Summary
holding personal injury action against utility alleging negligence and consumer-protection violations stemming from customer's sustaining electric shock injuries while trimming tree limbs near a power line did not have to begin in the PUC
Summary of this case from Ctr.Point Energy Hous. Elec. v. ColemanOpinion
No. 19-0662
06-25-2021
IN RE ONCOR ELECTRIC DELIVERY COMPANY LLC, Relator
Marnie A. McCormick, Austin, for Amici Curiae El Paso Electric Company, Electric Transmission Texas, LLC, Southwestern Electric Power Company, AEP Texas, Inc., Entergy Texas, Inc. Andrew James Szygenda, Dallas, John C. Stewart, Robert K. Wise, Dallas, Thomas F. Lillard, Dallas, for Relator. Bill Davis, Austin, Ari Cuenin, Kyle D. Hawkins, Houston, Ryan Lee Bangert, Jeffrey C. Mateer, Austin, Atty. Gen. W. Kenneth Paxton Jr., Austin, for Amicus Curiae State of Texas. Sean E. Breen, Austin, Christopher Lavorato, Brian Patrick Lauten, James C. Hatchitt, Austin, for Real Party in Interest. Kyle D. Hawkins, Houston, Bill Davis, Austin, for Other interested party.
Marnie A. McCormick, Austin, for Amici Curiae El Paso Electric Company, Electric Transmission Texas, LLC, Southwestern Electric Power Company, AEP Texas, Inc., Entergy Texas, Inc.
Andrew James Szygenda, Dallas, John C. Stewart, Robert K. Wise, Dallas, Thomas F. Lillard, Dallas, for Relator.
Bill Davis, Austin, Ari Cuenin, Kyle D. Hawkins, Houston, Ryan Lee Bangert, Jeffrey C. Mateer, Austin, Atty. Gen. W. Kenneth Paxton Jr., Austin, for Amicus Curiae State of Texas.
Sean E. Breen, Austin, Christopher Lavorato, Brian Patrick Lauten, James C. Hatchitt, Austin, for Real Party in Interest.
Kyle D. Hawkins, Houston, Bill Davis, Austin, for Other interested party.
Justice Bland delivered the opinion of the Court, in which Justice Lehrmann, Justice Devine, Justice Busby, and Justice Huddle joined. The State regulates public utilities through its right to promote the general health, safety, and welfare of the public. Its regulation acts as a counterweight to public-utility monopolies, ensuring that they charge fair rates and adequately provide vital services. In contrast, the "fundamental purposes of our tort system are to deter wrongful conduct, shift losses to responsible parties, and fairly compensate deserving victims." Regulation is the government's prospective ordering of marketplace conduct; tort lawsuits are retroactive case-by-case correctives.
Tex. Power & Light Co. v. City of Garland , 431 S.W.2d 511, 517 (Tex. 1968).
See Tex. Util. Code § 31.001.
Roberts v. Williamson , 111 S.W.3d 113, 118 (Tex. 2003).
The question presented in this mandamus action is whether an electric utility may compel a plaintiff who alleges a common law personal injury claim to appear before the Public Utility Commission before appearing in court. We conclude it may not unless the claim complains about the utility's rates or its provision of electrical service. The Public Utility Regulatory Act grants the Commission exclusive jurisdiction to regulate a utility's rates, operations, and services. The Commission's jurisdiction extends to customer–utility disputes regarding Commission-regulated activity. This personal injury claim against a utility allegedly arising under duties at common law and consumer-protection statutes, however, is not a regulatory action within the Commission's auspices.
The plaintiff in this case alleges well-settled elements of a negligence claim: a duty of care, breach of that duty, causation, and damages. His allegations do not rely on a utility acting in its regulated capacity, nor on a disruption of or failure to provide electrical service. Negligence alleged in a context merely coincidental to utility activities does not create Commission jurisdiction.
In re Tex.-N.M. Power , ––– S.W.3d ––––, 2021 WL 2603683 (Tex. 2021) (orig. proceeding).
The Commission's regulations, like many state regulations, may inform liability and defenses under the common law. Utility regulations have done so for decades. Nothing in the Act suggests, however, that the Legislature moved the adjudication of personal injury cases that do not arise from the failure to provide electrical service before the Commission, absent any issue within the Commission's jurisdiction that it may remedy. The last forty-five years under the Act indicate otherwise. Accordingly, we deny relief.
I
Relator Oncor Electric Delivery Company provides electrical service to a house owned in part by Stacey Taylor in Graham, Texas. Oncor provides service to the house next door via a drop line that crosses Taylor's property. Concerned that trees obstructing the drop line posed a hazard, Taylor requested that Oncor trim the trees or move its line. Taylor claims Oncor responded that the trees were Taylor's responsibility. Taylor ultimately undertook to trim the trees himself using a boom lift. While trimming them, Taylor alleges that he contacted an overhead high-voltage line and sustained electric shock injuries.
Contrary to the assertion in the dissent, Taylor does not allege that the trees interfered with his electrical service, only that the neighbors complained of service disruptions. Post at –––– – ––––. In the two instances where Taylor's petition asserts that the Taylors and the neighbors both "were suffering serious problems," the petition does not specify problems with electrical service. Instead, the general statement about "serious problems" is followed by a reference to the danger posed by falling and breaking branches "causing serious issues to the neighbor's service line." We cannot infer from the petition that Taylor experienced electrical service interruptions.
Taylor sued Oncor for negligence and consumer-protection violations, among other claims. Oncor moved for summary judgment, contending that it has no liability to Taylor because he violated Health and Safety Code Chapter 752, which requires those who work near high-voltage power lines to arrange to de-energize the lines before beginning work. While Oncor's summary-judgment motion was pending, it filed a jurisdictional plea, asking the trial court to abate the case to require Taylor "to exhaust his administrative remedies" before the Commission. The trial court denied Oncor's plea. The court of appeals denied Oncor's petition for writ of mandamus, and Oncor sought relief in this Court.
According to Oncor, the Public Utility Commission must decide whether Oncor had a duty to trim the trees or relocate the drop line, because such a decision involves Oncor's operations and services. Taylor responds that common law tort claims for personal injury damages fall outside the Commission's exclusive jurisdiction. He observes that the Act's purpose does not extend so far, and the long-standing exercise of jurisdiction over these claims by Texas courts in the decades since the Act became law confirms that limitation.
II
We grant mandamus relief to correct a trial court's abuse of discretion when an appeal from a final judgment is an inadequate remedy. In particular, we have granted mandamus relief to halt trial court proceedings that run counter to an administrative agency's exclusive jurisdiction. Thus, we must decide in this case whether the trial court had jurisdiction to proceed with Taylor's suit or instead should have abated the case to allow the Commission to exercise its jurisdiction in the first instance.
In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (citing Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) ).
In re Sw. Bell Tel. Co. , 235 S.W.3d 619, 621, 627 (Tex. 2007) (orig. proceeding).
A district court has subject-matter jurisdiction to resolve disputes unless the Legislature divests it of that jurisdiction. Because we presume that a district court has subject-matter jurisdiction, the burden to demonstrate that exclusive jurisdiction rests with an administrative agency falls on the party resisting the district court's jurisdiction. Agencies do not share the jurisdictional presumption of district courts; they exercise only powers conferred in clear and express statutory language.
