Cities of Corpus Christi // AEP Texas Central Company v. Public Utility Commission of Texas // Cities of Corpus Christi ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00585-CV
Appellants, Cities of Corpus Christi, et al. // Cross-Appellant,
AEP Texas Central Company
v.
Appellee, Public Utility Commission of Texas // Cross-Appellees,
Cities of Corpus Christi, et al.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-05-004378, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
MEMORANDUM OPINION
This is an appeal from a final order of the Public Utility Commission in a ratemaking
proceeding initiated by AEP Texas Central Company (TCC) to set transmission and distribution
rates. The district court affirmed the Commission’s final order. Because we conclude that the
Commission’s final order was consistent with the plain language of the relevant statutes and was
supported by substantial evidence, we affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, the legislature determined it was in the public interest to restructure and
partially deregulate the Texas retail electric power industry. See generally Tex. Util. Code Ann.
§ 39.001 (West 2007). To accomplish this mandate, the legislature enacted Senate Bill 7 (“SB 7”),
which amended the Public Utility Regulatory Act (“PURA”).1 See Act of May 27, 1999, 76th
Leg., R.S., ch. 405, 1999 Tex. Gen. Laws 2543 (now codified in Chapter 39 of the PURA, Tex. Util.
Code Ann. §§ 39.001-.910 (West 2007)); see also CenterPoint Energy Houston Elec., LLC v. Gulf
Coast Coalition of Cities, No. 03-05-00557-CV, 2007 Tex. App. LEXIS 9919, at *3-*18
(Tex. App.—Austin Dec. 20, 2007, no pet. h.) (describing statutory framework for transition to
competitive retail electric market) (hereafter “CenterPoint”). SB 7 required each integrated electric
utility to separate its business activities into three separate units—a power generation company, a
transmission and distribution utility, and a retail electric provider. See Tex. Util. Code Ann.
§ 39.051. After the passage of SB 7, and with few exceptions, only transmission and distribution
utilities remain subject to rate regulation by the Commission. See id. § 39.001(a).
This appeal arises from the first ratemaking proceeding for TCC2 since the enactment
of SB 7. TCC initiated this ratemaking proceeding on November 3, 2003, when it filed an
application with the Commission to increase the transmission and distribution rates for its entire
service area.3 TCC’s application sought approval to increase its rates by $66.5 million, or 14.7%,
to recover a claimed revenue requirement of $519.9 million.
The Commission referred TCC’s application to the State Office of Administrative
Hearings for a contested case proceeding. Several parties intervened in the proceedings before
1
Tex. Util. Code Ann. §§ 11.001-64.158 (West 2007).
2
TCC is the transmission and distribution utility of the formerly integrated utility known as
Central Power & Light Company.
3
TCC serves an area of approximately 44,000 square miles in south Texas.
2
SOAH. Included among the intervenors were the Cities served by TCC,4 CPL Retail Energy, LP,5
the Office of Public Utility Counsel (OPC), the State of Texas, and the Texas Industrial Energy
Consumers (TIEC).6 Following a hearing and briefing on all disputed matters, the administrative
law judges recommended findings of fact and conclusions of law in a proposal for decision. After
the Commission issued two orders remanding the cause to SOAH for additional proceedings, the
ALJs issued a PFD on Remand. Ultimately, the Commission held its own hearing on certain issues
raised by the parties. Upon considering additional evidence, the Commission adopted in part and
rejected in part, the ALJs’ recommendations in the original PFD and the PFD on Remand. In its
final order, the Commission determined that TCC’s appropriate revenue requirement was $443.6
million. This reduction represented an agreed disallowance of $10.5 million in affiliate expenses,
plus other disallowances made by the Commission.
TCC, the Cities, and the State sought judicial review of the Commission’s final order
in district court. See id. § 15.001; Tex. Gov’t Code Ann. §§ 2001.171, .174, .176 (West 2000). The
district court consolidated all of the petitions for judicial review into one cause for purposes of trial.
