City of Corpus Christi v. Public Utility Commission of Texas

against original cause of action Micrea’s L. DuCroz. Plains and Charles

Coastal action, remaining

As to the cause are re- of the courts below

judgments is here rendered judgment

versed and Micrea, Inc., nothing ac- take in its L. against Coastal Plains Charles

tion 503, Tex.R.Civ.P.

DuCroz. Rule respects, all Micrea’s motion for other overruled.

rehearing is CHRISTI, et

CITY OF CORPUS

al., Appellants,

v. COMMISSION UTILITY

PUBLIC Texas, al., Appellees. et B-7028.

No. of Texas.

Supreme Court 17, 1978.

May 5, 1978.

Rehearing July Denied

McGinnis, Lochridge Kilgore, B. D. McGinnis, St. Austin, Clair and C. Robert for appellants.

Dyer, Redford, Burnett, Wray & Wool- sey, Corpus Christi, W. N. Woolsey, John L. Hill, Gen., Atty. B. Joyce Carpenter, Asst. Gen., Atty. Austin, appellees. JOHNSON, SAM D. Justice. requires instant interpreta- case an tion of the Regulatory Act, Article Texas Revised Civil Statutes Annotated, presents a central issue of impression. first Christi, Appellants al., et Corpus here seek direct review of the order of refusing enjoin district court enforce- ment of the final order the Public Utility Commissiongranting an increase of electric utility rates for Central Power Light Company within appellant jur- cities. The isdiction Supreme Court alleged V, pursuant 3-b, to Article Constitution, 1738a, Article Texas Revised Annotated, Civil 499a, Statutes and Rule Procedure, Texas Rules of Civil which pro- vide for direct this court of any order of granting the trial court or denying injunction grounds of the validity or invalidity of an administrative order. Appellants thirty-two are of the one hun- dred seven incorporated elec- appellee tric service by Central Pow- er Light in a service area comprising forty-four one forty- counties and hundred four thousand square miles South Texas. Central Power and filed a state- change ment intent to rates with each of thirty-two cities under the Public Utili- 43(a). Upon Light’s re- supra, Section bar. ty Regulatory quest, granted an interim that Central requested Each base, January setting temporary information as to “rate rates on revenue, and rate expenses, investment mu- return” the boundaries each explained, the Com- fully As will be more 23 of nicipality to the pursuant mission, 23, 1977, February on entered an its determina- in order to make individual setting tunc forth a pro interim order nunc requested increase. Central tion the rate finding peril not included imminent in Light Power declined to furnish the and The was January order. final order by each and “separated requested city data” 25, on February entered the Commission “system-wide tendered instead uniform rate granting approxi- increase of term data” refers “separated data.”1 The $23,000,000. litigation The in Public mately regarding assets and information 167, al., Docket No. et is Utility Commission solely each operations of the in two mat- now before this court distinct boundary. “System- particular application predi- for writ of error ters: regarding to information wide data” refers 24, order January on the interim cated operations assets and the. 1977; appeal. and the direct instant serves without throughout the entire area it cities as to served. breakdown individual WRIT THE APPLICATION FOR ERROR OF Act, Utility Regulatory