In re Entergy Corp. , 142 S.W.3d 316, 322 (Tex. 2004) (orig. proceeding) (citing Tex. Const. art. V, § 8 ); see Cameron Appraisal Dist. v. Rourk , 194 S.W.3d 501, 502 (Tex. 2006) (per curiam) ("The Texas Constitution expressly allows the Legislature to bestow exclusive original jurisdiction on administrative bodies.").
See Entergy Corp. , 142 S.W.3d at 322 (observing that we do not presume such jurisdiction, as agencies "may exercise only those powers the law confers upon them in clear and express statutory language and those reasonably necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the agency").
Id.
Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 220 (Tex. 2002).
Interpretation of the Public Utility Regulatory Act's grant of jurisdiction begins, as it must, with the plain meaning of the enacted text considered in light of the statute as a whole. The Legislature has granted the Commission "the general power to regulate and supervise the business of each public utility." Regarding electric utilities specifically, the Legislature has declared that its purpose "is to establish a comprehensive and adequate regulatory system for electric utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the electric utilities." To achieve this purpose, the Commission has "exclusive original jurisdiction over the rates, operations, and services of an electric utility" in some geographic areas and "exclusive appellate jurisdiction" in others—namely, where municipalities exercise "exclusive original jurisdiction over the rates, operations, and services of an electric utility in areas in the municipality."
KMS Retail Rowlett, LP v. City of Rowlett , 593 S.W.3d 175, 183 (Tex. 2019).
Tex. Util. Code § 14.001.
Id. § 31.001(a) (emphasis added).
Id. §§ 32.001, 33.001(a).
The parties gloss over the division of jurisdiction between cities and the Commission. Oncor states that "the PUC has the ultimate authority over electric-utility rates, operations, and services and this Brief, for simplicity, will refer only to the PUC's exclusive jurisdiction." Taylor observes that the original 1975 version of the Act refers to the " ‘governing body of each municipality,’ for reasons that are not relevant to the legal issues in this proceeding."
Contrary to the parties’ assertions, the exclusive-jurisdiction connection between the Commission and cities reveals its limited scope. As enacted in 1975, the Act's jurisdictional grant makes plain that the Commission's "exclusive original jurisdiction" has the same regulatory purpose, with the same limits, as the jurisdiction granted to cities. The distinction between the two is merely geographic:
Sec. 17 (a) Subject to the limitations imposed in this Act, and for the purpose of regulating rates and services so that such rates may be fair, just, and reasonable, and the services adequate and efficient, the governing body of each municipality shall have exclusive original jurisdiction over all electric, water, and sewer utility rates, operations, and services provided by an electric, water, and sewer utility within its city or town limits.
(b) At any time after two years have passed from the date this Act becomes effective, a municipality may elect to have the commission exercise exclusive original jurisdiction over electric, water, or sewer utility rates, operations, and services within the incorporated limits of the municipality.
....
(d) The commission shall have exclusive appellate jurisdiction to review orders or ordinances of such municipalities as provided in this Act.
(e) The commission shall have exclusive original jurisdiction over electric, water, and sewer utility rates, operations, and services not within the incorporated limits of a municipality exercising exclusive original jurisdiction over those rates, operations, and services as provided in this Act.
Public Utility Regulatory Act, 64th Leg., R.S., ch. 721, sec. 17, 1975 Tex. Gen. Laws 2327, 2334–35 (codified at Tex. Rev. Civ. Stat. art. 1446c, § 17 ) (emphases added).
Reading Section 17 as enacted, the Legislature's design is clear. Municipalities have original jurisdiction to regulate utilities within their territories and can surrender this authority to the Commission if they choose. The Commission, in contrast, has original jurisdiction in unincorporated areas. Each grant of jurisdiction is similarly limited, however, by the objective the Legislature ascribes to the Act at the beginning: "for the purpose of regulating rates and services so that such rates may be fair, just, and reasonable, and the services adequate and efficient."
Id. at sec. 17(a) (emphasis added).
The putatively non-substantive 1997 codification of the Act sundered and reordered Section 17 into stand-alone sections 32.001 and 33.001 of the Utility Code. Nonetheless, the Legislature's original guiding purpose for granting jurisdiction lives on in section 33.001(a), which grants exclusive jurisdiction to municipalities "[t]o provide fair, just, and reasonable rates and adequate and efficient services," limiting language now absent from its counterpart in section 32.001(a). By shearing the section granting jurisdiction to the Commission from the section granting it to municipalities, and by somewhat diluting the limitation "for the purpose of regulating rates and services ," the codifier—not the Legislature—is responsible for the misleadingly broad language in section 32.001(a).
See 1 Texas Legislative Council , Utilities Code , Revisor's Report 118–19, 128–29 (1997) (dividing section 2.101 of article 1446c-0 into separate sections of the Utilities Code); see also id. at ii ("This is a nonsubstantive revision. The staff's authority does not include improving the substance of law. The sole purpose of this project was to compile all the relevant law, arrange it in a logical fashion, and rewrite it without altering its meaning or legal effect.").
Statutory interpretation relies on the context and framework of an entire statute, not just on the definitions of words in isolation. That framework is no less instructive after it inadvertently has been dismantled. "Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes."
E.g., Worsdale v. City of Killeen , 578 S.W.3d 57, 69 (Tex. 2019).
Id. (quoting Felix Frankfurter, Some Reflections on the Reading of Statutes , 47 Colum. L. Rev. 527, 539 (1947)).
As the Act expressly states, the Commission's purpose is regulatory. The Act's purposive statement that the Commission is a regulatory body provides an outer limit to the Commission's exclusive jurisdiction. This limit equally informs the Commission's jurisdiction to adjudicate disputes between "affected persons" and utilities, as granted in section 15.051 of the Utilities Code :
An affected person may complain to the regulatory authority in writing setting forth an act or omission by a public utility in violation or claimed violation of
a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority.
As relevant here, the Code defines "affected persons" as persons "whose utility service or rates are affected by a proceeding before a regulatory authority." The Commission's jurisdiction to administer laws is only as extensive as its jurisdiction to regulate—that is, it is limited to the charging of rates and provision of electricity. The Commission does not have "jurisdiction to administer" any law if it does not implicate ratemaking or the provision of electricity.
Id. § 11.003(1)(B).
III
Limiting the Commission's jurisdiction to adjudications that implicate regulatory matters comports with the common law, our precedent, and the Commission's assessment of its jurisdiction.
The right to bring a claim that seeks redress for a physical injury traces back to the origin of the common law. It is not a regulatory cause of action dependent upon Commission enforcement. Our Texas Constitution enshrines this common law right in the open courts provision: "All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." The Legislature thus must not abrogate a common law right "unless the reason for its action outweighs the litigants’ constitutional right of redress." As we explained in Oncor Electric Delivery Co. v. Chaparral Energy , the Texas Constitution also protects the right to have a jury resolve fact questions in actions analogous to those tried by jury in 1876. We will not presume that the Legislature abrogated this right absent the Legislature's clear repudiation of the common law.
