# State v. Thomas > Texas Supreme Court · February 15, 1989 · 32 Tex. Sup. Ct. J. 203 URL: https://www.frixlaw.com/law-library/cases/9640460 ## Case - **Full name:** The STATE of Texas, Relator, v. Dennis THOMAS, Jo Campbell, and Marta Greytok, Commissioners of the Public Utility Commission of Texas, Respondents - **Court:** Texas Supreme Court - **Decided:** February 15, 1989 - **Citations:** 32 Tex. Sup. Ct. J. 203; 766 S.W.2d 217; 1989 Tex. LEXIS 11; 1989 WL 13187 - **Precedential status:** Published - **Opinion:** Dissent by Hecht - **Judges:** Mauzy, Gonzalez, Hecht, Phillips, Cook - **Cited by:** 24 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/9640460 ## How later opinions describe it (automated extraction) - explaining that legislature cannot “by statute abrogate the Attorney General’s constitutional grant of power” and that constitutional balance of powers may only be altered “by constitutional amendment” ## Opinion text HECHT, Justice, dissenting. Today the Court holds that the Attorney General has a constitutional right to intervene in proceedings before the Public Utility Commission. In fact, the Attorney General claims no such right in this case. He claims only the right to provide legal representation to various state agencies before the PUC. Those agencies, not the Attorney General, claim the right to intervene in PUC proceedings. Thus, the Court confers upon the Attorney General a right he does not claim, and one I believe he does not possess. Furthermore, the Court issues its writ of mandamus 1 even though the strict *223 prerequisites to such extraordinary relief have not been, and I believe cannot be, demonstrated. Finally, the Court grants this extraordinary relief in an unprecedented case: an action by the State, represented by the Attorney General, against a state agency, also represented by the Attorney General. In effect, the State has sued itself, the Attorney General has argued against himself, and each has both won and lost. Nonlawyers certainly, and perhaps lawyers as well, will wonder at such a case; the Court does not even comment on these most unusual circumstances. I would deny mandamus in this case because neither of the two prerequisites to such relief has been met. Specifically, the PUC’s action challenged by the State was discretionary and not in violation of any duty upon the commission; and there is another remedy, appeal, fully adequate to redress any wrong done here. I agree with the result reached by the Court in its prior opinion, but not entirely with its reasoning. I would consider granting relator’s motion for rehearing only to alter the basis for the Court’s prior ruling. Because the Court today goes further and reverses itself altogether, I respectfully dissent. I The Attorney General neither claims nor possesses a constitutional right to intervene himself in proceedings before the Public Utility Commission. A In two related proceedings before the PUC, Central Power and Light Company and Houston Lighting and Power Company requested deferred accounting treatment of certain costs of the South Texas Nuclear Project. 2 In an unrelated proceeding, Southwestern Electric Power Company applied to the PUC for allowance of certain refunds. 3 In each of these three PUC rate-making proceedings, a number of entities referring to themselves collectively as “The Texas State Agencies” petitioned to intervene as customers of the respective utility involved. These self-styled “state agencies” included various state departments, commissions, hospitals and universities. 4 The Attorney General claims to represent all these entities in these proceedings. 5 The hearing examiner in each case granted the petition in intervention, and the general counsel appealed to the commission. In its order issued October 7, 1987, the commission reversed the hearing examiners and refused to allow the “state agencies” to intervene. Specifically, the commission concluded that the right to intervene was reserved to “persons” or “affected persons” as defined by either the Public Utility Regulatory Act [“PURA”], Tex.Rev. Civ.Stat.Ann. art. 1446c, § 3(a), (h) (Vernon Supp.1989), the Administrative Procedure and Texas Register Act [“APTRA”], Tex. Rev.Civ.Stat.Ann. art. 6252-13a, § 3(6) (Vernon Supp.1989), or the Public Utility Commission’s Rules of Practice and Procedure, Tex.Admin.Code tit. 16, § 21.2 (1988). Inasmuch as the “state agencies” did not fall within any of these definitions, the PUC concluded that they were not entitled to intervene but could appear as “protestants”. The commission further concluded that the Attorney General’s representation of the “state agencies” before the PUC created an irreconcilable conflict of interest with his duty to represent the PUC before the state courts. The commission there *224 fore ordered that the Attorney General not appear as legal counsel for the “state agencies”. Since that order the commission has indicated that it may rule similarly in other cases in which “state agencies” represented by the Attorney General seek to intervene. It is thus rather plain from the record that the Attorney General has attempted, not to intervene in PUC proceedings himself, 6 but to represent “state agencies” as intervenors. Nevertheless, the Court states the issue as “whether the Attorney General, on behalf of state agencies, has the right to intervene in electric utility rate cases before the Public Utility Commission.” The Court addresses “the Attorney General’s intervention”, not the “state agencies’” intervention. With all due respect, this is simply not the issue presented in this case. B Even if the Attorney General had asserted a constitutional right to intervene in the pending PUC proceedings, I would hold that he has no such right. The powers of the office of Attorney General are limited. The Attorney General may act only if he has constitutional or statutory authority to do so. Day Land & Cattle Co. v. State, 