The Sec- Public will 17(a), provides tion its After Commission entered interim original jurisdic- January continue to have exclusive temporary order rates on boundaries, 24, 1977, but tion over within their the cities filed suit in the 98th 17(d) enjoin Com- County under Section district court of Travis jurisdiction. with interim The mission is vested enforcement order. involving elec- order was provisions such cities contended that interim Pursuant express or city after each denied invalid as the Commission had no tric rates and increase, implied power temporary to set rates3 un- requested rate Central Public Utility Regulatory Com- der Act. Light to the Public appealed Further, mission, urged each of the the cities the interim which consolidated 167, No. al.2 was for failure to recite cities’ as its Docket et order invalid cases (cid:127) sys- finding peril case on the of “imminent to the The Commission heard the health, safety, required by welfare” as by Central Power or presented tem-wide data objection. This the Administrative Procedure Article Light and over cities’ 6252-13a, 16(c), Commission, hearing case Texas Revised Civil action data, The 98th district prin- occasions the Statutes Annotated. system-wide on County granted tempo- Travis in the case at court of question to be resolved cipal Light. The en- and Commission and made available 1. Central Power filing package, com- rate final order in Docket No. 91 each an extensive tered amended pursuant 24, piled January to Public record of on 1977. entire regulations, in detail the cur- which set forth No. 91 introduced into evidence in Docket was and 167, al., situation of Central Power thereby part rent financial Light. Docket No. et and made a appeal. in the record the instant direct separate proceeding, Com- A 2. argument here is limited to an 3.The cities’ simultaneously in No. mission Docket power of the attack on Com- original progress. No. both Docket 91 included temporary rates in the mission to fix exercise appellate proceedings Central Power pursuant appellate jurisdiction to Sec- of its in rural areas increases 17(d) Utility Regula- of the Public tions tory parties proceedings in five cities undisputed It is that the Public Utili- Act. are et The cities which Docket No. appellant al. temporary ty power has the to fix appeal inter- the instant direct in original jurisdiction. rates in the exercise of No. The Commission vened Docket 1446c, 43(d). Tex.Rev.Civ.Stat.Ann. objections the intervenor cities overruled the system-wide therein data rary injunction. and Light Central Power 126th County district court of Travis denied appealed appeals.4 court of civil the requested injunction. The cities then appeal instituted instant direct points and 2 their brief Supreme court’s Court of the trial denial of again court of civil at injunction validity the basis of the validity tacked the interim order. an administrative order. The thrust Point 1 attacked the interim on the court, cities’ argument in the trial grounds that the Commission had no ex again points through as their of error 1 5 in press implied authority appeal, this direct is that the final order is Utility Regulatory temporary Act to make upon invalid as it is system-wide based orders in cases it heard on from a data, than according rather municipality. determination of a Point 2 they each allege re- argument reurged the cities’ that the inter quired the by Utility Regulatory Public comply im order was invalid for failure to Act. Act, with the Administrative Procedure 16(c), requiring Section that the orders of However, as point their of error number agencies given all administrative to im be 6 in the appeal, this direct cities again urge effect finding mediate contain “immi that the goes interim order is invalid itas peril health, nent to the public safety, or beyond express implied the powers or of the welfare.” The appeals court civil re Public Commissionunder the Public the judgment versed and rendered of the Utility Regulatory Again, Act. the cities trial and temporary court vacated the in assert the that absence of finding the

