Electric Reliability Council of Texas, Inc. and William L. "Bill" Magness v. CPS Energy ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
June 24, 2021
No. 04-21-00242-CV
ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness,
Appellants
v.
CPS ENERGY,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2021-CI-04574
Honorable Solomon Casseb, III, Judge Presiding
No. 04-21-00244-CV
IN RE ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness
Original Mandamus Proceeding1
ORDER
On June 15, 2021, Electric Reliability Council of Texas, Inc. and William L. “Bill”
Magness (collectively, “ERCOT”) filed an interlocutory appeal, and it was assigned Cause
Number 04-21-00242-CV. That same day, ERCOT filed a petition for writ of mandamus, and it
was assigned Cause Number 04-21-00244-CV. Both cases challenge the trial court’s order
denying ERCOT’s plea to the jurisdiction. The petition for writ of mandamus also challenges
the trial court’s order denying ERCOT’s amended motion to transfer venue. In its petition,
ERCOT asserts that the petition and the interlocutory appeal present largely identical arguments,
1
This proceeding in Cause No. 04-21-00244-CV arises out of Cause No. 2021-CI-04574, styled CPS Energy v.
Electric Reliability Council of Texas, Inc. and William L. Magness, pending in the 285th Judicial District Court,
Bexar County, Texas, the Honorable Solomon Casseb, III presiding.
and it requests that we consolidate the two proceedings for decision for the sake of efficiency.
On June 22, 2021, ERCOT filed a motion to consolidate, in which it further states its argument
for consolidation. ERCOT notes in its motion that CPS Energy, the appellee in Cause Number
04-21-00242-CV and the real party in interest in Cause Number 04-21-244-CV, is opposed to the
motion. We ORDER CPS Energy to respond to the motion to consolidate on or before June
28, 2021. See TEX. R. APP. P. 10.3(a)(3).
On June 21, 2021, CPS Energy filed an “Emergency Motion for a Temporary Order to
Extend Temporary Restraining Order and For Expedited Consideration” in Cause Number 21-
242-CV. The motion references a “Second Agreed Extended Temporary Restraining Order,”
entered by the trial court, which states that the prohibitions stated in that TRO expire on June 25,
2021. CPS Energy argues in its emergency motion that the expiration of the TRO is
automatically stayed during the pendency of the interlocutory appeal, but “out of an abundance
of caution,” CPS Energy seeks an order under Rule 29.3 of the Texas Rules of Appellate
Procedure to extend the trial court’s TRO. See TEX. R. APP. P. 29.3; see also TEX. CIV. PRAC. &
REM. CODE ANN. § 51.014(b) (providing for automatic stays of all trial court proceedings for
certain interlocutory appeals). On June 22, 2021, ERCOT filed a letter with this court, in which
it expressly agreed that it would refrain from taking any of the actions prohibited by the TRO
before July 15, 2021, unless this court denies CPS Energy’s motion before that date. On June
23, 2021, ERCOT filed a response in opposition to the motion, in which ERCOT references H.B.
4492 and S.B. 1580, signed into law on June 16, 2021, and June 18, 2021, respectively. ERCOT
argues, among other things, that the new laws, “address the subject matter of CPS’s suit” and
“probably moot much or all of CPS’s lawsuit.” In its response, ERCOT suggests the briefing
schedule, which we now order. We ORDER CPS Energy to file a reply brief, on or before
June 30, 2021, specifically addressing, among other things, CPS Energy’s right to relief
under H.B. 4492 and S.B. 1580. We ORDER ERCOT to file a sur-reply brief, on or before
July 7, 2021, addressing CPS Energy’s right to relief under H.B. 4492 and S.B. 1580.
All other deadlines in the appeals are unaffected by this order. These other deadlines
include the deadline of June 25, 2021, to file the clerk’s record in Cause Number 04-21-242-CV,
see TEX. R. APP. P. 35.1(b), and ERCOT’s deadline of July 6, 2021, to file a response to CPS
Energy’s motion to dismiss both appeals, which CPS Energy filed on June 23, 2021. See TEX. R.
APP. P. 4.1(a), 10.3(a).
It is so ORDERED on June 24, 2021.
PER CURIAM
ATTESTED TO: ______________________________
MICHAEL A. CRUZ,
Clerk of Court