IN RE CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, RELATOR
No. 19-0777
IN THE SUPREME COURT OF TEXAS
June 30, 2021
ON PETITION FOR WRIT OF MANDAMUS
Argued October 8, 2020
JUSTICE BOYD filed a concurring opinion.
CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE BLACKLOCK joined.
JUSTICE HUDDLE did not participate in the decision.
Three cases we decide this term address whether the exclusive jurisdiction of the Texas Public Utility Commission (PUC) over an electric utility‘s rates, operations, and services extends to certain issues raised in common-law tort suits against utilities.1 In this case, a good Samaritan
We hold that the PUC does not have exclusive jurisdiction because the plaintiffs and their decedent are not “affected persons” statutorily authorized to bring a complaint in the PUC. In addition, whether a regulatory scheme has displaced the common-law duty of reasonable care is a matter for courts—not agencies—to decide, and CenterPoint correctly argued in the trial court that the common-law standard applies. It is for a trier of fact to determine whether the utility breached that standard, as the PUC itself has long acknowledged. The trial court therefore did not abuse its discretion by denying CenterPoint‘s plea to the jurisdiction, and we deny its petition for writ of mandamus.
BACKGROUND
Two vehicles were involved in a collision in southern Harris County after the driver of one vehicle ran a red light. The vehicle that ran the light hit a wooden utility pole, causing the pole and the power line attached to it—owned and maintained by CenterPoint Energy Houston Electric, LLC—to fall to the ground. Glenn Wood Higgins was driving near the wreck and stopped to render aid. While walking toward the vehicle, plaintiffs allege that Higgins came into contact with electricity radiating through the ground from the downed power line. The contact knocked his body onto the line, shocking him and catching his clothes on fire. Higgins suffered severe burns and passed away three weeks later.
Higgins‘s family members2 and estate (collectively, plaintiffs) brought wrongful-death and survival claims against CenterPoint in Harris County Probate Court. Plaintiffs asserted causes of action for common-law negligence and gross negligence.3 They alleged that CenterPoint has a duty to design, construct, operate, and maintain its electricity distribution system to de-energize portions of the distribution lines promptly when they experience faults. Plaintiffs asserted that CenterPoint‘s line protection scheme was not prudently designed, and that CenterPoint chose and installed an inappropriately sized fuse. Fuses are placed on power lines to stop the flow of electricity and de-energize the line in the event of a fault. Plaintiffs contended that an appropriate fuse would have de-energized the downed power line in five seconds or less—before Higgins had even exited his truck.
CenterPoint filed a plea to the jurisdiction, contending that the PUC‘s exclusive jurisdiction over an electric utility‘s rates, operations, and services extends to adjudicating whether CenterPoint‘s line-protection measures complied with the law and industry standards. In CenterPoint‘s view, plaintiffs’ complaints regarding fuse size implicate fundamental policy questions about how electric utilities must design, install, operate, and maintain their electric distribution systems. In response, plaintiffs asserted that (1) the
The probate court denied CenterPoint‘s plea to the jurisdiction but stayed further proceedings while CenterPoint sought mandamus relief. CenterPoint filed a petition for writ of mandamus in the court of appeals, which denied relief without a substantive opinion.
ANALYSIS
CenterPoint asserts that the Public Utility Regulatory Act (PURA) gives the PUC exclusive jurisdiction to adjudicate the standard of care applicable to plaintiffs’ tort suit and whether it violated that standard. Under the
When the Legislature has granted an agency exclusive jurisdiction to adjudicate a disputed issue, the agency has the sole authority to make an initial determination regarding that issue, and a trial court lacks jurisdiction until a party has exhausted administrative remedies. Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018). Whether the PUC has exclusive jurisdiction over an issue is a question of statutory interpretation that we review de novo. Id. If the PUC has exclusive jurisdiction, mandamus is an appropriate remedy to correct a trial court‘s denial of a plea to the jurisdiction. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 624 (Tex. 2007).