junction. Public v. City Com’n peril” “imminent required by 16(c) Section Christi, Corpus (Tex.Civ. 555 S.W.2d 509 of the Administrative Procedure Act fur- 1977, App. filed). The writ cities — Waco ther invalidates the interim order. then an application filed for writ of error Appellee Central Light argues pending which is now before this court in that jurisdiction this court has no review to B-7136, Christi, City Corpus No. et a l. v. the cities’ point by error number 6 direct Texas, Commission of et a l. appeal as cities previously have at- 4,3, points error and 5 of appli their tacked same interim order on the same cation for writ of error to court this grounds appeals, in court of civil albeit again urge cities that the interim order is in the appeal of a different cause of action. invalid as The Light’s basis Central Power and express implied authority was without to assertion Rule is 499a which sets forth temporary enter a order in an procedures applicable to appeal. direct case Utility Regulatory 499a(c) provides Rule appeal “[s]uch Further, Act. the cities reassert that the shall be in lieu of an appeal to the Court of interim order rendered invalid because Civil . . Appeals . .” Tex.R.Civ.P. Commissionfailed find 499a(c). This court long has recognized the required peril” “imminent the Ad logical implication of Rule 499a that an 16(c). ministrative Procedure appellant must choose appeal between an the court of civil appeals and a ap- direct THE DIRECT APPEAL peal Supreme pur- Court and cannot Meanwhile, following entry sue both. Railroad Commissionv. Oil Shell Commission’sfinal order of rate increase on Co., 286, (1947). 146 Tex. 206 S.W.2d 235 25, 1977, a second February the cities filed enjoin suit to enforcement of 499a option distinct Rule creates an for an appellant order of the The coming final Commission. its application. An supreme initially judicial Power filed Central the tenth district at Waco in appeal appeals equalize civil in the court of for the third order to the business of the dockets judicial supreme respective V, pursuant at The district Austin. case courts to Article subsequently Constitution, transferred and Article Supreme appeals Court to the court of civil Texas Revised Civil Statutes Annotated. THE DATA SEPARATED ISSUE regular appeal may proceed appellant appellant or an appeals of civil the court error, points of present The cities several appeal to a direct may pursue elect to objection to the thrust of which is Central may do ei- appellant An Supreme Court. provide Light’s failure Power do both. ther, may not appellant but with for rate which has pursue election to no cities exercised reflect information on a been appeals civil court of appeal to the dispute no city-by-eity basis. There is order; they involving the interim cause information. Nor must court’s as the trial to do so had no reason utility here furnished disputed is it that the Rather, favor. the cities’ was in injunction pos- which it was all of the information of it was the Commission cities or by ap- requested sessed which was appellants option exercised their Further, of civil Commis- the court the Commission. peal to hand, the cities who it is the other case. On finding that the specific sion here made a ap- case. As in the instant appellants are each of the cities sufficient utility furnished which have elected the cities pellants, it is cities could information from which the Supreme appeal direct pursue proper rate to be have calculated to the court lieu of an Court in to each of the classes of customers charged appeals. civil within the cities. argues, requesting informa- The cities were not cities, asserting their however, the records, utility’s on the appears tion which involving cause defensively in the argument study be made requesting were but ap of civil in the court interim order the study of that utility and the results by the point of the merits of peals, chose review to each form and allotted appellate by the intermediate number 6 be furnished to the municipality individual juris Supreme Court court and foreclosed allo- study utility made cities. case. instant appeal in the by direct diction customer, but by class of did cated costs of that the exercise opinion are We of separate by geographic costs court allocate option for Light’s and Central Power is, cause review in a different must be resolved civil area. The issue which of Rule infringe the cities’ will not of action Act, which has the burden party under the appeal direct considera option to seek 499a separation making the allocation and Light, not tion here. Central area covered each indi- geographic court of cities, appeal to the initiated seeking a rate in- city, vidual upon called The cities were appeals. civil themselves? crease or the cities appeals by as of civil in the court defend provides as follows: 23 of the Section order and of the interim serting invalidity regulating However, “Any municipality of the resolution so. properly did juris require appeal pursuant to this Act shall this court’s direct utilities question num of error point necessary individual data to diction over utilities all from those the court’s necessary to sustain 6 is not ber of rate determination make a reasonable Where appeal. in this direct jurisdiction investment, base, and rate of expenses, jurisdic has Court Supreme municipal boundaries. return within the jur “extended acquires it any issue tion of for such determination The standards prop of law questions all other isdiction” of re- procedures and shall be based on Harry El presented. preserved and erly munici- of this Act and said quirements Sons, Inc., & v. T. Lankford dridge Co. S. personnel all any shall retain palities undisputed It is (Tex.1963). 