Tex. Dep't of Pub. Safety v. Cox Tex. Newspapers, L.P. , 343 S.W.3d 112, 115 (Tex. 2011) (naming an individual's right to be free from physical harm as "a hallmark of our common law").
Tex. Const. art. I, § 13.
Oncor Elec. Delivery Co. LLC v. Chaparral Energy, LLC , 546 S.W.3d 133, 143 (Tex. 2018) (quoting Trinity River Auth. v. URS Consultants, Inc. , 889 S.W.2d 259, 261 (Tex. 1994) ).
Id. at 144.
See Waffle House, Inc. v. Williams , 313 S.W.3d 796, 802 (Tex. 2010) ("[A]brogation of common-law claims is disfavored. However, we will construe the enactment of a statutory cause of action as abrogating a common-law claim if there exists ‘a clear repugnance’ between the two causes of action." (quoting Cash Am. Int'l Inc. v. Bennett , 35 S.W.3d 12, 16 (Tex. 2000) )).
The Legislature's grant of jurisdiction to the Commission over the regulation of rates, operations, and services suits the Legislature's expressly identified purposes. Exclusive regulatory jurisdiction promotes uniformity, checks the utilities’ monopoly power, and harnesses the Commission's "unique expertise." Jurisdiction over every dispute involving a utility does not serve the same ends. Though a utility's exercise of its monopoly power becomes all-important in the context of setting rates or requiring adequate service, it is decidedly less so in the context of a personal injury claim that does not arise from that service. The question in such cases is not whether the customer–utility relationship is fair or just, but whether a utility's negligence has caused physical harm in a particular instance. The Legislature's decision to regulate an issue is not coextensive with a wholesale disruption of the adjudication of private disputes touching on that issue. While regulations may inform liability under the common law, they do not inherently create private rights of action or adjudicatory forums. We will not impart such authority in the absence of the Legislature's clear instruction.
Chaparral , 546 S.W.3d at 142.
Compare, for example, Randol Mill Pharmacy v. Miller , 465 S.W.3d 612, 622 (Tex. 2015), in which we observed that the Texas State Board of Pharmacy's regulation of compounding preparations informs the duty of care owed by a pharmacy to its patients, with U-Haul International v. Waldrip , 380 S.W.3d 118, 139 (Tex. 2012), in which we observed that the "mere existence of federal regulations does not establish the standard of care or establish gross negligence per se."
E.g., Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 220 (Tex. 2002) ("[T]here is no presumption that administrative agencies are authorized to resolve disputes.").
That "jury awards can have an effect akin to regulation," post at –––– (quoting Moore v. Brunswick Bowling & Billiards Corp. , 889 S.W.2d 246, 249 (Tex. 1994) ), is not a reason to presume that the Legislature intended for the Commission to pass judgment on common law duties in common law cases. Regulation-by-jury is not avoided even in the dissent's formulation—it is merely delayed. Post at –––– (endorsing the hybrid claims-resolution process).
The Commission's regulatory expertise thus does not extend to every possible interaction between a utility and the public. We recognize this limitation in the cases we decide today, but our recognition of the Act's jurisdictional limits is not new. In the forty-five years since its enactment, our precedent and that of the lower courts considering tort claims against utilities align with the Act's limited grant of jurisdiction for regulatory purposes. As early as 1979, a utility attempting to redirect a deceptive trade practices claim to the Commission was simply informed "[w]e have neither been shown, nor can we find any statute ousting courts of jurisdiction." We acknowledged the Commission's "exclusive jurisdiction to regulate utility rates, operations, and services" in Southwestern Electric Power Co. v. Grant , but we did not dismiss or abate that case for lack of jurisdiction. Rather, we exercised our jurisdiction and decided the case by applying a governing tariff.
Sw. Bell Tel. Co. v. Nash , 586 S.W.2d 647, 650 (Tex. App.—Austin 1979, no writ) ; see Sw. Bell Tel. Co. v. Reeves , 578 S.W.2d 795, 798 (Tex. App.—Houston [1st Dist.] 1979, writ ref'd n r.e.) ("While the Legislature has conferred exclusive original jurisdiction upon the Public Utilities Commission over the business and property of all telecommunications utilities in this state for the purpose of Regulating ‘rates, operations, and services’, we hold that jurisdiction over this tort claim against a telephone company has not been thus removed from the courts."), disapproved of on other grounds by Hous. Lighting & Power Co. v. Auchan USA, Inc. , 995 S.W.2d 668, 671 (Tex. 1999). Oncor claims that Nash , Reeves , and other preChaparral cases rejecting exclusive jurisdiction over tort claims are distinguishable because they predate the approval of hybrid claims resolution in David McDavid Nissan , 84 S.W.3d 212. Nash and Reeves focus on the Commission's inability to resolve these claims, however, and the existence of hybrid claims resolution does not expand the limits of the Commission's jurisdiction.
73 S.W.3d 211, 216 (Tex. 2002).
Id. at 219–22.
In Grant , the plaintiff sustained an electric shock after her house began receiving fluctuating voltage. The plaintiff alleged that the utility company should have disconnected her service when it learned about the fluctuating voltage, but the company disclaimed liability caused by the fluctuations, pointing to a regulation adopted from its tariff. We granted the electric company's petition to assess whether such a limitation on liability was reasonable—we did not send the case to the Commission. Likewise, in DeWitt County Electrical Co-operative, Inc. v. Parks , we upheld a directed verdict based on an easement's incorporation of the utility's tariff. We did not insist that the parties first seek the Commission's interpretation of the easement agreement. Finally, in Traxler v. Entergy Gulf States, Inc. , we interpreted the meaning of "transmission line" in Utilities Code section 181.045 to conclude that the plaintiff could assert a negligence claim based on the utility's failure to comply with height requirements and representations regarding Health and Safety Code Chapter 752; we did not require the plaintiff to first seek tariff-based relief before the Commission.
Id. at 214.
Id.
Id. at 215.
1 S.W.3d 96, 102–03 (Tex. 1999).
376 S.W.3d 742, 751 (Tex. 2012) (holding that utility's violation of overhead line requirement and representation at construction meeting that employer need not call to de-energize line provided basis for common law negligence claim).
Oncor counters that our more recent decision in Chaparral Energy supports its position that the Commission's exclusive jurisdiction extends to Taylor's claims. The dissent adopts this view. In Chaparral , the dispute centered on the utility's failure to timely provide electrical service—that is, the very activity the Commission regulates. The plaintiff directly linked its claim to the utility's regulatory obligation to provide electricity, a claim that only a utility's customer could bring. In other words, the plaintiff in Chaparral sought regulatory enforcement of the utility's tariff through a breach-of-contract suit.
546 S.W.3d 133 (Tex. 2018).
Id. at 136–37. The customer measured its damages in Chaparral as the cost of renting and fueling generators to provide electricity to its wells. Id. at 137.
See Tex. Util. Code § 33.001(a). As we note today in Texas-New Mexico Power , limitations of liability in a tariff do not necessarily "transform Plaintiffs’ complaint into one about [the utility]’s operations or services as a utility." In re Tex.-N.M. Power Co. , ––– S.W.3d ––––, 2021 WL 2603683 (Tex. 2021) (orig. proceeding).