I. The probate court does not have exclusive jurisdiction to adjudicate plaintiffs’ wrongful-death and survival claims.
We first address plaintiffs’ contention that because the
A statutory probate court has jurisdiction only as provided by statute.
Yet the
Because plaintiffs brought claims for survival and wrongful death, the probate court has concurrent but not exclusive jurisdiction over their claims. See King v. Deutsche Bank Nat‘l Tr. Co., 472 S.W.3d 848, 856 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that section 32.005 “confers on statutory probate courts exclusive jurisdiction over causes of action related to a probate proceeding unless Section 32.007 provides that the action is subject to concurrent jurisdiction in a district court“). Probate court jurisdiction over plaintiffs’ claims is no greater than district court jurisdiction would be. See Shores, 128 S.W.3d at 724 (“A statutory probate court‘s jurisdiction over actions involving trusts is concurrent with that of a district court. Thus, the district court‘s jurisdiction over actions involving trusts determines the extent of a statutory probate court‘s jurisdiction over such actions.“). We therefore conclude that the
II. The PUC does not have exclusive jurisdiction to adjudicate common-law questions of reasonable care that underlie plaintiffs’ claims.
A. PURA defines the PUC‘s exclusive jurisdiction to regulate and to adjudicate.
In determining the PUC‘s jurisdictional scope, it is useful to keep some general principles of administrative law in mind. An administrative agency is “a legislative creation with only those powers expressly conferred and necessary to accomplish its duties.” Chaparral Energy, 546 S.W.3d at 138 (quoting Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 216 (Tex. 2002)). The Legislature may grant an agency power to make rules as well as power to adjudicate disputes. As the Supreme Court of the United States has explained, agencies use rules to regulate future conduct and adjudications to determine past and present rights and liabilities. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218–19 (1988). In other words, “adjudication deals with what the law was; rulemaking deals with what the law will be.” Id. at 221 (Scalia, J., concurring). The governing statute may provide that an agency‘s jurisdiction to make rules has the same scope as its jurisdiction to adjudicate disputes, or those scopes may differ.6 And an agency may be able to address certain issues only (or initially) through rulemaking while others require adjudication.7
CenterPoint argues that plaintiffs’ claims turn on the allegation that CenterPoint failed to comply with PURA and the industry standards it incorporates when it selected fuses for its lines that were too large. According to CenterPoint, these allegations not only complain about CenterPoint‘s “operations” and “services” but also implicate safety, design, and reliability—all matters that the PUC has exclusive jurisdiction to regulate. Therefore, the PUC has exclusive jurisdiction over issues regarding the standard of care applicable to fuse size and whether CenterPoint complied with that standard, and plaintiffs are required to exhaust administrative remedies.
Plaintiffs respond that the trial court properly denied CenterPoint‘s plea to the jurisdiction because (1) under PURA, plaintiffs are not “affected persons” who may initiate complaints at the PUC, so it cannot adjudicate their claims; and (2) neither PURA nor PUC regulations address the matter of fuse size, any general PURA or industry standards that may inform CenterPoint‘s duty are equivalent to common-law negligence standards, and the PUC does not adjudicate compliance with such standards. As in Chaparral Energy, we begin by examining PURA‘s express provisions regarding PUC jurisdiction and then consider the more general provisions of the regulatory scheme on which CenterPoint relies. See Id. at 138–39.
B. Because plaintiffs are not among those who may file a complaint in the PUC, it does not have exclusive jurisdiction to adjudicate any part of their claims.
Plaintiffs contend their claims are outside the scope of the PUC‘s exclusive jurisdiction because they do not qualify under PURA to file a complaint with the agency because they are not “affected persons“; thus, there are no administrative remedies for them to exhaust. CenterPoint disagrees, asserting that PURA‘s text and purpose confirm plaintiffs qualify as parties required to seek relief from the PUC before proceeding in court. We conclude that plaintiffs are correct because none of the issues underlying their claims complain of a statutory or regulatory violation affecting their utility service or rates.