878 371 S.W.2d necessary to make the determination has direct properly court that this this Act.” required reasonable rates 2,1, error points of of the cities’ jurisdiction 1446c, 23. art. § Tex.Rev.Civ.Stat.Ann. also has that this court 3, 4, We hold and 5. requires 23 argue The cities that Section point of the cities’ to consider jurisdiction separated data from accept only them error number 1974, utility. Central Power and (Tex.Civ.App. writ ref’d — Dallas e.). n. posi- City Arlington take the r. See also v. Tex. Co., requires (Tex.Civ. Elec. tion that Serv. S.W.2d Section 1976, App. writ e.). from which Worth ref’d n. r. only that information — Fort base, municipality the rate can calculate against It such background was investment, expenses, and rate of return utility regulation recurrent issue in within the boundaries. Central that the Utility Regulatory Act was 1975, enacted in with Act to become utility’s duty urge that making September effective as to rate system-wide met provision literally 1976. Reading provisions here. require must impression The instant case is one first the utility information, certain furnish since the enactment but the making burden of the determina upon are called Regulatory Act. We base, investment, tion of expenses, rate interpret absence of the Act in the control- placed upon of return is the municipali ling precedent. The drafters of the Public ty. Further, requires Section 23 Utility Regulatory Act included a state- municipality, utility, not the retain the staff ment purpose introductory of its lan- necessary to make the determination of rea Act, guage “compre- to establish a logical sonable implication rates. The system. hensive” regulatory Tex.Rev.Civ. Section 23 is that the burden of separating 2. The Stat.Ann. read as required upon data is the municipality, whole, attempts regulate the realities utility, rather than on the and we so hold. contemporary utility systems service for This supported by determination is publie mutual benefit of the and the 24 which authorizes to en utilities. One of these realities in this state gage investigations consultants to make large utilities, integrated the existence of in rate-making pro recommendations many the facilities of serve which communi- ceedings. provides This Section further regard governmental ties without bound- the municipality’s recovery of reasonable Light aries. Central Power and is such an expenses proceedings of rate from the utili integrated utility. ty, provision a obviously is intended mitigate against disproportionate finan The separated sys- as contrasted to the impact cial municipality. to the In addi controversy tem-wide data has its roots in tion, 29(a) Act city Section of the assists the period utility regulation an earlier of prior in its rate-making function. This Section Reg- enactment of the inspection authorizes the and copying of the ulatory Act. This court was confronted utility’s records, inspection of the utili in separated with the issue General data facilities, ty’s and the examination of the City Wellington, of Telephone Company v. officers, utility’s agents, employees (1956). 156 Tex. In 294 S.W.2d city. confiscatory telephone reversing as City Wellington of rates set this This determination finds further support. telephone approved company’s court First, whole, read as a is consistent provision rate-making data from the en- of Second, with this result. this determination exchange including tire both and rural is interpretation consistent with the given However, municipality’s require- areas. to the Act by the Public Commis- ment that utility provide Third, sion. this determination is consistent upheld by has been several courts of civil with the construction mandated basis where such case-by-case on a 89: “This Act shall liberally be construed Telephone promote General request was reasonable. and efficiency effectiveness of Garland, City regulation v. Co. S.W. S.W.2d utilities to the extent neously rendering validi- serve all its preserves the customers that such construction provisions.”5 its ty of Act and the allocation of cost on a territorial basis inappropriate setting an method of in rate Power and Having that Central resolved present-day the context technology. duty its under Sec- Light properly fulfilled data, we system-wide providing tion 28 claim that find without merit cities’ THE SURCHARGE ISSUE to exhaust Central Power and failed urge The cities also the Public Utili- remedies. its administrative ty final order Commission’s is invalid be- Utility Regulatory Act The Public requires surcharge cause it on the cities’ estab require municipalities not does ratepayers as a condition the cities’ re- on the basis of an allocation solely lish rates covery investment, and rate base, expenses, rate proceeding expenses. Section 24 of the boundaries. municipal return within provides Act shall have Rather, munici requires that the right personnel necessary hire a reasonable determination of pality make investigation rate-making and conduct of pro 22 of the Act also this data. Section proceedings and that shall be body may con governing vides that “the required to such reimburse reasonable ex- and return public utility’s revenues sider a 1446c, penses. art. Tex.Rev.Civ.Stat.Ann. nonexempt areas.” Tex. on investment in argue 24. The cities that Section § art. Rev.Civ.Stat.Ann. [Em right recovery creates unconditional vocabulary of Section phasis In added.] the municipality and that the Public “nonexempt are those