In contrast, Taylor's suit alleging inaction and representations about tree-trimming does not complain about his electrical service or Oncor's rates. Taylor's claim could just as plausibly be brought by a non-customer who contacted a high-voltage power line, like the plaintiff in Traxler. While the provision of electricity service (and its timeliness) falls squarely in the regulatory sphere, a duty alleged against an occupier of the premises does not. The customer's damages in Chaparral arose because the customer had no power to its wells and had to rent generators—i.e., it did not have electrical service. Unlike the customer in Chaparral , Taylor does not allege damages arising from the provision of his electrical service—lights on or off—but from Oncor's alleged representations about, and duty to maintain, the premises that it occupied.
The Health and Safety Code provision on which Oncor relies as a defense is also not linked to its failure to provide electrical service or to a pre-existing customer–utility relationship. Chapter 752's obligation to notify a utility of upcoming work near a high-voltage power line is not tariff-based; the statute imposes this duty on nearly everyone working near a high-voltage line, not solely on a utility's customers. Similarly, Taylor invokes common law and statutory duties that do not depend on his status as a utility customer. The alleged duty that Taylor has pleaded (to trim trees) arises in contexts apart from the provision of electrical service: as an owner or occupier of land, for example. And, in Traxler , we examined allegations like Taylor's, about whether a utility's statements or omissions excused compliance with Chapter 752.
Tex. Health & Safety Code §§ 752.003 –.008 (requiring a "person, firm, corporation, or association" working near a high-voltage overhead line to notify the line operator or be liable for any resulting damages); see Trail v. Friedrich , 77 S.W.3d 508, 513–14 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that plaintiff who violates Chapter 752 cannot recover from line owner because, under section 752.008, plaintiff must indemnify line owner for plaintiff's own damages); Chavez v. City of San Antonio ex rel. City Pub. Serv. Bd. , 21 S.W.3d 435, 439–40 (Tex. App.—San Antonio 2000, pet. denied) (same).
The dissent adds "[found in the tariff]" to describe the alleged duty in this case, but the petition alleges premises liability based on Oncor's duty as an occupier of the land. Post at –––– n.71.
See DeWitt Cnty. Elec. Coop., Inc. v. Parks , 1 S.W.3d 96, 102–03 (Tex. 1999) (holding that easement gave electric utility right to remove and trim trees and that utility had no common law duty to refrain from tree trimming where easement governed).
See Traxler v. Entergy Gulf States, Inc. , 376 S.W.3d 742, 751–52 (Tex. 2012) (concluding that utility company could be liable as a result of "encourag[ing] criminal noncompliance with Chapter 752").
Oncor suggests that Taylor must "exhaust his administrative remedies," but Oncor concedes that none apply to Taylor's claims. Instead, it seeks undefined partial rulings on subsidiary questions of a duty alleged to arise under the common law or the consumer-protection statute. The Commission has no authority to afford the kind of remedy that Taylor seeks: recompense for personal injuries. While the lack of a remedy alone is not dispositive of the jurisdictional question, if the plaintiff's allegations do not invoke an administrative remedy or assert an administrative claim, the suit is less likely to fall within the Commission's "regulatory system."
The Commission has the authority to impose administrative penalties, order disgorgement of excess revenues, and issue cease-and-desist orders against hazardous conduct. Tex. Util. Code §§ 15.023(a), (e), 15.104. Taylor has not pleaded for any of this relief.
See id. § 15.023(a) (granting the Commission the authority to impose administrative penalties); id. § 15.104 (granting the Commission the authority to issue cease-and-desist orders to persons engaging in hazardous or injurious conduct).
In Chaparral , we noted that a claimant must exhaust administrative remedies to obtain the agency's decision on issues that fall within the agency's exclusive jurisdiction before filing suit and that Chaparral sought "additional damages recoverable pursuant to Oncor's Tariff." 546 S.W.3d 133, 142–43 (Tex. 2018). In contrast, Oncor concedes that Taylor does not seek relief that either the Commission or the tariff affords.
Consistent with the text and our precedent, the Commission itself disclaims the general authority to make common law determinations or to adjudicate contract claims and torts, even when its orders "might inform a court on aspects of claims within the court's jurisdiction." Because the Commission says it "does not have jurisdiction to adjudicate private tort or contractual disputes between parties," it has correctly refused to address common law questions—such as whether actions constitute negligence. As it recognized after our decision in Chaparral , the Commission "is limited to making determinations regarding applicable law, its rules, and the tariff ‘as a regulatory matter.’ "
Tex. Pub. Util. Comm'n, Order at 2, Complaint of Giovanni Homes Corp. Against Oncor Elec. Delivery Co. , Docket No. 45854 (July 18 2019), 2019 WL 3642716 ("The Commission does not have jurisdiction to make—and does not make—common-law determinations."); Tex. Pub. Util. Comm'n, Amended Preliminary Order at 12, Complaint of Vinson Against Oncor Elec. Delivery Co. , Docket No. 40953 (May 21, 2013) ("The Commission has repeatedly stated that it does not have statutory authority to generally adjudicate contract claims and torts or award damages." (footnotes omitted)); see Tex. Pub. Util. Comm'n, Draft Preliminary Order at 6, Complaint of Chad Swahn Against Shady Oaks Water Supply Co., LLC , Docket No. 50367 (June 23 2020), 2020 WL 3499232 ("The Legislature has not conferred on the Commission any general authority to preside over tort actions.").
Tex. Pub. Util. Comm'n, Preliminary Order at 3, Complaint of Freedom Grp. LLC Against CenterPoint Energy Hous. Elec., LLC , Docket No. 33052 (Dec. 15 2006), 2006 WL 3716004 (refusing to adjudicate whether CenterPoint's delay in processing disconnect-for-no-payment orders constituted negligence or breach of contract).
Tex. Pub. Util. Comm'n, Order at 1–3, Complaint of Giovanni Homes Corp. Against Oncor Elec. Delivery Co. , Docket No. 45854 (July 18 2019), 2019 WL 3642716 (quoting City of Houston v. CenterPoint Energy Hous. Elec. LLC , No. 01-11-00885-CV, 2012 WL 6644982, at *7 (Tex. App.—Houston [1st Dist.] Dec. 20, 2012, no pet.) (mem. op.) (refusing to endorse ALJ's findings of fact and conclusions of law regarding contract formation and breach of contract)).
Oncor raises the concern that courts will interpret its tariff inconsistently. Any inconsistency that results from courts incorrectly applying a tariff-based defense—a task Texas courts have performed for decades—is remediable through the appellate process. Far less consistent is the notion that agency jurisdiction for personal injury claims turns on whether the injured plaintiff happens to be a utility customer or other "affected person." The Legislature has not commanded this disparate result.
See, e.g., Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 222–23 (Tex. 2002) ; DeWitt Cnty. Elec. Coop., Inc. v. Parks , 1 S.W.3d 96, 102–03 (Tex. 1999) ; see also Sw. Bell Tel. Co. v. Nash , 586 S.W.2d 647, 649–50 (Tex. App.—Austin 1979, no writ) ; Sw. Bell Tel. Co. v. Reeves , 578 S.W.2d 795, 798 (Tex. App.—Houston [1st Dist.] 1979, writ ref'd n r.e.), disapproved of on other grounds by Hous. Lighting & Power Co. v. Auchan USA, Inc. , 995 S.W.2d 668 (Tex. 1999).
