*1 any marijua- warrant authorized seizure of apartment, marijuana
na in the found apartment apartment and not the being subject
itself of the affiant’s probable
statements fact from which issuing magis-
cause was inferred
trate. being
There no claim that the was search reason, any other hold the
invalid for we suppressing
trial court erred its order dwelling; seized evidence in the
remand the causes to trial court for opin-
proceedings not our inconsistent with
ion.
TEXAS ASSOCIATION OF LONG DIS
TANCE TELEPHONE COMPANIES
(TEXALTEL), Appellant,
PUBLIC UTILITY COMMISSION OF
TEXAS, Appellee.
No. 3-89-225-CV. Texas, Appeals
Court
Austin.
Nov. *4 Long Distance
The Texas Association of (“TEXALTEL”) ap- Telephone Companies peals judgment from a of the district court affirming appellee, an order of the Public (“PUC”). Utility The PUC’s Commission pro- order for services increased T vided AT & Communications (“AT T”), including area Southwest & wide (“WATS”). telecommunications service judgment We will affirm the of the district court. January
Docket No. 6095 was initiated response application to AT T’s & rates, rates, including WATS increase application million. The was $123.4 4, 1985, April request a rate amended on million. increase of Pursuant $139 43(d) Regulatory of the Public Utilities (PURA), Act Tex.Rev.Civ.Stat.Ann. art. subsequently (Supp.1990), 1446c *5 suspended proposed AT T’s rates. As a & pending hearings, suspension result of 23, period through was October extended 1985, voluntarily AT T and thereafter & period suspension extended the until March 2, 1986. 7, 1986, February
On the PUC ordered totalling As rate increase million. $55.1 increase, part order of this rate PUC’s AT T to increase overall WATS directed & approximately percent over then- recognizing existing rates. While that this even increase would not be sufficient McDaniel, Bickerstaff, Bond, Myra Katie recoup AT T to all of its costs to enable & Austin, Smiley, appellant. Heath & for service, its WATS the PUC associated with Mattox, Gen., Baron, Atty. Jim Steve W. that, in order to avoid severe determined Gen., McCullough, Attys. R. Scott Asst. impact, customer customer no individual Botts, Austin, Davis, II, Baker Steven & a rate increase of more than should receive appellee. for T percent. The AT & to PUC ordered twenty days, to file revised tariffs within CARROLL, Before JONES and EARL filing twenty days after be effective SMITH,* W. JJ. approval by staff. upon the PUC sooner FOR REHEARING ON MOTION 10, 1986, T filed February AT & On JONES, Justice. tariffs, tariff. including a WATS proposed rejected by proposed tariff was The WATS Sep- opinion issued this Court on on March 1. 1990, Hearings Division 19, withdrawn, the PUC’s and the tember proposed 5, AT & T filed another following is filed in lieu thereof. On March * Smith, (1988). (retired), Ann. 74.003 Third Tex.Gov’t Code Before Earl W. Justice sitting by assignment. Appeals, See Court of 11,
WATS
March
tariff. On
the PUC is-
MOTION TO STRIKE BRIEFS
ruling
sued an order
on motions for rehear-
TEXALTEL has
a motion in
filed
ing and amending
February
7 order.
this Court to strike the
of AT & T
briefs
Among
things, the March 11
other
order
SPGSC,
pur
and the
which those entities
apply any
stated that AT T could
&
WATS ported
appellees. Following
file
to
as
approved by
tariff
the staff on or after
court,
dismissal of their claims in the trial
prior April
March 27 and
to
27 to service neither AT
T nor
&
the SPGSC retained
provided on
April
or after
1. On March
any pleaded
contrary
claim or interest
to
Hearings
rejected
the staff of the
Division
TEXALTEL vis-a-vis TEXALTEL’s action
tariff,
against
AT
T’s
proposed
&
second
WATS
the PUC.
order to have created
whereupon
protected
T filed with
an and
parties
AT &
their
ad
status as
TEXALTEL,
petition
verse to
emergency
seeking approval of the
AT
T and
&
contrary
SPGSC should have
proposed
asserted their
WATS tariff that had been filed
5;
plea
or interest
way
claims
of a
petition
requested
on March
also
intervention
TEXALTEL’s suit before
rehearing
for
PUC
consider motions
actions,
by replead-
consolidation
response
filed in
to the March 11 order.
ing
Having
consolidation.
failed
after
April
On
the PUC met
consider AT &
either,
do
the trial court’s dismissal of their
petition.
day, following
T’s
That same
against
left
them
claims
as
which,
hearing, the
PUC issued an order
Ac
strangers to the consolidated cause.
granting
rehearing
addition to
on the
appeal
enti
cordingly,
they
in this
were not
accuracy of certain
on
numbers
which
tled
We there
appellees.
to file briefs as
of AT
had
level
T’s new rates
been based
&
fore
grant TEXALTEL’s motion
strike.
order,,
February
in the
also directed that
pursuant
Tex.R.
