TEXAS-NEW MEXICO POWER COMPANY, Petitioner, v. TEXAS INDUSTRIAL ENERGY CONSUMERS, Respondent.
No. C-9953.
Supreme Court of Texas.
April 3, 1991.
With its enactment of section 328(b), the legislature has established an appropriate procedure for determining the substantive rights of debtors and creditors in a situation such as this. The advantages of section 328(b) are manifest. By requiring notice and a hearing, section 328(b) ensures that the representative of an estate will have a fair opportunity to assert substantive rights. And by providing for personal liability, section 328(b) also ensures that a judgment creditor may have redress for misuse of estate funds. The turnover procedure, in contrast, is “purely procedural in nature,” and is not amenable to the determination of substantive rights. Steenland v. Texas Commerce Bank, 648 S.W.2d 387, 390 (Tex.Civ.App. —Tyler 1983, writ ref‘d n.r.e.).
A court should not permit a party to bypass an established statutory procedure by way of the turnover statute. See Cravens, Dargan & Co. v. Travers Co., 770 S.W.2d 573, 577 (Tex. Civ.App.—Houston [1st Dist.] 1989, writ denied). In most instances, as in this case, the turnover statute will prove wholly inappropriate for resolving substantive disputes.
W. Mike Baggett, Jack M. Rains, Jeff Joyce, Wayne W. Bost, Dallas, Michael G. Shirley, Phyllis B. Schunck, Austin, for petitioner.
Louis S. Zimmerman, Bruce Morris, Austin, Jonathan Day, Alton J. Hall, Russell C. Shaw, Houston, Cathy Lee Jordan, Austin, for respondent.
DOGGETT, Justice.
In this appeal, we consider whether an order of the Public Utility Commission of Texas (PUC) conditionally approving a certificate of convenience and necessity for construction of a power plant was final and appealable. Agreeing with Texas Industrial Energy Consumers (TIEC) that the order lacked finality, the trial court dismissed the administrative appeal for want of jurisdiction. The court of appeals affirmed. 786 S.W.2d 795 (1990). We reverse the court of appeals and remand to the trial court for further proceedings.
In 1986, Texas-New Mexico Power Company (TNP) filеd an application seeking a certificate to construct a multi-unit power plant. In its order of approval, the PUC imposed the following restrictions:
- The application filed by Texas-New Mexico Power Company (TNP) for certificatiоn of four units of an electric generation station in Robertson County, Texas is APPROVED as conditioned in Paragraph No. 2 below.
- TNP‘s certificate is conditional upon: (1) the execution of a change order between TNP and the consortium as provided in Artiсle 8 of TNP Ex. 18, providing design changes to allow for the use of western coal as a fuel in the Robertson facility; and (2) the receipt by TNP or the consortium of all necessary permits from other state and federal agencies necessary for the сonstruction and operation of the Robertson facility. TNP shall file notice with the Commission‘s1 general counsel of its compliance with the conditions stated above.
Tex. Public Util. Comm‘n, Application of Texas-New Mexico Power Company for Cеrtification of a Lignite Fired Electrical Generation Station in Robertson County, Texas, Docket No. 6992 (August 17, 1987). Although this action authorized four units, TNP subsequently decided to build only two and obtained a conforming amendment to the certificate.1
According to the court of appeals, the absence of “the necessary permits from the other agencies” and the inability “to know when, and if, [TNP] would succeed in obtaining the approval of those agencies” made the PUC order conditional and thereforе nonfinal and unappealable.2 786 S.W.2d at 796-97. The underlying rationale that “an administrative order is not final if rights conferred therein are made contingent upon the occurrence of some future event” is overbroad. Id.3 Indeed, we have previously recognized that the presence of a condition in an order does not automatically destroy its finality. Big Three Indus. v. Railroad Comm‘n, 618 S.W.2d 543, 548 (Tex.1981) (determining as final an order conditioned upon the outcome of an unresolved related case); see also Browning-Ferris, Inc. v. Johnson, 644 S.W.2d 123, 127 (Tex.App.—Austin 1982, writ ref‘d n.r.e.); Walker Creek Homeowners v. Texas Dep‘t of Health Resources, 581 S.W.2d 196, 198 (Tex.Civ.App.—Austin 1979, no writ).