The Legislature limits the Commission's complaint process to those "whose utility service or rates are affected." Tex. Util. Code § 15.051(a) ("An affected person may complain to the regulatory authority...."); id. § 11.003(1) (" ‘Affected person’ means ... a person whose utility service or rates are affected by a proceeding before a regulatory authority.").
Filling the Commission's docket with personal injury cases not linked to regulatory enforcement would unnecessarily delay their adjudication in an elusive effort to obtain rulings on issues that would not resolve the case or even an element of a particular claim. Such delay is exaggerated for plaintiffs who reside in an area in which a municipality retains its exclusive jurisdiction under section 33.001. Absent legislative directive, we decline to consign those plaintiffs to filing first with their municipality, then appealing to the Commission, and only then permitting an ordinary personal injury case to proceed in court.
IV
Informed by the purposive language that now resides in section 33.001(a), we hold that the Commission's regulatory jurisdiction does not extend to Taylor's claims. Even if Taylor is the kind of "affected person" who may bring a claim to the Commission, he has not brought the kind of claim that the Commission can adjudicate. Taylor's claim alleges premises liability and deceptive trade practices because Oncor was negligent in placing its utility line, failing to trim trees, telling Taylor that the tree-trimming was his responsibility, and failing to warn Taylor of the dangers of tree-trimming. None of Oncor's alleged wrongdoing has to do with its rates or the adequate and efficient provision of electrical services. Oncor's tariff, as incorporated into regulations that govern a utility's conduct, may inform whether a utility is liable to those who are injured in a utility easement or by contact with a power line, as it did in Traxler. It may provide a defense to liability, which the trial court must consider, as we did in Grant. Oncor has presented these issues to the trial court in requesting summary judgment, arguing that it has no legal duty to Taylor. A regulatory standard or defense, however, does not drag this tree-trimming suit before the Commission, which concededly has no role in adjudicating a utility's liability for a personal injury claim in these circumstances.
Traxler v. Entergy Gulf States, Inc. , 376 S.W.3d 742, 751–52 (Tex. 2012).
See Grant , 73 S.W.3d at 222–23 (affirming trial court's grant of summary judgment because utility's tariff limited liability for personal injury).
In determining that the trial court has jurisdiction to adjudicate this dispute, we express no opinion about the merit of Taylor's claims.
Much as a federal question presented as a defense does not create federal jurisdiction, Oncor's defense that its tariff might limit its liability does not create Commission jurisdiction. Taylor's petition does not refer to Oncor's tariff, nor to any violations of it. He does not complain of unfair rates, nor of Oncor's wholesale failure to timely provide electric service, as in Chaparral. On the face of his petition, Taylor does not invoke the Commission's regulatory jurisdiction.
Cf. Louisville & Nashville R.R. Co. v. Mottley , 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908).
* * *
The Legislature does not abrogate the common law in silence. The Public Utility Regulatory Act authorizes the Commission to form a "regulatory system" for utilities and their customers, not to adjudicate individual claims for physical harm that arise from a duty independent of utility regulation. Accordingly, the Commission lacks exclusive jurisdiction to decide Taylor's claim. Because the trial court properly denied Oncor's jurisdictional plea, we deny relief.
See Abutahoun v. Dow Chem. Co. , 463 S.W.3d 42, 51 (Tex. 2015) ("[S]tatutes can modify or abrogate common law rules, but only when that was what the Legislature clearly intended.").
Chief Justice Hecht filed a dissenting opinion, in which Justice Boyd and Justice Blacklock joined.
Chief Justice Hecht, joined by Justice Boyd and Justice Blacklock, dissenting.
The Public Utility Regulatory Act (PURA) gives the Public Utility Commission (PUC) "exclusive original jurisdiction over the rates, operations, and services of an electric utility". Just three years ago, in Oncor Electric Delivery Co. v. Chaparral Energy, LLC , this Court unanimously held that when an electric utility is sued for damages for breach of contract for "failing to timely provide electricity services" the PUC has exclusive jurisdiction to determine, as a matter of law, what service was required. Today, in another Oncor case as it happens, the Court holds that when an electric utility is sued for damages for negligence in "continuing the placement of [its] service line ... through trees" the PUC has no jurisdiction whatever to determine, as a matter of law, what service was required. When an electric utility should run power lines—the issue in Chaparral Energy —and where it should run power lines—the issue in the present case—both directly involve the utility's operations and services under PURA. There is no material difference between when and where. The question in both Chaparral Energy and this case is the same: when an electric utility is sued over its operations and for breach of its legal duty to provide services, does the court or the PUC determine in the first instance what that duty is? In Chaparral Energy , the Court held that the electric utility's legal duty to its customer could only be determined by the PUC, not by the courts. In this case, the Court holds that the electric utility's legal duty to its customer cannot be determined by the PUC but must be determined by the courts.
Tex. Util. Code § 32.001(a). PURA does not allow the PUC to regulate municipally owned or regulated utilities. Id. § 32.002.
546 S.W.3d 133, 136, 141 (Tex. 2018).
Plaintiff's Second Amended Petition 12.
The Court should either follow Chaparral Energy or overrule it. But an errant departure from indistinguishable precedent is not the most serious fault in today's decision. Its premise, expressed throughout, is that personal-injury lawsuits are virtually irrelevant to utility regulation. That has not been the Court's position. We recognized many years ago that "jury awards can have an effect akin to regulation." We cited the U.S. Supreme Court's acknowledgment that "regulation can be as effectively exerted through an award of damages as through some form of preventive relief", such as direct, administrative regulation. "The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." The Legislature intended that "PURA would comprehend all or virtually all pertinent considerations involving electric utilities operating in Texas" in order "to protect the public interest". In this case the Court gives judges, juries, and damages awards a role in electric-utility regulation that the Legislature has given exclusively to the PUC.
Moore v. Brunswick Bowling & Billiards Corp. , 889 S.W.2d 246, 249 (Tex. 1994).
San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
Id.
In re Entergy Corp. , 142 S.W.3d 316, 323 (Tex. 2004).
I respectfully dissent.
I
A
The Court dismissively characterizes this case as a "tree-trimming suit" having nothing to do with Oncor's operations and services. That characterization cannot be squared with plaintiff James Stacey Taylor's pleadings.
"Oncor provided electricity to the neighborhood" in which Taylor and his brother owned a rental house. "Oncor ran a main high-voltage power line ... to a utility pole at the corner of the Taylors’ property". "Oncor then ran electricity" to both the Taylors’ house and the house behind it "using service lines off the main high voltage line." "The service line to [the Taylors’ house] runs a short distance from the pole to the house." The service line to the neighbors’ house "runs from the same utility pole through trees and across the Taylors’ property". "Both the main high-voltage line and the neighbor's service line ran through the overgrown trees that were located on the Taylor property." "Over time, trees located in Oncor's right-of-way grew up, into, and all around the main high-voltage line, the secondary power line, and the neighbors’ service line, causing the neighbors to complain that the overgrown trees were creating power outages in their service." "[T]he Taylors and their neighbors were suffering serious problems because the trees were growing up, into, and around both the main high-voltage power line, secondary power line, and the neighbors’ service line." Taylor repeatedly called Oncor to "move the neighbors’ service line off the Taylor property." "Oncor had control of the service line and the trees that interfered with it, and it was necessary and feasible to properly maintain the trees and/or move the service line." "Oncor finally did that very thing ...—moved the service line—after yet another incident where the trees damaged the neighbors’ service line and almost caused a fire at the neighbors’ house." But that was only after Taylor trimmed the trees himself and, in doing so, came too close to the high-voltage line and was electrocuted.