Rule
approved
AT & T’s
tariff be
effec-
WATS
App.P.,
fully
have
con
received
April
tive
sidered both briefs
amicus curiae. Cf.
yet
The PUC
issued
another order
later
City
Pub. Co. v.
Houston Chronicle
July 28 in
it found
on
which
that the Febru-
(Tex.Civ.
Houston,
177, 182
$16,477
ary 7 order contained a
overstate-
n.r.e.,
App.1975),writ ref’d
881 tion’s PURA 38 instead of view. The Administrative Procedure & reference to § (“APTRA”) Register provides misleading prevent Texas Act 43 so to to be § that, emergency in the except deciding change case of or- to from PUC from —or agency, an “a ders issued motion for to defend—its action. There- preparing appeal.” rehearing prerequisite fore, give is a to an motion sufficient to was 6252-13a, art. Tex.Rev.Civ.Stat.Ann. to jurisdiction and this Court district court 16(e) prerequisite (Supp.1990). This points first of TEXALTEL’s two consider jurisdictional and cannot be waived ac- error. Lindsay parties. Sterling,
tions
v.
560,
(Tex.1985).
690 S.W.2d
APTRA
RATEMAKING
RETROACTIVE
require
has been
to
that motion
construed
“sufficiently
rehearing be
definite
for
1. General standards.
agency
apprise
regulatory
error
points
first
two
TEXALTEL in its
agency opportuni-
to allow the
claimed and
engaged
ret-
argues
error
that the
to prepare
the error or
ty to correct
ratemaking.1
argu-
roactive
TEXALTEL’s
PUC,
Cory. v.
defend it.” Suburban Util.
imply
regulatory
ment seems to
that a
(Tex.1983);
see also
agency may
a retroactive effec-
never set
Agency,
Educ.
Burke v. Central
change.
simply is
tive date for a rate
That
(Tex.App.1987,
ref’d
S.W.2d
writ
not the law.
v.
See Railroad Comm’n
n.r.e.).
Co., 656
Lone
Gas
S.W.2d
425-27
Star
rehearing,
In its
for
TEXALTEL
motion
(Tex.1983);
Tel.
Southwestern Bell
Co.
“setting
asserted that
PUC’s action
PUC,
(Tex.Civ.App.),
mitted
agency’s jurisdiction
Southwestern
attaches to a rate
Bell, 615
premise
S.W.2d at 953. The basic
(e.g.,
existing
when
validity
an
rate’s
underlying
prohibition
against retroac
formally
question),
called into
presump
tive ratemaking
setting
vanishes,
is that the
utility
tion of validity
and no one can
legislative function,
rates is a
if
even
continue to
right
car
claim to have a vested
in
ried
out
agency;
Gas,
administrative
the rate. See Lone
656
Star
S.W.2d
therefore,
rates,
utility
426;
like any
legis
other
Rights
at
Texas Water
Comm’n v.
lation, generally can
only prospective
Dallas,
609,
(Tex.
have
City
591
614
S.W.2d
application
n.r.e.).
recoup Civ.App.1979,
cannot be used to
writ ref’d
The consti
gains
losses
prior legal
prohibition
incurred under
against
tutional
retroactive
I,
(1984);
ratemaking
rates.
apply
Tex.Const.Ann. art.
therefore does not
when
§
regulatory agency
see Railroad
'n
Comm v. Houston Natural
establishes an effec
502,
Corp.,
Tex.