22 of the areas” authority Commission exceeded its incorporated boundaries areas outside recovery conditioning upon in such a sur- jurisdic exercising original municipality charge. Thus, municipality regulating tion. need question We not reach the of wheth- data within the must determine may prop- er the Public its determination of rates and in boundaries recovery of erly municipality’s condition a data, internal only may consider upon surcharge costs enactment of ordi- nonexempt other areas also data from but question properly as that is not be- nance rates. In utility system us. instant fore case appellate jurisdiction the the exercise of right did not limit the is to set those Utility Commission expenses cities to recover from Cen- have should rates which Light. tral Power The restriction of ap which the ordinance from fixed complain which the the Commis- Tex.Rev.Civ.Stat.Ann. peal taken. fact” that Power “finding sion’s Central Further, 1446c, where the Public 26(e). be “should allowed to collect appropriate it considers payers city the rate in each a sur- two or more may treat the Commission paid charge expense for the cost of single utility, a as a by municipalities served cities, in each parties by third it of said 1446c, art. class. Tex.Rev.Civ.Stat.Ann. reasonable each determine the therefore, hold, that on We §38. by expense cost of rate and finalize same con properly Utility Commission the Public for ordinance and its collection determining system-wide data in sidered year within one date ordinance by Cen served appellant expense the amount of such to be sets Light. hold otherwise To tral Power customers, reality collected from each class contemporary that ignore the would billing, that said utility simulta- time and method of such integrated an the assets of objective: compre- contrary of the Act’s “to establish a determination that a It is be noted utility, regulatory system adequate to integrated hensive which is an electrical would enable regulating public . example, in this in- the task of utilities . Central stance, object myriad 2.§ of rate Tex.Rev.Civ.Stat.Ann. of a to be could well be destructive a result cases. Such