Plaintiff's Second Amended Petition 3.
Id. at 3–4.
Id. at 4.
Id.
Id.
Id. at 6.
Id. at 1.
Id. at 7. Contrary to the Court's assertion, ante at –––– n.6, Taylor explicitly alleges that both he and his neighbors were "suffering serious problems" with their electrical service, the neighbors because of the trees near their service line, and both Taylor and the neighbors because of the trees near the main line that serviced them both.
Plaintiff's Second Amended Petition 10.
Id. at 11.
Id. at 11–12.
A person is statutorily prohibited from working within specified distances of a high-voltage overhead line without notifying "the operator of the line at least 48 hours before the work begins", Tex. Health & Safety Code § 752.003(a) ; "negotiat[ing] a satisfactory mutual arrangement to provide temporary de-energization and grounding" or other safety measures, id. § 752.003(b) ; and "pay[ing] the operator of the high voltage overhead line the actual expense incurred" in making the arrangements, id. § 752.003(c). A violation is a Class B misdemeanor, id. § 752.007; Tex. Penal Code § 12.41(2), and renders the violator liable to the operator for all liability it incurs as a result, Tex. Health & Safety Code § 752.008. Taylor admits that he violated these provisions but argues that he is excused because Oncor "forced" him to cut his trees and did not inform him of his statutory obligations.
Taylor asserts that "Oncor was negligent in the placement of and/or continuing the placement of the service line that ran across the Taylor property, through trees, to the neighbor" and "should have moved [it] when asked". "Oncor," his pleadings continue, "had a non-delegable duty to exercise ordinary care and properly maintain its power lines yet refused to do so". Taylor asserts negligence, premises liability, misrepresentations by Oncor that trimming the trees was not its responsibility, but his, and violations of the Deceptive Trade Practices Act.
Plaintiff's Second Amended Petition 12.
Id. at 13.
Tex. Bus. & Com. Code §§ 17.41 –17.63.
Taylor's claims are not merely about "tree-trimming". They have nothing to do with aesthetics. Nor do they complain of an injury unrelated to electric service, like a passerby hit by a falling limb. Taylor's complaint is not that the trees were unattractive or unhealthy or that they might fall on him or someone else. Taylor's complaint is that by running its lines through the trees and not moving them, Oncor threatened the continued, safe, dependable electric service to his house and his neighbors’. The Court acknowledges that Taylor alleges "Oncor was negligent in placing its utility line" yet denies that his allegation involves Oncor's operations and services. Taylor repeatedly asserts that trimming the trees was one solution but that another was moving the lines out from among the limbs. Anyone could trim the trees. Only Oncor could move its lines. They were essential to providing electric service to the Taylors and their neighbors. One may argue that some of Taylor's claims are not so closely tied to Oncor's services, such as his allegations of misrepresentations and DTPA violations. But his claim that trees interfered with the power lines and had to be trimmed or the lines moved, whether asserted as negligence or premises liability, is firmly based on Oncor's provision of electric service to the property. Determining the duty Oncor owed Taylor was therefore within the PUC's exclusive original jurisdiction, as Oncor argued in its plea to the jurisdiction.
Ante at ––––.
B
In Chaparral Energy , Chaparral alleged the following. Oncor agreed, at Chaparral's request, to "provide electricity to two wells Chaparral had recently drilled". Oncor had to "construct new facilities to deliver electricity from its existing facilities to a ‘tie-in’ point from which Chaparral could construct facilities to transmit the electricity to the wells." Oncor represented that "it could complete its work within about ninety days, possibly even sooner." The parties’ Service Agreement "provided that ‘the start date of this project [would] be no earlier than two weeks preceding the execution of this agreement’ and that Oncor would provide a ‘more definitive installation schedule’ ", but Oncor never did. "Several weeks later, when Chaparral inquired about the project's status, Oncor explained that it was having difficulty obtaining easements it needed to construct the new facilities across privately owned land." But "Oncor did not even attempt to obtain all of the necessary easements until several months later." Once it had acquired the easements, "Oncor then finished constructing the new facilities in two days. Meanwhile, Chaparral allegedly spent over $300,000 to rent generators and purchase diesel fuel to provide the necessary power to the wells." Chaparral asserted that Oncor breached its contract and "did not cooperate in good faith to fulfill its duties and obligations" or "act in a manner consistent with good business practices, reliability, safety, and expedition". Chaparral sought as damages the expenses for generators and fuel it incurred in supplying electricity to its wells while waiting for Oncor to connect them to its power lines. The jury found for Chaparral. On appeal, Oncor "moved to dismiss Chaparral's claim for want of jurisdiction, arguing for the first time that the PUC ha[d] exclusive jurisdiction to resolve Chaparral's allegations."
Oncor Elec. Delivery Co. v. Chaparral Energy, LLC , 546 S.W.3d 133, 136 (Tex. 2018).
Id.
Id.
Id. at 136–137.
Id. at 137.
Id.
Id.
Id.
Id.
This Court agreed: "[B]ecause Chaparral's breach-of-contract claim in this case complains of Oncor's services, we conclude that the scope of the PUC's exclusive jurisdiction encompasses that claim." While the PUC could not award Chaparral damages, that did not deprive the agency of all jurisdiction. Chaparral, the Court explained, could seek damages "in the district court after the PUC has exercised its exclusive jurisdiction" to determine Oncor's legal duty to Chaparral. Those issues involved the applicability of Oncor's regulatory tariff to Chaparral's breach-of-contract claim, a matter squarely within the PUC's authority. The Court had "described this two-step process"—of going first to the PUC, then to court—"in David McDavid Nissan ". "Under this ‘hybrid claims-resolution process,’ the agency must first exercise its exclusive jurisdiction and apply its unique expertise to resolve the issues that fall within its exclusive jurisdiction." Then after exhausting its administrative remedies to obtain the agency's decision on those issues, which would be subject to substantial-evidence review in the courts, the claimant could "rely on those findings to establish its claim and obtain relief in the courts." The Court rejected the applicability of the inadequate-remedy exception to the PUC's exclusive jurisdiction, reasoning that Chaparral's claims raised issues properly within the PUC's purview and that a ruling from the PUC on those issues would advance the ultimate outcome of the litigation.
Id. at 141.
Id. at 142.
Id.
Id. (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 222, 224 (Tex. 2002) ).
Id.
Tex. Util. Code § 15.001.
Chaparral Energy , 546 S.W.3d at 142.
Id. at 141–142.