Gas
this definition necessitates conclusion stops at agency’s authority rate-fixing over of fixing that an order the level revenues determining company’s of approving not a tariff cannot but be con requirements. On the overall revenue “fixing the order level of rates.” given duty trary, expressly PUC is insuring just reason responds of that rates are The PUC that under Texas Gas, of re holding no class consumers Supreme Court’s in Lone Star able preju unreasonably preferential, discretion ceives it had the to set dicial, discriminatory treatment. PURA any date after it ob the effective date to requires duty of this 38. The fulfillment jurisdiction tained over the rate. § and, tariffs the PUC to review submitted need not this issue because wé address addition, the PUC to direct the authorizes determining the “level of conclude tariffs, 43(f) utility, filing allocate burdens as used in does not rates” PURA § consumers in a manner approval specific tariffs. between classes include Cf. PUC, agency. prescribed Signal Alarm & Ass’n v. Texas (use (Tex.1980) n. 6 mean, however, that That does now-repealed in a version PURA “rate” re fixing “level of rates” the “order” and not to 40 refers to overall revenues § 43(f) necessarily con quired PURA § structure). such of tariffs before templates approval Section 43 of may effective. become Generally, the determination procedures for effectu charge PURA establishes utility may involves what rates requested by in rates ating an increase first, of revenues steps: the amount three in re determinative order utility. receive from entitled to that the is, logically, determined; second, request sponse to such a services must be all revenues; it is (i.e., level of setting order revenues the level sources these util whether the provide) that order that determines will must each service of revenue Hence, third, request granted or denied. determined; specific ity’s directing PUC to we conclude that charges consumers classes to individual 43(f) rates, does PURA fix must the level specific for services consumers *9 design approve not direct the PUC change rate has requested When a be set. 884 Rather, 43(f)
tariffs.
section
directs the
twenty days
effective on the earlier of
af-
determine,
order,
by
PUC
utility’s
filing
the
they
approved by
ter
or when
were
and,
overall
appropri-
staff;
revenues
if deemed
the
provided
the March 11 order
that
ate,
general
design. Therefore,
the
April
the tariffs would become effective on
43(f)
prohibit
PURA
did not
the
they
PUC 1 if
approved by
were
staff
§
the
on or
setting
from
effective date of a
26,
new before April
the
1986. Neither order re-
quired
as far back as the date of such
rate at least
contemplated
even
the issuance
subsequent
Because the effective date estab-
order.
of a
implement
order to
the
by
present
lished
the PUC in the
case was
new tariffs. That the PUC did in fact issue
(the
determining
order)
the date of the order
April
a formal order
approv-
9
after
revenues,
ing
level of
the PUC’s action did not
the tariffs was
happenstance,
mere
ne-
43(f)
violate
express rejection
PURA
and did not constitute
cessitated
§
ratemaking.
Hearings
retroactive
tariffs
Division staff.
Thus, it is clear that the PUC considered
Moreover, the PUC must have
February
both the
7 and March
orders
determining
some
in
discretion
when an
rates,
fixing
to be orders
the level of
as
fixing
order constitutes an order
the level
43(f).
phrase
is used in PURA
§
of rates.
v.
See PUC
Pedernales Elec.
per-
PUC’s determination on that issue is
Inc.,
214,
Coop.,
(Tex.App.
678 S.W.2d
suasive.
1984,
n.r.e.) (“The statutory
writ
ref’d
scheme
for the determination of
argues
TEXALTEL also
complex;
subject
rates is
matter
allowing the PUC to set the effective date
highly
dependent
agency
technical and
on
prior
of the new rates to a date
to the
matters.”).
in
discretion
various
The con
approval of tariffs is unfair to consumers
temporaneous
deprives
opportunity
construction of a statute
because it
them of the
charged
agency
the administrative
with its
plans.
be
to make alternative
“great
43(f)
enforcement is said to be entitled to
cause we have decided that PURA §
weight,”
long
so
as the construction is rea
prohibit
setting
does not
PUC from
“plain
prior
approv
sonable
does not contradict
effective date to a date
statute;
language”
particular
tariffs,
of the
this is
alleged
al of the
this
unfairness
ly true when the statute
of its
because
not relevant to whether
PUC exceeded
complexity
ambiguous.
Rather,
statutory authority.
any
See
un
Stanford
Butler,
142 Tex.
181 S.W.2d
resulting
setting
from the
of an
fairness
(1944);
PUC,
Bell Tel. Co. v.
only
Southwestern
date is relevant
to the consid
effective
(Tex.App.1988,
745 S.W.2d
writ
abused its
eration of whether the PUC
denied);
Co.,
discretion;
PUC v. Texland Elec.
of its discre
within the confines
(Tex.App.1985,
tion,
writ ref’d
competing
proper
balance between
n.r.e.);
Ann.
setting
see also Tex.Gov’t Code
effective date of a
concerns in
311.023(6) (1988).