297 expense equitably will be boerne and 24. The final order held that the rates [sic] each rateably by each customer be were to effective as the effective date [Emphasis class.” added.] the interim order. by finding This restricts method order interlocutory An interim or is Light may prop which by pending definition an order made erly pass along ratepayer, this cost cause, disposition a final on the mer before restricting rather than cities. Pass Brown, its. First Nat. Bank Dallas v. costs to the con through rate-making 168, (1932); 122Tex. 53 604 see also S.W.2d by surcharge widely sumer is ordinance Jorns, (Tex.1972). Webb v. 488 407 S.W.2d recognized rate-making practice. Wabash by The interim order entered 488, Valley Young, Co. v. 53 Elec. U.S. 23,1977 February by Commissionon 234, (1933). An S.Ct. L.Ed. 447 adminis only its terms was effective such “until is ex agency trative created to centralize hearing time a final shall be had such and,

pertise regulatory in a certain area by rates and a final is order entered therein thus, given large degree is be of lati this Commission.” The final order of the courts in by by tude the methods which Commissionwas entered Feb it its accomplishes regulatory function. 25,1977 ruary entry and such has terminat v. Houston Natural Railroad Commission ed the interim order. As the interim order Corp., Gas Tex. 289 S.W.2d 559 effective, longer is no no relief therefrom (1956). granted by can be this court. It well-es is Further, finding not mandatory is tablished that when an order under consid its language and is not included referred appellate prior eration an court expires to in section of the final order which to its final determination forth the actually sets decree the Com- court, relating the issues to it are rendered Thus, finding clearly mission. does Speed v. Keys, moot. 130 Tex. amount conditioning cities’ Sec- (1937). opinion S.W.2d are of We right tion 24 to recover costs as the cities longer that as the order interim is no assert. effect, no relief therefrom can granted be court cities’ and the attack on the THE TEMPORARY ORDER validity of the interim order is rendered Finally, validity cities attack Therefore, moot. do not we reach the mer temporary Commission’s complaint validity of the cities’ as to the grounds order on the of the interim order. statutory power has no to enter judgment of the trial refusing court interlocutory order in exercise enjoin enforcement of the final order is appellate jurisdiction. The cities alterna- affirmed. tively urge temporary void under the Administrative Procedure J., Dissenting opinion by DANIEL, 6252-13a, 16(c), Re- Article CHADICK, J., joins. Annotated, vised Civil Statutes for failure allege peril “imminent GREENHILL, J.,C. not sitting. health, safety or welfare.” DANIEL, Justice, dissenting. The entered Commission I respectfully dissent. order of rate increase on Janu- interim The effect of opinion the Court’s is to February 1977 the ary 1977. On permit regulation utility by of electric order nunc rates Commission entered an interim adding January a the Texas Public on pro tunc 24 order a system-wide basis finding peril. allowing The Commission instead effec- of imminent 25,1977, rate-making jurisdiction tive February original order on in- entered its final municipalities dividual within declaring respec- effective same estab- their January the interim order of tive action lished under boundaries. This is said be Commission, (a) Subject 17. “Sec. limitations justified, on following imposed statement: purpose in this and for the ignore regulating would services that “To hold otherwise rates and so the assets of contemporary reality fair, may just, and such rates be reasona- integrated utility simultaneously serve an ble, adequate and the services and effi- rendering allocation all its customers cient, governing each body munici- inappro- on territorial basis an of cost original juris- pality shall have exclusive in the con- priate method electric, water, over all sewer diction technology.” present-day text of rates, operations, pro- and services Act of Legislature Prior to is in direct This 1975. Article appears conflict with that in the adoption to be policy V.A.C.S. Act, municipali- adopted by decision Regulatory (1975).1 (Emphasis vided utility within its ^{[*] [*]} added electric, water, ^[*] throughout.) ^[*] or town limits. ^[*] sewer ;fc involved. See ized ties were the within oughly considered had wide continued This very regulation control and the their territorial boundaries companies advocated power regulation issue repealed Articles 1119 only of state-wide or by the regulate public agencies which by the Commission versus 64th the rates here more central- Legislature. Municipal was thor- system- et seq. this Act. sive sive operations, water, limits “(e) The commission shall have exclu- ^[*] original services original of a and sewer ^[*] municipality exercising and services as jurisdiction not within the jurisdiction ^{[*] [*]} rates, over over incorporated those ^[*] operations, electric, exclu- rates, ^[*] idea of a State opposed the whole League municipality 22. . . . If a “Sec. regulation municipal until jurisdiction, local does not surrender munici- boundaries of within the territorial within the boundaries of utility service and retained.2 palities reserved shall municipality exempt be instance, the 64th Bill For Senate regulation by the commission under the (1975), Reg. proposed Leg., Sess. provisions of Act extent regulate elec- should new State Commission service, applies this Act to local services, with- rates and telephone tric and have, municipality regarding service shall regulation. local Various out continued boundaries, right within its to exer- the exist- have diminished other bills would regulatory powers cise the same regulate rates ing powers of the cities as com- standards and rules same boundaries, of them but none their mission, or other standards and rules not Instead, wisely or whether adopted. were . therewith. inconsistent not, opted committee the conference Any regulating 23. “Sec. in a man- proposals various combination of pursuant utilities reg- continued local permit which would ner utilities all nec- require shall from those their bounda- by the cities within ulation make reasonable deter- essary data to report, committee conference ries.3 base, expenses, invest- mination of rate (Article 1446c), Legislature by the adopted ment, within the mu- and rate of return relating following provisions contains nicipal. boundaries. The standards within the jurisdiction original shall be based on municipality: such determination each territorial limits of Regu- legislative statutory Ad Hoc Committee are to Vernon’s An- references All otherwise Texas Civil Statutes unless lation and to the Senate Subcommittee on Con- notated during legislative noted. Affairs the 64th ses- sumer sion in 1975. History Hopper, Legislative “A 2. See 1975,” Utility Regulatory Act of Baylor L.Rev. at 785-789. 3.See 28 (1976). Hopper, Baylor a 777 Dr. L.Rev. 28 consulting economist, a consultant was 299 procedures “HB the requirements gave authority and 433 commission municipality any said shall retain and require separated city, to data on each make de- personnel necessary all the permitted and have cities to consider [sic] required termination of reasonable revenues and return in the area outside under this Act.” area), city (non-exempt the when city’s area). provisions, (exempt view of in rates in the area the above read Act, it connection with the entire is difficult power Cities would retain the to decide to understand how the Court has concluded use, require whether properly that the separated data or not. This lan- same determining in system-wide considered data guage into put Cl remains in thirty-two incorporated rates for the PURA.”4 served Central Power and instead Legislature It would seem since the base, “rate ex- data separated municipalities original has with penses, investment and rate of return with- jurisdiction to fix rates within their municipal in of each said boundaries” municipal power boundaries and the re- Surely, appeal cities. on the Commission quire from all necessary utilities data set base its decision on the same criteria should in forth Section 23 for purpose of deter- prescribed separate rates, mining any appeal such from mu- system-wide rather than on a different cri- nicipality’s decision should likewise be based 26(e) of clearly teria. Section Article 1446c separated on the data set forth in Section states that on the Commission must 23 rather on system-wide than I data.. municipality set “rates as the should have would hold that municipalities may require ap- fixed in ordinance from which the utilities to furnish the peal separated was taken.” Whether a rate data with- increase justified municipality boundaries, for one cannot be in their and that such determined on system-wide overall criteria separated data ap- should be considered on covering incorporated 107 cities in South peal until Legislature and unless Texas counties. Under the can- so changes provide law as to for data to required not and should not be to increase be furnished sys- and rates to be set on a be- simply rates within boundaries tem-wide lieu present basis in provi- deficiency cause has revenue sions of Article 1446c relating original other areas or places. municipal jurisdiction. Act, municipalities to the 1975 had