The Court also rejected Chaparral's constitutional objections based on the rights to trial by jury and to open courts. The Court concluded that "requiring the PUC to first make underlying determinations within its expertise before Chaparral can seek recourse through the judicial system does not deprive Chaparral of its right to a jury trial nor of its constitutional guarantee of open courts." The Court dismissed Chaparral's suit for lack of jurisdiction for not having first exhausted its administrative remedies before the PUC. The Court observed that "[a]lthough the heart of this case is a simple contract dispute, it necessarily involves questions of rules and regulations squarely within the PUC's purview."
Id. at 143–144.
Tex. Const. art. I, § 15 ("The right of trial by jury shall remain inviolate."); id. art. V, § 10 ("In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury....").
Id. art. I, § 13 ("All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.").
Chaparral Energy , 546 S.W.3d at 145 (emphasis added).
Id.
II
A
As noted at the outset, PURA gives the PUC "exclusive original jurisdiction over the rates, operations, and services of an electric utility". PURA states that it was "enacted to protect the public interest inherent in the rates and services of electric utilities" and "to establish a comprehensive and adequate regulatory system for electric utilities to assure rates, operations, and services that are just and reasonable". "[T]he statutory description of PURA as ‘comprehensive’ demonstrates the Legislature's belief that PURA would comprehend all or virtually all pertinent considerations involving electric utilities operating in Texas. That is, PURA is intended to serve as a ‘pervasive regulatory scheme’ ". Consistent with that intent, PURA defines service to have "its broadest and most inclusive meaning." PURA does not define operations , so the word must be given its ordinary meaning consistent with the statutory context, which is "a doing or performing of a practical work". Because "rates" and "services" relate to an electric utility's function as a utility, "operations" should as well.
Id. § 31.001(a); In re Entergy Corp. , 142 S.W.3d 316, 323 (Tex. 2004).
Entergy , 142 S.W.3d at 323 (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 223 (Tex. 2002) ).
See Sunstate Equip. Co. v. Hegar , 601 S.W.3d 685, 689–690 (Tex. 2020).
Operations , Webster's Third New Int'l Dictionary (1969).
Aleman v. Tex. Med. Bd. , 573 S.W.3d 796, 815 (Tex. 2019) (explaining the noscitur a sociis canon as requiring that "when words ‘are associated in a context suggesting that the words have something in common, they should be assigned a permissible meaning that makes them similar’ ").
Chaparral Energy should decide this case. Both cases involve common-law causes of action—breach of contract in Chaparral Energy and tort claims here—and common-law damages claims. In neither case could the PUC grant the plaintiff full relief: damages. In both cases, the PUC could decide as a legal matter what duty its regulation of an electric utility imposes under the circumstances. The answer might be a duty peculiar to the regulatory scheme applicable to the particular utility—based on its tariff, for example—or it could be the same duty as imposed by the common law generally. Either way, there would be regulatory ramifications. When the plaintiff has exhausted his administrative remedies, he may proceed in court. For the reasons explained at length in Chaparral Energy , this two-step, hybrid dispute-resolution process, first approved by the Court nearly 20 years ago, preserves both the PUC's exclusive jurisdiction and a plaintiff's right to a jury trial. The legal issues for the PUC would never be for a jury, and the factual disputes for a jury would never be for the PUC. The Court goes so far as to argue that this process would abrogate rights in dereliction of the common law. But Chaparral Energy rejected that very argument in a lengthy discussion. The hybrid process Chaparral Energy describes cannot abrogate common-law tort rights when it does not abrogate common-law contract rights.
As noted above, Taylor also asserts DTPA violations and claims statutory damages.
Oncor Elec. Delivery Co. v. Chaparral Energy, LLC , 546 S.W.3d 133, 142–145 (Tex. 2018) (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 222 (Tex. 2002) ).
Id. at 143–144.
B
The Court argues that this is merely a personal-injury case having nothing to do with utility regulation. But as quoted above, Taylor's allegations are replete with detailed complaints that "Oncor was negligent in the placement of and/or continuing the placement of the service line that ran across [his] property, through trees, to the neighbor" and "should have moved [it] when asked". Taylor's complaints relate directly to Oncor's operations and services. Today's decision ignores what the Court has long known: that "jury awards can have an effect akin to regulation." Damages recovered in a lawsuit "can be, indeed [are] designed to be, a potent method of governing conduct and controlling policy." Taylor claims actual, punitive, and statutory damages for his severe injuries. Whether he wins or loses, Oncor and every other electric utility in Texas will have to take note. They will have to decide whether to alter their placement and maintenance of electric lines and poles, or not. The PUC might decide that the common-law duty of care applies here, just as it might have decided in Chaparral Energy that a utility contracting to provide electric service must do so within a reasonable time, as the common law would require of nonutility service providers. Courts could decide those duty questions for utilities as they do for nonutilities. But the Legislature has chosen to ensure comprehensive regulation of electric utilities for the public good by giving the PUC jurisdiction to decide their legal duties related to operations and services to the exclusion of judges and juries.
Plaintiff's Second Amended Petition 12.
Moore v. Brunswick Bowling & Billiards Corp. , 889 S.W.2d 246, 249 (Tex. 1994).
San Diego Bldg. Trades Council v. Garmon , 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
The Court asserts that the PUC, in its own words, "does not have jurisdiction to adjudicate private tort or contractual disputes between parties." But the assertion is a strawman. No one argues to the contrary. Chaparral Energy holds that the PUC can resolve legal issues in a contract case prefatory to its final judicial adjudication. And the PUC has acknowledged that while it lacks "the authority to make common-law determinations", its regulatory determinations "might inform a court on aspects of claims within the court's jurisdiction". On behalf of the State as amicus curiae, the Solicitor General, whose views the Court called for in this case, argues strongly that the process laid out in Chaparral Energy should apply in the present case. And in fact, the PUC has exercised its jurisdiction over a complaint that "Oncor unreasonably abused its discretion when conducting tree trimming activities". Taylor argues that tort cases are categorically excepted from the PUC's exclusive jurisdiction. While the Court seems to regard the argument approvingly, it never quite endorses it. Instead, it reiterates that courts adjudicate tort cases. Of course they do. And courts could adjudicate issues relating to an electric utility's rates, operations, and services. But the Legislature has determined that these issues are exclusively within the PUC's jurisdiction, as Chaparral Energy confirms, and as the State insists in this case.
Ante at ––––.
Tex. Pub. Util. Comm'n, Order at 1–2, Complaint of Giovanni Homes Corp. Against Oncor Elec. Delivery Co. , Docket No. 45854, 2019 WL 3642716 (July 18 2019).
Brief of the State of Texas as Amicus Curiae 13–14.
Tex. Pub. Util. Comm'n, Order at 5–7, Complaint of Kenneth M. Jasinski Against Oncor Elec. Delivery Co. , Docket No. 44853, 2015 WL 8536654 (Dec. 4 2015) ; see also Tex. Pub. Util. Comm'n, Preliminary Order at 5–6, Complaint of Jaime Leonardo Sloss Against AEP Tex. Inc. , Docket No. 50284, 2020 WL 1973315 (Apr. 17 2020) (determining that the PUC had "exclusive jurisdiction" to make findings regarding electric-utility operations and services underlying tort claims).
