a utility's last rate design case is to be ap-

39.253(c)-(h).FN29 As we explain in greater plied to the data used in that rate case. That is

detail in Corpus Christi,FN30 the allocation of a reasonable construction of the PURA that

stranded costs under section 39.253 has two does not contradict any of its language, and we

basic components. One is determined by ap- agree with the Commission's construction.

plying the same “methodology used to allocate

the costs of the underlying assets in the electric FN35. Id.

utility's most recent commission order address-

FN36. See Stanford v. Butler, 142 Tex.

ing rate design.” FN31 The other is the energy

692, 181 S.W.2d 269, 273 (1944)

consumption of the respective classes FN32

(observing that courts will ordinarily

“based on the relevant class characteristics as

adopt and uphold a construction placed

of May 1, 1999, adjusted for normal weather

upon a statute by a department charged

conditions.” FN33 The question presented here

with its administration if the statute is

is whether the Commission should apply the

ambiguous or uncertain, and the con-

same methodology used in TXU's last rate

struction is reasonable); Texas Ass'n of

design case to the data used in that rate case, or

Long Distance Tel. Cos. v. Pub. Util.

whether the Commission is free to choose

Comm'n, 798 S.W.2d 875, 884

more recent data.FN34

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 13

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

(Tex.App.—Austin 1990, writ denied) customers shall be allocated stranded

(observing that construction of a statute costs equal to 150 percent of the

by an administrative agency charged amount allocated to that class”).

with its enforcement is entitled to great

weight, particularly if the statute is am- TIEC says that in determining how much

biguous, so long as the agency's con- of the transition costs should be allocated to

struction is reasonable and does not the industrial classes, the Commission should

contradict the plain language of the have excluded load lost when customers

statute); TEX. GOV'T CODE § switched to sources of power that exempt them

311.023(6) (providing that in constru- from paying transition charges.FN39 Again,

ing a statute, whether or not the statute for the reasons we consider in Corpus Christi,

is considered ambiguous on its face, a we reject that argument.FN40

court may consider the administrative

FN39. See id. § 39.262(k).

construction of the statute).

FN40. 51 S.W.3d at 259 – 261.

V

Several parties who are also parties in Cor- VI

pus Christi raise many of the same issues in [5] Several parties to this appeal, including

both cases.FN37 Our decision in CP & L re- the Commission, contend that the district court

solves each of these issues, and we will not erred when it held that the Commission's Find-

lengthen this opinion by reiterating all the ing of Fact 113 and references to that finding

reasons for our holdings. We instead briefly in Conclusion of Law 41 and Ordering Para-

summarize each issue and our disposition. graph 37 were “advisory and superfluous to

the Order and therefore [have] no res judicata

FN37. Those parties include the Office

effect.” The finding of the Commission that is

of Public Utility Counsel, Texas Indus-

at issue concerned loss on reacquired debt.

trial Consumers, and Nucor Steel, who

filed an amicus brief with this Court in TXU reacquired preferred stock and high-

Corpus Christi. cost debt before the maturity date of that debt

by paying a premium. The loss TXU sustained

Certain of TXU's customers assert that the

in those transactions is included in the defini-

Commission failed to follow section 39.253 in

tion of regulatory assets under the PURA, and

allocating transition costs to the *287 non-firm

the Commission allowed TXU to include loss

industrial customer classes. They contend that

on reacquired debt as part of the amount secur-

the Commission erred in applying the 150 per-

itized in the financing order. This same loss on

cent demand allocator required by section

reacquired debt is also reflected as an increase

39.253(d) FN38 to all the transition costs

in TXU's cost of capital, and that in turn in-

rather than first subtracting the transition costs

creases TXU's rate of return. The Commission

allocated to residential customers. We hold in

and others were concerned that TXU would

this case, as we do in Corpus Christi, that sec-

enjoy a double recovery of its losses. Respond-

tion 39.253 is ambiguous in this regard and

ing to that concern, the Commission concluded

that the Commission's construction is a reason-

that loss on reacquired debt “should not be re-

able one and should be accorded deference.