After considering the pleadings, briefs, and argument of the parties, as well as the administrative
4
There were 86 cities served by TCC, including Corpus Christi, Harlingen, Laredo,
McAllen, and Victoria. We refer to all 86 cities collectively as the “Cities.”
5
CPL Retail Energy, LP, is the affiliated retail electric provider of the formerly integrated
utility known as Central Power & Light Company.
6
Commission Staff also participated as a party in these proceedings.
3
record, the district court entered final judgment affirming the Commission’s final order in all
respects. This appeal followed. Only TCC and the Cities appeal from the district court’s final
judgment.7
DISCUSSION
On appeal, TCC and the Cities challenge the district court’s judgment affirming the
Commission’s final order on various grounds. TCC raises three issues. TCC argues that the district
court erred in affirming the Commission’s final order because the Commission erroneously imposed
a $7.5 million penalty reducing TCC’s proposed rates after determining that TCC initiated the
ratemaking proceeding, erroneously reduced TCC’s proposed rates based on an estimate of future
costs, and erroneously applied a consolidated tax savings adjustment to reduce TCC’s proposed
rates. The Cities raise four issues. The Cities argue that the district court erred in affirming the
Commission’s final order because the Commission violated section 36.058 of the PURA by
including affiliated expenses in TCC’s rates without making the required statutory findings,
erroneously severed service quality and reliability issues into another proceeding and failed to
consider TCC’s poor service quality when setting TCC’s rates, violated section 36.060 of the PURA
by allocating only 23.1% of the consolidated tax savings to TCC, and failed to allocate to ratepayers
any of the gain realized from the sale of TCC’s affiliated retail electric provider.
7
Neither the State nor TIEC appealed the district court’s judgment, but TIEC did file a brief
in support of the Commission regarding the first issue raised on appeal by TCC.
4
Standard of Review
We review the Commission’s final order under the substantial evidence rule. See
Tex. Util. Code Ann. § 15.001; Tex. Gov’t Code Ann. § 2001.174. “This is a limited standard of
review that gives significant deference to the agency in its field of expertise.” Railroad Comm’n
v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995); see Texas Health Facilities Comm’n
v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). We presume that the agency’s
order is valid and that its findings, inferences, conclusions, and decisions are supported by
substantial evidence. City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex. 1994);
Charter Med., 665 S.W.2d at 452. The complaining party has the burden to overcome this
presumption. City of El Paso, 883 S.W.2d at 185; Hammack v. Public Util. Comm’n, 131 S.W.3d
713, 725 (Tex. App.—Austin 2004, pet. denied). In conducting a substantial evidence review, we
evaluate the entire record to determine whether the evidence, as a whole, is such that reasonable
minds could have reached the conclusion the agency must have reached in order to take the disputed
action. Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988); Suburban
Util. Corp. v. Public Util. Comm’n, 652 S.W.2d 358, 364 (Tex. 1983). We may not substitute our
judgment for that of the agency on the weight of the evidence on questions committed to the
agency’s discretion. Tex. Gov’t Code Ann. § 2001.174; Charter Med., 665 S.W.2d at 452; H.G.
Sledge, Inc. v. Prospective Inv. & Trading Co., Ltd., 36 S.W.3d 597, 602 (Tex. App.—Austin 2000,
pet. denied).
Under a substantial evidence review, the issue for the reviewing court is not whether
we believe the agency’s decision was correct, but whether the record demonstrates some reasonable
5
basis for the agency’s action. Charter Med., 665 S.W.2d at 452; Central Power & Light Co.
v. Public Util. Comm’n, 36 S.W.3d 547, 561 (Tex. App.—Austin 2000, pet. denied). The evidence
in the record may preponderate against the decision of the agency and nevertheless amount to
substantial evidence. Charter Med., 665 S.W.2d at 452; Meier Infinity v. Motor Vehicle Bd.,
918 S.W.2d 95, 98 (Tex. App.—Austin 1996, writ denied). We will uphold the agency’s order
unless the agency’s decision is: not reasonably supported by substantial evidence, in violation of a
constitutional or statutory provision, in excess of the agency’s statutory authority, made through
unlawful procedure, affected by other error of law, arbitrary or capricious, or characterized by an
abuse of discretion. See Tex. Gov’t Code Ann. § 2001.174(2)(A)-(F).