The Court argues that PURA's plain words are "misleadingly broad" and should be limited by the statute's regulatory purpose, which is not invoked by Taylor's claims. Even accepting the limitation as valid—the Court acknowledged in Chaparral Energy that "[a]ll regulatory schemes have limit[s]" —it has no more effect here than the Court gave it there. The Court acknowledges that Chaparral's claim—that Oncor's delay in providing electric service to Chaparral's wells breached their contract—involved Oncor's services and was within the PUC's exclusive jurisdiction. It dismisses Taylor's suit as a mere tree-trimming claim, having nothing to do with utility regulation. But Taylor's pleadings clearly and repeatedly complain not only that Oncor would not trim the trees away from its lines, but that Oncor placed its lines in the trees and would not move them.
Ante at ––––.
Oncor Elec. Delivery Co. v. Chaparral Energy, LLC , 546 S.W.3d 133, 139 (Tex. 2018).
The Court does not address Taylor's argument that Chaparral Energy ’s holding should be limited to contract disputes over "business affairs". Taylor points to Section 52.002(a), which gives the PUC "exclusive original jurisdiction over the business and property of a telecommunication utility in this state", and to cases interpreting that statute. The statutory grant of PUC jurisdiction over an electric utility, by contrast, contains no mention of "business and property." Nor does Section 32.001(a) contain any other language from which the limiting principle Taylor advances could be derived. Instead, Section 32.001(a) —without any reservations or qualifications relevant here—gives the PUC "exclusive original jurisdiction over the rates, operations, and services of an electric utility". "When the Legislature uses certain language in one part of the statute and different language in another, the Court assumes different meanings were intended." There is no basis for imposing a "business affairs" limitation on the PUC's exclusive jurisdiction under Section 32.001(a).
See Lynn v. Hous. Lighting & Power Co. , 820 S.W.2d 57, 58 (Tex. App.—Houston [14th Dist.] 1991, no writ) (applying PURA's telecommunications provisions to electric utilities); Dolenz v. Sw. Bell Tel. Co. , 730 S.W.2d 44, 44 (Tex. App.—Houston [14th Dist.] 1987, no writ) (construing statutory language awarding the PUC "exclusive original jurisdiction ... over the business and property of all telecommunications utilities in this state"); Calarco v. Sw. Bell Tel. Co. , 725 S.W.2d 304, 306 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n r.e.) (same); Sw. Bell Tel. Co. v. Reeves , 578 S.W.2d 795, 798 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.) (same), overruled in part by Hous. Lighting & Power Co. v. Auchan USA, Inc. , 995 S.W.2d 668, 671, 675 (Tex. 1999) (refraining from analyzing jurisdiction over the tort claim because plaintiff abandoned the claim).
Ineos USA, LLC v. Elmgren , 505 S.W.3d 555, 564 (Tex. 2016) (quoting DeWitt v. Harris Cnty. , 904 S.W.2d 650, 653 (Tex. 1995) ) (cleaned up).
Oncor argues that its tariff governs and does not impose a legal duty as Taylor asserts. In the trial court, Taylor contended that Oncor's alleged tree-trimming duty, a lynchpin of his claims, arose from Oncor's PUC tariff. Taylor now contends that the tariff does not control, and the Court agrees. But the Court correctly notes that "limitations of liability in a tariff do not necessarily ‘transform Plaintiffs’ complaint into one about [the utility's] operations or services as a utility’ ", quoting a second case the Court decides today with this one, In re Texas-New Mexico Power Co. Accordingly, whether or not Oncor's tariff controls this case does not affect my analysis.
Chapter 5 of Oncor's tariff, titled "Service Rules and Regulations Relating to the Provision of Delivery Service to Retail Customers," provides Oncor's duties to its customers. For instance, section 5.2.1, governing "Liability Between Company and Retail Customers," limits Oncor's liability for its failure to properly or promptly relocate its facilities. Section 5.4.5, entitled "Provisions for Company Facilities and Equipment and the Meter," is a specific provision regarding easements. And section 5.7, regarding "Facilities Extension Policy," governs the relocation of retail customers’ facilities, when Oncor must complete the relocation, and who constructs and pays for the relocation. While nothing in the tariff speaks directly to tree-trimming responsibilities, Taylor contended in the trial court that the tariff allocated those duties to Oncor, and Oncor disagreed.
See, e.g. , Plaintiff's Response in Opposition to Defendant's No-Evidence and Traditional Motion for Summary Judgment at 15 ("But Oncor's tariff with the State of Texas makes clear Oncor was responsible for maintaining pole-to-house power lines."); id. at 16 ("According to Oncor's own tariff, Retail Customers like the Taylors and their tenant are not responsible for maintaining Oncor's pole-to-house lines because those lines are part of Oncor's Delivery System." (citing Oncor's tariff §§ 5.4.5, 5.4.6, and 5.4.8)); id. ("Texas law [found in the tariff] gave Oncor an unequivocal legal right to trim the trees around the pole-to-house service lines that ran across the Taylors’ property. And section 5.4.6 of Oncor's tariff implies the Taylors were actually prohibited from performing tree trimming around Oncor's power lines."); id. at 17 ("Contrary to ... its tariff with the State of Texas ..., Oncor repeatedly told the Taylors it was their responsibility to trim trees around pole-to-house power lines.").
Ante at –––– n.43.
––– S.W.3d ––––, ––––, 2021 WL 2603683, *2 (Tex. June 25, 2021) (No. 19-0656).
Oncor's plea to the jurisdiction should have been granted in part to allow the parties to seek the PUC's decision regarding the application of its regulatory scheme to Taylor's claims. Once the PUC has decided issues within its exclusive jurisdiction, then Taylor may prosecute his case in the trial court in light of the PUC's determinations.
Either party may challenge the PUC's decision under the substantial-evidence rule. See Oncor Elec. Delivery Co. v. Chaparral Energy, LLC , 546 S.W.3d 133, 142 (Tex. 2018) ; Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 224 (Tex. 2002).
* * * * *
PURA's pervasive regulatory scheme—giving the PUC exclusive jurisdiction over matters involving rates, operations, and services—requires the PUC to "make certain findings before a trial court may finally adjudicate a claim." Allowing conflicting court rulings about the application of "rules and regulations squarely within the PUC's purview" would frustrate PURA's pervasive regulatory scheme and interfere with the exclusive jurisdiction vested in the PUC by the Legislature. As we have said before:
Chaparral Energy , 546 S.W.3d at 142 (Tex. 2018) (quoting David McDavid Nissan , 84 S.W.3d at 221 ).
Id. at 145.
The requirement that parties exhaust administrative remedies does not deprive parties of their legal rights. Instead, it honors the Legislature's intent that "the appropriate body adjudicates the dispute" first and thereby "ensure[s] an orderly procedure to enforce those rights." By requiring the agency to address the complaints first, the law permits the agency to apply its expertise and exercise its discretion to resolve the issue and to develop a complete factual record if the courts later get involved. A party who obtains relief through the administrative process avoids the expense and delay of litigation. And if the outcome of the administrative process leaves the party dissatisfied, it may file suit and have the courts review the agency's decision.
Clint Indep. Sch. Dist. v. Marquez , 487 S.W.3d 538, at 544–545 (Tex. 2016) (citations omitted).
Today's decision irreconcilably conflicts with Chaparral Energy and impedes the pervasive regulatory scheme established by the Legislature in PURA. I respectfully dissent.