by the
changed rate must be determined
§
Gas,
at
PUC. See Lone Star
case,
present
obviously
In
PUC
bring
425-26. TEXALTEL does
February
both the
7 order
considered that
complaining that the PUC
point of error
11 order constituted orders
and the March
Therefore, that issue
abused its discretion.
fixing the
of rates. The terms of
level
TEXALTEL’s second
is not before us.
anticipat-
that the
both orders indicate
point of error is overruled.
ed that no further orders of the PUC would
rates;
necessary
implement the new
43(f).
as used in PURA
“Order”
AT
T
file
both orders directed
& to
new
error, TEX-
“revised in accordance with the
its first
tariffs
“order,”
orders,
argues
ALTEL
that the term
guidelines
rates and
set out”
43(f),
final and
used in
means a
and directed the PUC staff to review
PURA §
order,
they
appealable
and therefore
new tariffs to see that
were
accord-
setting
effective date
February
orders. The
7 or-
erred
ance with the
became
case
would
tariffs before the contested
provided
der
that the tariffs
become
*10
order).
brief,
Certainly,
appealable.
(e.g.,
temporary
As
forth in
rate
set
TEX-
a
of
fixing the level
argument
an order of the PUC
ALTEL’s
follows:
design crite-
establishing
revenues and
“by
fix
By requiring the
to
rates
did,
ria,
7,1986,
“a
February
order
as the
order,”
defining
“order” as a “final
and, there-
part
disposition”
of the final
matter,”
disposition
by requiring
in a
and
fore,
foregoing
within the
is an “order”
“final
that rates be
“after” the
observed
definition.
matter,”
disposition
Legislature
in a
the
Furthermore,
of PURA
the structure
pro-
the
clearly intended
rates be fixed
read-
support
does not
such a narrow
§
ap-
spectively from the PUC’s
and
final
ing
goals
of
PURA
“order.” One of the
of
pealable order.
re-
timely implementation
43 is the
of
§
(Emphasis added.)
TEXALTEL’s
Under
period,
During
suspension
vised rates.
the
argument, since there was no final and
provides
temporary
statute
rates
the
for
appealable
re-
order until all motions for
43(d))
43(e))
(§
(§
pro-
and bonded rates
to
hearing were
on November
overruled
utility against delays
the
admin-
tect
the
rates
not
made
the new
could
be
lag.” How-
process “regulatory
istrative
—
prior
that
effective
to
date.3
ever,
inter-
provide
does
for
the statute
argument
TEXALTEL’s
suspension period ends.
im rates after the
“order,”
PURA, means
the term
as used in
Rather,
utility’s
are
proposed
the
rates
appealable
final
on the
a
and
order
based
approved” in such circumstances.
“deemed
in PURA
definition of “order” set out
43(d).
PURA §
3(p):
§
foregoing
to
conclu
The
leads
the
part
means the
or a
“Order”
whole
re
legislature
for
sion that the
intended
affirmative,
disposition,
final
whether
vised
to made effective before
negative,
injunctive,
declaratory in
fixing
order
the level
rates has become
form,
regulatory authority
administratively
po
final. If TEXALTEL’s
rulemaking,
in-
other than
matter
but
correct,
to
sition
the PUC would have
were
cluding
conve-
issuance
certificates of
produce
appealable
final
order dur
necessity
ratesetting.
nience and
ing
suspension period in order to avoid
reading
TEXALTEL’s
of the definition of
potential injustice to
complication and
“order” is too narrow. An “order” under
utility’s
having
proposed
consumers
“the
final
part
PURA is
whole
produce such
approved.
rates deemed
To
added.)
disposition.” (Emphasis
This defi-
period,
during
suspension
an order
require
nition does not even
that an order
forced
reach its initial
PUC would be
order),
(i.e.,
resolve all issues
be a final
with unreasonable
rate determination
haste,
appealable
limiting
much less that it be an
order.
the amount of consideration
for
appar-
to motions
given
PURA definition
order would
to the issues and
increasing
likelihood
ently
interlocutory
rehearing,
an
order
include even
raising
peril
only
agency
finds that "an
We read TEXALTEL’s
of error as
if
imminent
(whether
health, safety,
requires
the PUC was
public
a retroactive date issue
precluded by
or welfare
setting
from
the effective
PURA
AP-
of a final decision order."
immediate effect
adminis-
Water,
date
a date before the order became
16(c);
v.
TRA
see also Consumers
Inc.