Prior authority require that utilities CHADICK, J., joins in this dissent. data referred to in 23 Telephone Article 1446c. General ofCo. ON MOTION FOR REHEARING Garland, City the S.W. v. 509 S.W.2d motion rehearing parties On have e.); (Tex.Civ.App.1974, City writ ref’d n. r. Co., holding submitted briefs Arlington regarding v. Tex. Elec. Serv. (Tex.Civ.App.1976, writ n. our opinion May S.W.2d ref’d delivered 1978 that the e.). nothing legislative r. There is in the upon cities’ attack Com- or the words of history Section 23 that mission’s interim order is moot. The court Legisla- would indicate an intention has original determined determina- away authority ture to take tion mootness should be modified and municipalities. contrary, provi- On upon the cities’ attack the interim be 23 seem sions of Section to confer stat- considered on the merits. authority ute same which had been Concern for efficient previously prior held to exist under laws. administra Hopper requires Dr. states: tive procedure consideration may requesting pro- “issue orders Id. 815. See also “Public Commission: utilities to Review,” Appellate expenses, Procedure Judicial vide on these investments Baylor (1976), municipality’s L.Rev. which it is return within bor- stated new Act ders.” upon appeal only orders validity of interim River Lower Colorado final orders. HIESTER, parte Ex William J. Producing Gas

Authority v. States Coastal Jr., Relator. (Tex.1977). Fur- Company, 551 S.W.2d ther, should be deter- the interim order No. B-7599. if invalid, appears it mined to be Texas. Supreme Court of allowing the grant relief court could paid temporary cities to recover June 1978. order. under the interim discussed, the cities previously As

argue that enter an interloc statutory power to

has no exercise of its

utory order in the agree. We cannot

jurisdiction. pro Utility Regulatory

of the Public power to has the that the Commission

vides jurisdic within its public utilities

regulate specifi things, whether

tion and “to do all here implied Act or designated in this

cally to the exercise

in, necessary and convenient jurisdiction.” Tex.Rev. power

of this art. 1446c §

Civ.Stat.Ann. of a pending temporary rates of an interim the issuance order necessary and convenient patently appel the Commission’s

to the exercise of Accordingly, the Commis jurisdiction.

late an order. to issue such empowered

sion the cities assert

Alternatively, failure to com is void for

the interim order 16(c) Administrative

ply with Section Act. Tex.Rev.Civ.Stat.Ann.

Procedure 16(c) provides 16(c).

6252-13a peril that imminent agency finds

that if an health, safety, or welfare re

to the to a given effect be immediate

quires that order, so order with may it

final decision finding. On of such recitation

appropriate final 16(c) only to applies

its face Section apply not does orders and

agency Therefore, we conclude here.

interim order interim or upon the the cities’ attack fails. on this basis

der correcting our purpose of the limited

For interim order

writing relative rehearing is

mootness, cities’ motion such motion respects, in all other

granted; rehearing is overruled. J., sitting.

GREENHILL, C.

Case Details

Case Name: City of Corpus Christi v. Public Utility Commission of Texas

Court Name: Texas Supreme Court

Date Published: May 17, 1978

Citation: 572 S.W.2d 290

Docket Number: B-7028

Court Abbreviation: Tex.