“A state agency has exclusive jurisdiction when the Legislature has granted it the sole authority to make an initial determination in a dispute.” Id. at 138 (cleaned up). As noted above, we begin with the presumption that the trial court is authorized to resolve the parties’ dispute, but that presumption may be overcome by “clear and express statutory language” giving an agency exclusive jurisdiction to adjudicate the matter. Subaru of Am., 84 S.W.3d at 220. We therefore look to PURA to determine whether “the Legislature intended that the PUC determine this type of dispute.” In re Sw. Bell Tel. Co., 235 S.W.3d at 625.
In Southwestern Bell, we grounded our holding that the PUC had exclusive jurisdiction to adjudicate a customer‘s claims against a utility regarding a surcharge in statutes empowering the PUC to adopt review procedures, resolve billing disputes, and require refunds. Id. at 625–26. Here, in contrast, no statutes give the PUC authority to adjudicate any part of the claims brought by plaintiffs.
As discussed above, PURA gives the PUC exclusive jurisdiction over “the rates, operations, and services of an electric utility.”
(A) a public utility or electric cooperative affected by an action of a regulatory authority;
(B) a person whose utility service or rates are affected by a proceeding before a regulatory authority; or
(C) a person who:
(i) is a competitor of a public utility with respect to a service performed by the utility; or
(ii) wants to enter into competition with a public utility.
CenterPoint argues that under subsection (B), plaintiffs qualify as affected persons because they are persons whose “service” is affected by a proceeding they would initiate. It points us to the statutory definition of service: “any act performed and any facilities used . . . in the performance of the utility‘s duties under this title to . . . the public.”
In construing statutory language, “we presume the Legislature chose the statute‘s language with care, purposefully
CenterPoint asserts that any doubt about plaintiffs’ ability to proceed before the PUC is dispelled by the definition of “complainant” in the PUC‘s procedural rules. Complainant is defined as “[a] person, including commission staff or the Office of Public Utility Counsel, who files a complaint intended to initiate a proceeding with the commission regarding any act or omission by the commission or any person subject to the commission‘s jurisdiction.”
Finally, CenterPoint asserts that plaintiffs would be accommodated as affected persons, citing three PUC proceedings that it claims entertained complaints from members of the general public.12 We disagree with CenterPoint‘s characterization of these complaints. In each, the complainants owned land on which the PUC had granted utilities permission to install transmission lines. See
In contrast, the PUC denied a landowner‘s motion to intervene in a City‘s application to amend a Certificate of Convenience and Necessity where the landowner did not meet the statutory definition of an “affected person” under the Water Code. Tex. Pub. Util. Comm‘n, Order No. 6 Denying Interventions, Application of City of Kenedy to Amend Water Cert., Docket No. 48622 (Mar. 1, 2019), 2019 WL 1100065. As CenterPoint notes, the PUC found that it did not have statutory authority to regulate the groundwater rights at issue, but it also denied the motion to intervene, citing the Water Code‘s definition of “affected person.” Id. (citing
For these reasons, plaintiffs’ claims do not fall within the scope of PURA‘s express grant of exclusive jurisdiction to the PUC to adjudicate complaints. As an administrative agency, the PUC has no inherent authority and may exercise only those powers conferred upon it by the Legislature. Pub. Util. Comm‘n v. GTE-Sw., Inc., 901 S.W.2d 401, 406–07 (Tex. 1995). By defining who may file a complaint with the PUC, the Legislature indicated its intent to authorize the PUC to adjudicate complaints filed only by those parties. PURA does not expressly grant the PUC exclusive jurisdiction to adjudicate complaints by those who—like plaintiffs—are not affected persons.