§
final)
tratively
implementation issue
and not an
PUC,
(Tex.1987) (Commission
be the including impact large rate increases would have on the INCREASE 145% LIMITATION (“rate-shock”). utility’s customers PURA error, point its third TEXAL- 2, 18(a). Here, expressly stat §§ TEL contends that the PUC erred in autho design ed that of the rate structure rizing AT & T to increase WATS rates to primary was based on two considerations: certain by customers because “there 145% (1) recovery of proportionate revenues is no evidence in the record to support a service, (2) providing the costs of and increase and therefore 145% said increase impact.5 customer is in authority excess of the PUC’s and arbitrary constitutes capricious ac The balance struck between tion.” TEXALTEL makes two discernible primary these two considerations is a fun arguments (1) under this of error: policy delegated damental choice support that there is Finding no evidence to agency. Communications, AT T 777 & of Fact finding No. and therefore the (“As long S.W.2d at 366 as the commission evidence; supported by is not substantial by addresses the rate considerations set (2) that the rates set are PUC [PURA], particular factors and the “just reasonable,” not and that this weight given to be those factors are within independently Court can determine that the commission.”). the discretion of the high PUC has ordered an unreasonably agency implement could choose to such a rate increase. policy through choice APTRA’s formal Finding of Fact No. 136 in the PUC’s rulemaking procedure. in bal 7, 1986, February order states: ancing potentially competing policy consid impact, To avoid severe customer the ad- erations, can, under certain condi ditional WATS revenues should be ob- tions, implement policy choose to its choice by requiring tained no customer to re- on an ad hoc basis. See Southwestern ceive a rate increase of than more 145 Bell, 926; 745 S.W.2d at Madden v. Texas percent. Examiners, Chiropractic Bd. argument The thrust of TEXALTEL’s is (Tex.App.1983, ref’d writ that there is no evidence—and therefore no n.r.e.); Deffebach, State Bd. Ins. v. support substantial evidence—to the PUC’s n.r.e.); (Tex.App.1982, S.W.2d794 writ ref’d a conclusion that increase would 145% Beal, Rulemaking: see also Ad Hoc Texas impact. avoid severe customer (1989). Style, Baylor L.Rev. 101 An ad given agency hoc “rule” is an
The PUC is
broad discretion
statement
design utility’s
interprets, implements,
prescribes
rate
agen
structure. PUC v.
Beal,
AT
T
cy
policy.
& Communications
the South-
law or
supra at 105 n. 22.
4. We
ports
do not undertake
decide whether the
the PUC’sdecision to raise rates for some
authority
require
145%,
PUC has the
ap-
WATS customers
and TEXALTEL
between,
hand,
refund the difference
rates
on
one
challenge
parently
part
does not
this
initially
fixed
PUC but later reduced
Rather,
finding.
gravamen
of TEXALTEL’S
and,
hand,
rehearing
on
on the other
motion for
point of error is that there is no evidence to
finally approved.
the rates as
support the
that a 145% in-
PUC’s conclusion
impact.
crease would not cause severe customer
Initially,
we note that as to the first considera-
recovery
amply sup-
of costs—the record
tion —
Powers,
(Tex.1980);
Here,
Agency
see also
determination
PUC’s
(1990).
162-63
Adjudications
increase in rates would
that a 145%
impact
customer
severe
can
cause
argues that
TEXALTEL also
implementation
policy
as the
viewed
independently evaluate the
this Court can
such,
using
hoc
an ad
method. As
choice
“just
PUC’s
increase to see if it
inquiry
judicial
on
the relevant
review
argument,
support
reasonable.” In
agency’s policy
choice
not whether
TEXALTEL cites us to State v. Southwest
*12
evidence,
by
but
supported
substantial
Co.,
(Tex.
Bell
526
526
ern
Tel.
S.W.2d
arbitrary
capri
the choice
was
whether
1975),
Supreme
in which the Texas
Court
Bell,
at
cious. Southwestern
the “determination of whether
stated that
926;
2;
Madden,
reviewing judgment court to substitute its agency
for that of questions as to Medical,
fact. Charter
Therefore, we pre- conclude that we are independently assessing
cluded from just
whether issue here are
reasonable. TEXALTEL’s third
error is overruled. judgment of the district court
affirmed. *13 COMPANY,
LONE STAR GAS et al., Appellants,
The RAILROAD COMMISSION OF
TEXAS, al., Appellees. et
No. 3-88-012-CV. Texas, Appeals
Court of
Austin.
Nov.