68 Tex. 526 , 4 S.W. 865, 867 (1887). The authority upon which the Attorney General relies in this case is article IV, section 22 of the Texas Constitution, which states in pertinent part: The Attorney General ... shall represent the State in all suits and pleas in the Supreme Court of the State in which the State may be a party, ... and from time to time, in the name of the State, take such action in the courts as may be proper and necessary to prevent any private corporation from exercising any power or demanding or collecting any ... tolls ... not authorized by law. He shall ... give legal advice in writing to the Governor and other executive officers, when requested by them, and perform such other duties as may be required by law. The Court holds that the Attorney General’s intervention in the PUC proceedings is, within the meaning of this provision, an action in the courts necessary to prevent private corporations, i.e., utilities, from demanding or collecting tolls not authorized by law. The only support the Court offers for its conclusion that the Attorney General’s actions before the PUC are the type of actions authorized by this constitutional provision is State v. Southwestern Bell Telephone Co., 526 S.W.2d 526 (Tex.1975). In that case, antedating state regulation of telephone utilities, 7 Bell simply announced an increase in intrastate rates to go into effect a month later. This Court upheld the Attorney General’s constitutional right under article IV, section 22 to sue to enjoin Bell’s collection of such rates upon a showing that they were unreasonable. We did not consider in that case the role of the Attorney General with respect to regulated utilities. The Court does not explain today how applying for administrative approval of rates, as the utilities are doing in the cases now pending before the PUC, is equivalent to “demanding or collecting” unauthorized rates under the constitution. The utilities involved in this case are not collecting unlawful rates; they are seeking approval of rates as required by law. I find nothing in Southwestern Bell that mandates the Attorney General's participation in such proceedings. To attempt to surmount the rather obvious difficulty that the PUC is not a “court”, in which the constitution authorizes the Attorney General to take action, the Court first characterizes ratemaking proceedings as quasi-judicial. The PUC proceedings in which the “state agencies” *225 have attempted to intervene in the instant case involve the setting of future rates. We have previously held, however, again in Southwestern Bell, the single case cited by the Court, that ratemaking is not a judicial act but a legislative act: Of course, the fixing or revision of rates is not a judicial function and under our system of separation of powers the courts do not and cannot regulate rates of public utilities; but the determination of whether rates fixed by the utility are unreasonably high is a judicial function. Id. at 529 . The Court does not address this language. Brushing aside the plain fact that the PUC is not a court but an administrative agency, the Court simply pronounces that “courts” in article IV, section 22 of the Texas Constitution means any adjudicative forum. The Court also argues that if the Attorney General is not allowed to intervene in PUC proceedings, then he cannot appeal the commission’s orders and therefore cannot prevent utilities from charging exorbitant rates. The Court, however, does not explain why the Attorney General’s constitutional mandate is not fully provided for in sections 71 and 72 of PURA, which direct the Attorney General to institute judicial proceedings against utilities and others which fail to comply with the rules and orders of the PUC. Section 43 of PURA forbids a utility from changing its rates except with PUC approval. In short, the Court simply does not show, and I fail to see, how denying the Attorney General leave to intervene in PUC proceedings — it must be remembered that he has not attempted to intervene himself — deprives him of a constitutional right. II The Court assumes, without discussion, the availability of mandamus in this case. Elementarily, mandamus is an extraordinary remedy available only when both of two prerequisites are clearly established. First, relator must show either a clear abuse of discretion or a violation of his clear right. Second, relator must show that there is no other adequate remedy at law. State v. Walker, 679 S.W.2d 484, 485 (Tex.1984); Neville v. Brewster, 352 S.W. 2d 449, 452 (Tex.1961). In my view, neither the Attorney General nor the “state agencies” have demonstrated either of the two prerequisites to mandamus relief in this case. A Under the PUC’s Rules of Practice and Procedure, intervention is permissive, not mandatory. Tex.Admin.Code tit. 16, § 21.41 (1988). Neither the Court nor the Attorney General contends that the PUC must allow any state agency to intervene in any proceeding. Why the PUC’s refusal to allow the “state agencies” to intervene in the proceedings in issue here was a denial of their clear right or a clear abuse of discretion is simply unanswered by the Court. B PURA does not specify whether the PUC’s denial of a petition in intervention is subject to judicial review, and the issue does not appear to have been addressed in Texas. Other jurisdictions have consistently held in administrative law contexts similar to Texas’ that judicial review is allowed of an interlocutory administrative order denying intervention. In Public Service Commission of New York v. Federal Power Commission, 284 F.2d 200, 204 (D.C.Cir.1960), the court held that the FPC’s denial of a request to intervene was an appealable order under the federal administrative law, stating: We think a would-be intervenor is aggrieved, within the meaning of the statute, when his application to intervene is denied. It is true that he is not then aggrieved in the sense that a determination has been made on the merits contrary to his interests. But he most certainly is aggrieved in the sense that his right to represent his interest before the Commission has been finally determined. Accord, Thermal Ecology Must Be Preserved v. Atomic Energy Commission, 433 F.2d 524, 526 (D.C.Cir.1970). In Pennsylvania Dental Ass’n v. Commonwealth In *226 surance Dept., 512 Pa. 217 , 516 A.2d 647, 652 (1986), the court not only held that a denial of intervention in administrative proceedings was appealable, it also held that because such an order was appealable, mandamus was not available to compel the agency to allow intervention. An administrative order denying intervention was also held to be appealable in In re Vermont Public Power Supply Authority, 140 Vt. 424 , 440 A.2d 140 (1982). At least one commentator has urged that such orders be appealable. D. Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 721, 748-751 (1968). The PUC’s order in this case was final as to the “state agencies” which sought to intervene. Although the order permitted them to adduce evidence in the proceedings, it denied them cross-examination and discovery, severely restricting their participation in the proceedings. I would hold that the “state agencies” were not required to await the PUC’s final orders in the proceedings before seeking judicial review. Because they had an adequate remedy at law, they are not entitled to mandamus. Ill The breadth of the Court’s opinion is troubling. Unless PUC proceedings can be distinguished from those of other agencies, the Court in effect holds that the Attorney General is entitled as a matter of constitutional right to intervene in all agency proceedings in which “any private corporation [seeks to exercise] any power or [demands or collects] any ... tolls ... not authorized by law.” This appears to be a most significant increase in the Attorney General’s authority. Moreover, it is unclear to me under what circumstances the Court would now allow a party other than the Attorney General to mandamus an agency in the midst of administrative proceedings. Most troubling to me, and never mentioned by the Court, is whether there is any restriction against the State suing its own agency, or on the Attorney General’s representation of both sides of such a suit. I recognize that we have only recently held in Public Utility Commission v. Cofer, 754 S.W.2d 121 (Tex.1988), that the Attorney General not only can but must represent opposing state agencies in the courts when statutorily mandated to do so, at least absent irremediable conflict in such representation. The holding in that case, however, was expressly premised on clear statutory mandates absent in this case. Even in Cofer , a mandamus proceeding by the PUC against a district court, we did not have a direct action by the State against itself, as we do here. I regret that the anomalous circumstances of Cofer appear to have been extended without careful analysis of the consequences. After today, however, one is left to wonder what other state agencies and officials may sue one another, and how many opposing agencies the Attorney General may represent. The uncertainty as to the consequences of the Court’s opinion is due, in my view, to its failure to focus on the issues in this case. Those issues are, very simply, whether “state agencies” are “persons” entitled to intervene in PUC proceedings, as that term is defined in PURA and APTRA, whether the Attorney General may represent them in such proceedings, and whether mandamus is an appropriate remedy in such a case. In its prior opinion the. Court upheld the PUC’s ruling that the “state agencies” in this case are not “persons” as defined by statute and cannot therefore intervene. I am troubled by this aspect of the Court’s prior opinion and would be inclined to grant the State’s motion for rehearing to reconsider it. Before doing so, however, I would want to consider the propriety of this action and the availability of the relief sought. I do not join in granting the motion for rehearing to recast the issues and decide a case that I respectfully submit is not presented. I therefore dissent from the grant of rehearing in this case. PHILLIPS, C.J., and COOK, J., join in this dissenting opinion. . The Court does not extend the PUC the courtesy usually afforded respondents in mandamus cases of issuing the writ only on the condition *223 that the respondent fails to comply with the Court's directive. . The proceeding involving Central Power and Light Company was designated docket no. 7560; the one involving Houston Lighting and Power Company was designated docket no. 7582. . This was designated docket no. 7635. . The parties have not addressed the differences in the natures of the various entities but have consistently referred to them all as "state agencies”. I therefore do not consider whether each of the entities qualifies as an agency of the State. .There is some doubt whether the Attorney General actually does represent all the “state agencies" he claims to represent in these proceedings. The Railroad Commission, one of the entities listed among the "state agencies”, has advised that it has not authorized the attorney general to represent it in the PUC proceedings involved in this case. . The Attorney General did include himself among the “state agencies” seeking intervention in at least one of the proceedings in issue. In so doing, however, he asserted an interest similar to the other entities — that is, as a consumer of electricity produced by the utility involved in the case. The record does not reflect that the Attorney General ever asserted a constitutional right of intervention in PUC proceedings. . The Public Utility Commission was not created until after the events giving rise to the Southwestern Bell case. 526 S.W.2d at 528 n. 1. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9640460. Public record. Not legal advice.