moved from [TXU's] cost-of-capital calcula-

FN38. TEX. UTIL.CODE § 39.253(d) tion for purposes of the annual report submit-

(requiring that “[n]on-firm industrial ted pursuant to PURA § 39.257,” but that in-

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 14

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

stead an adjustment should be made in future Commission should assume that recovery of

proceedings.FN41 In the Financing Order, regulatory assets and stranded costs absent se-

Finding of Fact 113, the Commission said that: curitization would occur in substantially less

than forty years; 3) the Commission must con-

FN41. Tex. Pub. Util. Comm'n, Applic- sider regulatory assets that a utility seeks to se-

ation of TXU Electric Company for curitize in the aggregate to determine whether

Financing Order to Securitize Regulat- those assets meet the requirements for securit-

ory Assets and Other Qualified Costs, ization and cannot categorically exclude cer-

Docket No. 21527 (May 2, 2000). tain types of regulatory assets from securitiza-

tion; 4) section 39.253 permits the Commis-

[A]n adjustment should be made in the true

sion to apply the rate design methodology es-

up proceeding under PURA § 39.262 to ac-

tablished in a utility's last rate design case to

count for the effect of securitizing the loss on

the data in that rate case rather than to more

reacquired debt on [TXU's] cost of capital.

current data, in order to establish demand al-

This treatment is necessary to comply with

location factors that determine how transition

the Legislature's mandate in PURA §

charges are to be allocated among classes of

39.262(a) that a utility and its affiliates “may

customers; 5) none of the other issues regard-

not be permitted to overrecover stranded

ing allocation of transition costs among classes

costs” by using any of the methods provided

of customers has merit; and 6) certain findings

in Chapter 39 [§ 39.262(a) ]. In addition, any

of fact and conclusions of law by the Commis-

determinations regarding the effect of secur-

sion are advisory.

itizing loss on reacquired debt on the calcula-

Justice HECHT, joined by Chief Justice PHIL-

tion of stranded costs should not be made in

LIPS, Justice ABBOTT, Justice HANKINSON

this docket but should be made in [TXU's]

, and Justice JEFFERSON, concurring.

cost unbundling case under PURA § 39.201.

FN42 We join fully in the Court's judgment and

in JUSTICE OWEN's concurring opinion. This

FN42. Id. (footnote omitted). is the opinion of the Court regarding the valid-

ity of the “non-standard true-up” included in

We agree with the district court that this the Public Utility Commission's financing or-

was an advisory and premature finding.*288 der for TXU Electric Company.

Whether an adjustment is required in a true-up

or other future proceeding should await resolu- [6] The financing order for TXU contains a

tion in that proceeding. non-standard true-up procedure essentially

identical to the one in the financing order for

***** Central Power and Light Company, which we

For the reasons considered above, we con- approve today in City of Corpus Christi v.

clude that: 1) in order to ensure that securitiza- Public Utility Commission, 51 S.W.3d 231

tion provides tangible and quantifiable benefits (Tex.2001). A Commission witness testified

to ratepayers greater than would have been that if any TXU customer class experienced a

achieved absent the issuance of transition decrease in power usage of more than six to

bonds, the Commission may apply a present nine percent, that class would be “at risk for a

value test in addition to the present value and cascading loss scenario.” The arguments for

revenue requirement tests expressly set forth in and against that procedure in this case are the

sections 39.301 and 39.303(a) of the PURA; 2) same as those made in Corpus Christi with one

in applying an additional present value test, the exception. Nucor Steel, one of TXU's largest

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 15

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

customers, argues that any overpayments or

underpayments of transition charges by any

one class should be reallocated among all Judges and Attorneys(Back to top)

TXU's customers, thereby fully cross-

Judges | Attorneys

collateralizing responsibility for the transition

as TXU proposed to the Commission. Without Judges

deciding whether the Commission was em-

powered to depart this far from the allocation • Abbott, Hon. Michael

requirements of section 39.253, we easily con- State of Texas Municipal Court, City of Vidor

clude that the Commission was not required to Vidor, Texas 77662

adopt this approach instead of the somewhat Litigation History Report | Judicial Reversal

more restricted non-standard true-up. For the Report | Profiler

same reasons explained in our concurring

opinion in that case, we approve of the non- • Enoch, Craig T.

standard true-up procedure in this case.