Certain issues raised by the parties involve questions of statutory construction, which
we review de novo. See, e.g., City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003)
(appellate courts review matters of statutory construction de novo); In re Humphreys, 880 S.W.2d
402, 404 (Tex. 1994) (questions of law are always subject to de novo review). When construing
a statute, our primary goal is to determine and give effect to the legislature’s intent. City of
San Antonio, 111 S.W.3d at 25. To determine legislative intent, we look to the statute as a whole,
as opposed to isolated provisions. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). We begin
with the plain language of the statute at issue and apply its common meaning. City of San Antonio,
111 S.W.3d at 25. Where the statutory text is unambiguous, we adopt a construction supported
by the statute’s plain language, unless that construction would lead to an absurd result. Fleming
Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). We give serious consideration to an
agency’s interpretation of the statutes it is charged with enforcing, so long as that interpretation
6
is reasonable and consistent with the statutory language. Tarrant Appraisal Dist. v. Moore,
845 S.W.2d 820, 823 (Tex. 1993); Steering Comms. for the Cities Served by TXU Elec. v. PUC,
42 S.W.3d 296, 300 (Tex. App.—Austin 2001, no pet.). This is particularly true when the statute
involves a complex subject matter. Steering Comms. for Cities, 42 S.W.3d at 300. Courts, however,
“do not defer to administrative interpretation in regard to questions which do not lie within
administrative expertise, or deal with a nontechnical question of law.” Rylander v. Fisher Controls
Int’l, Inc., 45 S.W.3d 291, 302 (Tex. App.—Austin 2001, no pet.).
Additionally, certain issues challenge the Commission’s authority. The Public Utility
Commission “is a creature of the Legislature and has no inherent authority.” Public Util. Comm’n
v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex. 1995). Like other state administrative agencies,
the Commission “has only those powers that the Legislature expressly confers upon it” and “any
implied powers that are necessary to carry out the express responsibilities given to it by the
Legislature.” Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001). It is not
enough that the power claimed by the Commission be reasonably useful to the Commission in
discharging its duties; the power must be either expressly conferred or necessarily implied by statute.
The agency may not “exercise what is effectively a new power, or a power contradictory to the
statute, on the theory that such a power is expedient for administrative purposes.” Id.
Ratemaking Process
Before addressing the merits of the parties’ contentions, we provide a brief discussion
of the ratemaking process. Although the legislature in 1999 deregulated certain portions of the Texas
electric market, including power generation and retail sales, the legislature did not deregulate
7
transmission and distribution utilities. See Tex. Util. Code Ann. § 39.001(a). The rates of all
transmission and distribution utilities remain subject to regulation, and all of the traditional
ratemaking rules and principles apply.
As a general rule, a utility’s rates must be just and reasonable. Id. § 36.003(a)
(West 2007). Regulated utilities are entitled to rates that allow them to collect total revenues equal
to their cost of service and provide the utility an opportunity to earn a reasonable return on its
invested capital. Id. § 36.051 (West 2007); see Suburban Util. Corp., 652 S.W.2d at 363.
Fundamental in the utility ratemaking process is the principle that utility rates are set for the future,
not the past. State v. Public Util. Comm’n, 883 S.W.2d 190, 198-99 (Tex. 1994); Railroad Comm’n
v. Lone Star Gas Co., 656 S.W.2d 421, 425 (Tex. 1983).
