Harris County Hospital District v. Public Utility Commission of Texas, 03-15-00386-CV

Background

Harris County Hospital District filed a complaint at the PUC alleging AT&T applied tariff late‑fee rules to a government entity instead of the Prompt Payment Act, seeking refunds for overbilling and fees for attorneys/experts under Tex. Util. Code § 15.003.
The PUC agreed that the Prompt Payment Act controlled but, because of delay, awarded only half the overcollected amounts; it did not award § 15.003 fees.
The District appealed; the Third Court of Appeals reversed the trial court’s affirmance of the PUC and remanded the case to the trial court with instructions to remand to the PUC for proceedings consistent with the opinion. The appellate opinion’s footnote declined to award § 15.003 fees.
On remand the trial court denied the District’s motion to sever its § 15.003 fee claim, signed a final judgment remanding the case to the PUC, and awarded appellate costs as directed by the mandate.
The Commission argues the trial court acted properly: the District never timely sought a fee hearing, the appellate mandate did not require remand of the § 15.003 issue, the District waived the fee issue on first appeal, § 15.003 does not apply to the District’s claim, and the alleged “regulation fund” has never been created or funded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in entering final judgment remanding to the PUC without holding a § 15.003 fee hearing	District sought severance/abatement of fee claim to pursue fees separately and later requested a hearing	Commission: District never timely requested a hearing; mandate limited scope; fees cannot be severed because § 15.003 requires award "in the same action"	Trial court properly entered final judgment remanding to PUC without a § 15.003 hearing
Whether the appellate mandate required the trial court to decide § 15.003 fees on remand	District contends remand left fee question to trial court	Commission says mandate only ordered remand to PUC for proceedings consistent with opinion; no mention of fees	Mandate did not require trial court to conduct a § 15.003 fee hearing; such action would exceed the mandate’s scope
Whether the District waived its § 15.003 claim on appeal	District included § 15.003 in the prayer of its brief	Commission notes District filed no issue, argument, or authorities on § 15.003 in its briefs, and failed to respond to appellee’s briefing	District waived the § 15.003 issue by failing to brief it on the first appeal
Whether § 15.003 authorizes recovery of attorneys’ and experts’ fees here	District seeks fees under § 15.003 against the "regulation fund"	Commission argues § 15.003 applies to claims that rates are excessive, not the District’s statutory‑conflict claim; no regulation fund has been created or funded so sovereign immunity bars recovery	§ 15.003 does not authorize fees in this case; the District’s complaint did not challenge rates, and the referenced regulation fund does not exist or contain appropriated funds, so fees cannot be awarded

Key Cases Cited

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) (absence of legislative appropriation defeats suit against the State)
Jay Petroleum, L.L.C. v. EOG Resources, Inc., 332 S.W.3d 534 (Tex. App.—Houston [1st Dist.] 2009) (procedural rules governing summary‑judgment remand and when causes remain live on remand)
Ford Motor Co. v. Butnaru, 157 S.W.3d 142 (Tex. App.—Austin 2005) (in judicial review of agency action, appellate court generally issues a general remand for further proceedings)
Montgomery v. Blue Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147 (Tex. App.—Austin 1996) (appellate reversal and rendering/judgment after summary judgment requires that parties have sought final relief)
V‑F Petroleum, Inc. v. A. K. Guthrie Operating Co., 792 S.W.2d 508 (Tex. App.—Austin 1990) (mandate limits trial court authority on remand)
Whitmire v. Greenridge Place Apartments, 333 S.W.3d 255 (Tex. App.—Houston [1st Dist.] 2010) (trial court must carry out appellate mandate; remand‑implementing orders are ministerial)
State v. Anderson Courier Serv., 222 S.W.3d 62 (Tex. App.—Austin 2005) (refusal to remand attorneys’‑fee question where fee issue was not raised on appeal)
Valadez v. Avitia, 238 S.W.3d 843 (Tex. App.—El Paso 2007) (issues neither listed nor briefed on appeal are waived)
Sw. Galvanizing, Inc. v. Eagle Fabricators, Inc., 447 S.W.3d 473 (Tex. App.—Houston [14th Dist.] 2014) (distinguishable; there the appellate court had already awarded fees, so remand required implementation)