Litigation History Report | Judicial Reversal

Justice OWEN, joined by Justice ENOCH and Report | Profiler

Justice BAKER, dissenting.

• Hankinson, Hon. Deborah G.

The financing order for TXU contains a

non-standard true-up provision that is virtually Litigation History Report | Judicial Reversal

identical to the non-standard true-up provision Report | Profiler

at issue in *289City of Corpus Christi v. Pub-

lic Utility Commission,FN1 which the Court • Hecht, Hon. Nathan L.

also decides today. For the reasons set forth in State of Texas Supreme Court

my dissent in that case, I also dissent from the Austin, Texas 78701

Court's approval of the non-standard true-up Litigation History Report | Judicial Reversal

procedure in TXU's financing order. Report | Judicial Expert Challenge Report |

Profiler

FN1. 51 S.W.3d 231 (Tex.2001).

• Jefferson, Hon. Wallace B.

Tex.,2001. Litigation History Report | Judicial Reversal

TXU Elec. Co. v. Public Utility Com'n of Report | Profiler

Texas

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. • O'Neill, Hon. Alice

Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126 State of Texas Municipal Court, City of Hous-

ton

Briefs and Other Related Documents (Back to Houston, Texas 77002-1553

top) Litigation History Report | Judicial Reversal

Report | Judicial Expert Challenge Report |

• 00-0936 (Docket) (Sep. 11, 2000)

Profiler

Oral Argument Transcripts with Streaming

• Owen, Hon. Priscilla Richman

Media (Back to top)

United States Court of Appeals, Fifth Circuit

• 2001 WL 36161699 (Oral Argument) Oral New Orleans, Louisiana 70130-3408

Argument (Jan. 31, 2001) Litigation History Report | Judicial Reversal

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 16

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

Report | Judicial Expert Challenge Report | • Cornyn, John

Profiler Washington, District of Columbia 20510

Litigation History Report | Profiler

Attorneys • Davis, Mark C.

Austin, Texas 78701-2415

Attorneys for Appellant Litigation History Report | Profiler

• Fillmore, Hon. Robert M.

Unknown State • Day, Jonathan

Litigation History Report | Profiler Houston, Texas 77002

Litigation History Report | Profiler

• Hearon, Robert J. Jr.

Austin, Texas 78701 • Drews, Elizabeth H.

Litigation History Report | Profiler Austin, Texas 78701-4093

Litigation History Report | Profiler

• Keeney, Mary A.

Austin, Texas 78701 • Gay, Geoffrey M.

Litigation History Report | Profiler Austin, Texas 78701

Litigation History Report | Profiler

• Minton, Roy Q.

Austin, Texas 78701-2198 • Gross, David B.

Litigation History Report | Profiler Ridgeland, Mississippi 39157-8766

Litigation History Report | Profiler

Attorneys for Appellee

• Anson, Thomas K. • Kever, Andrew

Austin, Texas 78701 Austin, Texas 78701

Litigation History Report | Profiler Litigation History Report | Profiler

• Baker, Bryan Lawrence • Mendiola, Lino III

Austin, Texas 78701 Austin, Texas 78701

Litigation History Report | Profiler Litigation History Report | Profiler

• Baron, Steven • Rourke, James K. Jr.

Austin, Texas 78763 Austin, Texas

Litigation History Report | Profiler Litigation History Report | Profiler

• Boyd, Hon. Jeffrey S.

Unknown State

Litigation History Report | Profiler

• Brocato, Thomas L.

Austin, Texas 78701

Litigation History Report | Profiler

• Carroll, Marianne

Austin, Texas 78701-4093

Litigation History Report | Profiler

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.

Page 17

51 S.W.3d 275, Util. L. Rep. P 26,789, 44 Tex. Sup. Ct. J. 854, 44 Tex. Sup. Ct. J. 1126

(Cite as: 51 S.W.3d 275)

END OF DOCUMENT

© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.