Absent an express grant of jurisdiction, “an agency may also have exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.‘” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Sw. Bell Tel., 235 S.W.3d at 624–25). In Southwestern Bell, for example, we held that a claim regarding a telecommunication utility‘s excessive surcharges fell within the PUC‘s exclusive jurisdiction under PURA‘s pervasive regulatory scheme. 235 S.W.3d at 627. We recognized the PUC‘s exclusive jurisdiction over the claim because the Legislature directed it to adopt a “method for administrative review” as necessary to maintain the universal service fund as well as “rules for the administration of the universal fund.” Id. at 625 (quoting
CenterPoint asserts that PURA‘s pervasive regulatory scheme also applies here, arguing that plaintiffs’ complaints about its fuse-sizing practices and the design of its electrical distribution systems concern its operations and services, which
In evaluating these arguments, we begin with a detailed examination of plaintiffs’ claims against CenterPoint. Those claims are rooted in common-law negligence; plaintiffs nonsuited allegations of negligence per se following a vigorous challenge by CenterPoint. Plaintiffs allege that CenterPoint has a duty to design, construct, operate, and maintain electricity distribution systems, facilities, and instrumentalities that are safe, adequate, efficient, and reasonable. This duty includes the responsibility to act and operate as a reasonably prudent electricity distribution company, comply with law and industry standards (including PURA and the National Electrical Safety Code), and use appropriate safeguards to protect those in proximity to ultrahazardous electrical currents. To comply with its duty, plaintiffs maintain that CenterPoint must design, construct, operate, and maintain its distribution system with a prudent and appropriate line protection scheme, including coordinated use of breakers and fuses to de-energize lines promptly when they experience faults.
Plaintiffs allege that CenterPoint breached this duty by failing to act as a reasonably prudent owner, operator, and handler of the power line, equipment, and electricity, and that its negligence proximately caused Higgins‘s death. Specifically, they allege that CenterPoint‘s line protection
CenterPoint focuses on the allegation that it breached its duty of reasonable care by using an improperly sized fuse, and it cites several statutes and regulations that it says bring the discrete issue of fuse size within the scope of PURA‘s pervasive regulatory scheme. In particular, CenterPoint contends that fuse size is part of CenterPoint‘s “services“—which include its “facilities used” and “act[s] performed“—as well as its “operations,” all of which the PUC has exclusive jurisdiction to regulate.
CenterPoint also points to statutes and regulations setting general standards that could be applied to the issue of fuse size. It cites Utilities Code section 38.001, which requires an electric utility to “furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and reasonable,” as well as the PUC‘s regulatory requirement that a utility “construct, install, operate, and maintain its . . . lines in accordance with” the standards of the National Electrical Safety Code.
We agree with CenterPoint that plaintiffs’ claims are about CenterPoint‘s operations,13 and that the issue of fuse size is one the PUC has exclusive jurisdiction to regulate under section 32.001. But as we explain below, the PUC has not exercised this jurisdiction: there is neither a law administered by the PUC nor a PUC order or rule that regulates fuse size prospectively, so there can be no complaint that CenterPoint violated any such standards in selecting the fuses at issue. See
Duties imposed by government regulation may in some cases supplant common-law duties as the standard for tort liability. See W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS § 36 (5th ed. 1984). But “[w]e have consistently declined to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent.” Cash Am. Int‘l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (applying this rule to reject exclusive agency jurisdiction); see also Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015). And it is for a court—not the PUC—to decide whether the common law or statutes and regulatory actions provide the duty by which an electric utility‘s tort liability must be judged.
As CenterPoint correctly argued in resisting plaintiffs’ claim of negligence per se in the trial court, PURA and PUC regulations do not clearly displace its common-law duty to operate as a reasonably prudent electricity distribution company. The statutes and regulations say nothing about fuse size; they require only that utilities act safely and reasonably.15 Statutes and regulations generally requiring a party to act safely or reasonably do not substitute a legislatively imposed standard of conduct for the reasonable-person standard of common-law negligence. E.g., Entex, a Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 11, 8–9 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (concluding statute requiring gas utility to furnish facilities that are “safe, adequate, efficient, and reasonable” did not impose different duty); Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 271 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding that common-law negligence standard is read into statute imposing duty to act “safely“).
