Nawaid Isa v. Public Utility Commission of Texas Ambit Energy, LLC And CenterPoint Energy Houston Electric, LLC
528 S.W.3d 609
| Tex. App. | 2017Background
- Isa built lighted cricket fields and contracted with CenterPoint (TDU) for service; Ambit (REP) supplied electricity beginning August 2013.
- Increased usage reclassified Isa’s service, triggering demand charges billed by Ambit starting October 2013; Isa refused to pay roughly $1,955.74 in demand charges (total unpaid $2,184.56).
- Isa filed informal then formal complaints with the PUC; SOAH referred the matter for administrative hearing. ALJ granted summary rulings for defendants on most claims but left the demand-charge claim.
- Ambit later credited Isa’s account for the disputed amount and, with CenterPoint, moved to dismiss as moot; the ALJ dismissed the complaint with prejudice under PUC rule 22.181.
- Isa appealed the ALJ’s dismissal to the PUC (rule 22.123); the appeal was deemed denied. Isa did not file a motion for rehearing and instead sought judicial review in Travis County, where the trial court dismissed for lack of jurisdiction on pleas asserting failure to exhaust administrative remedies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Isa’s rule 22.123 appeal to the PUC can be treated as a motion for rehearing | Isa: his appeal of the ALJ dismissal should be construed as a motion for rehearing | PUC/defendants: appeals under 22.123 and rehearing under 22.264 are distinct procedures at different stages | Court: appeal under 22.123 is not a substitute for a rehearing motion; overruled Isa’s point |
| Whether filing a motion for rehearing would have been futile | Isa: rehearing would be futile because PUC already reviewed and denied the ALJ appeal | Defendants: futility not established; burden on Isa to show rehearing would be denied | Court: futility exception not met; Isa offered no evidence; overruled point |
| Whether deficiencies in ALJ dismissal order (lack of separately stated findings/conclusions) excused rehearing requirement | Isa: order lacked required findings so not subject to rehearing requirement | Defendants: defects must be raised in a motion for rehearing to preserve error | Court: lack of findings does not excuse filing rehearing; complaints had to be raised in rehearing; point overruled |
| Whether PUC rules barred a motion for rehearing after an appeal under rule 22.123 | Isa: rule 22.123(b)(1) and (a)(8) prevent filing rehearing after appealing | Defendants: section (b) addresses interim PUC orders; nothing in (a) bars rehearing after appeal is denied and becomes PUC order | Court: rule 22.123 does not prevent filing a motion for rehearing after the appeal process; point overruled |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for plea to jurisdiction and construction of pleadings)
- Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (plaintiff’s burden to demonstrate jurisdictional facts)
- Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002) (exhaustion of administrative remedies required before judicial review)
- Suburban Util. Corp. v. Pub. Util. Comm’n of Tex., 652 S.W.2d 358 (Tex. 1983) (motion for rehearing purpose: notify agency of dissatisfaction and preserve appeal)
- BFI Waste Sys. of N. Am., Inc. v. Martinez Env’t Grp., 93 S.W.3d 570 (Tex. App.—Austin 2002) (failure to raise defect in motion for rehearing forfeits complaint on review)
- Ogletree v. Glen Rose Indep. Sch. Dist., 314 S.W.3d 450 (Tex. App.—Waco 2010) (futility exception to exhaustion requires proof that relief would be denied)