An examination of the process for obtaining one of the permits upon which the Commission conditioned TNP‘s certificate reveals a potentially impossible Catch-22
Shuffling citizens in such an endless, inefficient circle from one agency to the next in search of permits, licenses, and stamps of approval that cannot be issued until some other office acts represents government at its worst. Businеsses ensnarled in such bureaucratic traps cannot provide the productive force so vital to our state‘s prosperity. Government and business cannot work together when pointless delays stifle the very flame of initiative the law was designed to nurture. We must not have the type of cumbersome government that an earlier generation described as leaving its citizens “[s]kewered through and through with officepens, and bound hand and foot with red tape.” C. Dickens, David Copperfield 606 (Dodd, Mead, & Co. ed. 1936).
A more pragmatic and flexible apрroach must be employed to evaluate the finality of an agency‘s order. This requires recognition of the need both to minimize disruption of the administrative process and to afford regulated parties and consumers with an opportunity for timely judicial review of actions that affect them. Although there is no single rule dispositive of all questions of finality,5 courts should consider the statutory and constitutional context in which the agency operates, and should treat as final a decision “which is definitive, рromulgated in a formal manner and one with which the agency expects compliance.” 5 J. Stein, G. Mitchell & B. Mezines, Administrative Law 48-10 (1988). Administrative orders are generally final and appealable if “they impose an obligation, deny a right or fix some legal relationship as а consummation of the administrative process.” Sierra Club v. United States Nuclear Regulatory Comm‘n, 862 F.2d 222, 224 (9th Cir.1988).
In reviewing the statutory context in which the instant order was issued, we note that the Texas Public Utility Regulatory Act (PURA) balances the important objective of protecting consumers from monopoly powеr with the demand for stability required to attract the large amounts of investment essential to dependable utility service.
The nature of this certification process highlights both the necessity and advantages of a conditional approval. By requiring the subsequent receiрt of all necessary
By recognizing this conditional certification as final, the court has not, as TIEC further contends, removed consumers’ important right to challenge utilities. The certificatе of convenience and necessity affords only a right to begin construction, not a guarantee that every inefficient or imprudent expenditure will be passed on to the consuming public. When a new installation begins supplying service, the PUC must still determine what portion of the investment is properly chargeable to ratepayers with the burden of proving “the prudence and reasonableness of [each element of] its expenditures” firmly fixed on the utility. Coalition of Cities v. Public Util. Comm‘n, 798 S.W.2d 560, 563 (Tex. 1990). Hence ratepayers such as TIEC are affоrded safeguards as the Commission establishes “just and reasonable” rates in accord with the statutory factors.
According finality to an order cоntaining the conditions involved in this particular statutory setting allows both a regulated interest and consumers such as TIEC to deter any potential abuse of government power by seeking timely, preconstruction judicial review. A contrary holding would insulate from prompt, independent scrutiny an administrative body that retained jurisdiction by indefinitely making its decision subject to the most minor condition.
We believe that paragraph one of this formally promulgated order underscores its definitiveness: the PUC “APPROVED” TNP‘s application for a certificate; albeit “as conditioned” in paragraph two. This explicit approval is final and the conditions do not diminish or eliminate its effect. Reflecting the consummation of six weeks of administrative hearings, the certificate impоsed a clear obligation on the utility and fixed its legal relationship. Certainly the PUC expected TNP‘s compliance with the order, and it was statutorily empowered to compel that compliance through an enforcement action under
Undеr these circumstances, we hold that the PUC‘s 1987 order approving the certificate of convenience and necessity as to units one and two was final and appealable. We reverse the judgment of the court of appeals and remand this cause to the trial court for consideration on the merits.
MAUZY, Justice, concurring.
I concur in the Court‘s holding that the 1987 order was final and appealable. That order purported to establish the parties’ rights and obligations, and was immediately enforceable. In such circumstances, the right to seek judicial relief should not depend upon the vagaries of future governmental action. See Sierra Club v. United States Nuclear Regulatory Comm‘n, 862 F.2d 222, 225 (9th Cir.1988).
The right of immediate appeal is especially important as to proceedings involving public utilities. Given the publiс interest at stake, courts must approach such proceedings in a spirit of pragmatism, rather than dogmatism. In this case, pragmatism called for prompt review of the PUC‘s 1987 order.