CenterPoint‘s own evidence in the trial court confirms that industry practice—not a regulatory scheme—informs its duty with respect to fuse size. CenterPoint‘s expert testified in an affidavit that the National Electrical Safety Code “does not specify how utilities should design or operate their distribution system protection schemes,” nor does it “direct an electric utility how to select or size fuses . . . to protect the electrical distribution system.” Rather, CenterPoint “has the right to determine its own system protection philosophy and how it selects its system protection devices.” The expert also testified that “[w]hen and where to use fuses for laterals is up to the individual designer and there are no hard and fast rules,” and that the “design, application and operation of CenterPoint‘s distribution line protection system complied with accepted good practice within the industry.”
In sum, as CenterPoint put the matter in its motion for summary judgment, “the PURA provisions do not set out with sufficient clarity the ‘standard of conduct’ to which CenterPoint Energy would be held.” Statutes and regulations that are consistent with common-law standards do not indicate that the Legislature intended to grant an administrative agency the exclusive
The PUC also lacks exclusive jurisdiction to determine whether CenterPoint complied with the common-law standard of care in this case. By its own acknowledgment, the PUC lacks “the authority to make common-law determinations” or “adjudicate contract claims and torts,” and instead “makes regulatory determinations regarding whether a utility violated PURA, Commission rules, and tariffs.” 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; see In re Oncor Elec. Delivery Co., ___ S.W.3d at ___. As the PUC sees the matter, its regulatory determinations “might inform a court on aspects of claims within the court‘s jurisdiction.” Tex. Pub. Util. Comm‘n, Order at 2, Complaint of Giovanni Homes, Docket No. 45854. But “[t]he Legislature has not conferred on the Commission any general authority to preside over tort actions.” Tex. Pub. Util. Comm‘n, Preliminary Order at 5, Complaint of Sloss Against AEP Tex. Inc., Docket No. 50284 (Apr. 17, 2020), 2020 WL 1973315. In fact, “[t]he Commission has repeatedly stated that it does not have statutory authority to generally adjudicate contract claims and torts or award damages.” Tex. Pub. Util. Comm‘n, Amended Preliminary Order at 12, Complaint of Vinson Against Oncor Elec. Delivery Co., Docket No. 40953 (May 21, 2013). Thus, the PUC found that a question regarding CenterPoint‘s negligence in another case was outside the scope of the proceeding because “[t]he Commission does not have jurisdiction to adjudicate private tort . . . disputes.” 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.
We agree with the PUC. Nothing in PURA gives the PUC “jurisdiction to administer” the common law.
CenterPoint asserts that the standards in the tariff generally inform its duties. We agree. See First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 492 (Tex. App.—Dallas 2001, no pet.) (“Texas courts examine the language of the tariff to determine if a duty exists.“). But there are no requirements in CenterPoint‘s tariff that would apply to the issue of fuse size other than a general standard of care, which does not supplant the common-law standard as we have explained. We see no indication that the Legislature intended the PUC to resolve issues based on a tariff where no tariff provisions alter the applicable legal standards. Cf. Chaparral Energy, 546 S.W.3d at 142 (holding that the PUC had exclusive jurisdiction over a breach-of-contract case that could not “be resolved without considering and construing [the utility‘s] PUC-approved tariff“). In addition, any “defense that [a] tariff might limit [a utility‘s] liability does not create [PUC] jurisdiction.” In re Oncor Elec. Delivery Co., ___ S.W.3d at ___. We therefore hold that PURA‘s comprehensive regulatory scheme does not deprive the trial court of jurisdiction to adjudicate any issues raised by plaintiffs’ suit.18
CONCLUSION
For these reasons, neither PURA‘s express provisions nor the nature of its regulatory scheme demonstrates that the Legislature intended the PUC to have exclusive jurisdiction over any issues underlying this common-law negligence dispute. The trial court did not abuse its discretion by denying CenterPoint‘s plea to the jurisdiction, and we deny CenterPoint‘s petition for writ of mandamus.
J. Brett Busby
Justice
OPINION DELIVERED: June 30, 2021