Even so, ratemaking starts with an historic test year. See GTE-Southwest, Inc.,
901 S.W.2d at 411; 16 Tex. Admin. Code §§ 25.231(a) (cost of service), .234(b) (rate design) (2007)
(Pub. Util. Comm’n). Because rates are to be charged in the future, the historic test-year amounts
must be adjusted for known and measurable changes to more accurately reflect costs that will be
incurred in the future. The Commission has the authority to incorporate known and measurable
changes to test-year data at its discretion. See City of El Paso, 883 S.W.2d at 188; see also GTE-
Southwest, Inc., 901 S.W.2d at 411; 16 Tex. Admin. Code §§ 25.231(a)-(b) (cost of service), .234(b)
(rate design). Once these adjustments have been made, the Commission must determine a
reasonable rate of return. See Tex. Util. Code Ann. § 36.052 (West 2007). To establish a reasonable
rate of return, the Commission considers several factors, including the efforts of the utility in
conserving resources, the quality of the utility’s service, the efficiency of the utility’s operations, and
8
the quality of the utility’s management. Id. With this general description in mind, we turn to the
parties’ complaints on appeal.
Penalty for Initiating Rate Increase
In its first issue on appeal, TCC complains that the Commission erroneously reduced
TCC’s proposed rates by imposing a $7.5 million penalty after determining that TCC had violated
the terms of the Integrated Stipulation Agreement (ISA) signed when TCC’s parent company
American Electric Power (AEP) merged with Central and South West Corporation (CSW). TCC
argues that the Commission misconstrued the unambiguous terms of the ISA and, therefore,
erroneously reduced TCC’s proposed rates. Because we conclude that the plain language of the ISA
allowed the Commission to impose a penalty if it determined that TCC initiated a proceeding to
increase rates within six years after the ISA was signed, we reject TCC’s claim that the Commission
erroneously imposed a penalty when it reduced TCC’s proposed rates.
A. The ISA
In April 1998, AEP and CSW initiated proceedings before the Commission seeking
approval of the terms of their proposed merger agreement as required under section 14.101(b) of
the PURA, which authorizes the Commission to review proposed combinations and “to determine
whether the action is consistent with the public interest.” See Tex. Util. Code Ann. § 14.01(b)
(West 2007). The Commission opened Docket No. 19265 to consider various issues posed by the
merger, and several parties intervened. During these proceedings, most of the parties reached
agreement on the disputed issues and memorialized the terms of their agreement in the ISA.
9
Consistent with the Texas Supreme Court’s holding in City of El Paso v. Public Utility Commission,
the Commission made an independent evaluation of the merits of the ISA and determined that the
terms of the ISA were just and reasonable and supported by substantial evidence. See 883 S.W.3d
at 183. The Commission approved the terms of the ISA in its final order in Docket No. 19265.
The terms of the ISA recognized that the AEP/CSW merger would produce savings
over previous operations and provided that the Texas AEP subsidiaries, including TCC, were to
share those savings with ratepayers in fixed annual amounts known as “net merger savings rate
reduction riders.” To guarantee these savings, the ISA expressly limited the ability of the utilities
to seek rate increases. For the first three years following the merger, the ISA prohibited the utilities
from seeking any adjustment to rates, subject only to a force majeure exception. During years four
through six, the utilities, including TCC, could seek an increase in rates, but doing so would trigger
the ISA’s penalty provision. This penalty provision required the utility to apply substantial
predetermined “revenue requirement credits,” or reductions, to offset any possible rate increase.
In relevant part, the ISA penalty provision states:
In any proceeding initiated by a Texas operating company requesting an increase to
overall base rate revenues to become effective prior to the end of the six year period
after the effective date of the merger:
(a) The net merger savings expense item and annual amount of amortization of
costs to achieve the merger will not be included in the calculation of the cost
of service unless the Texas operating company demonstrates:
(i) that the proposed rate increase results from circumstances not directly
or indirectly related to the merger; and
(ii) that the full level of achieved merger savings for the applicable year
as reflected in Attachment D have been achieved; and
10
(b) the revenue requirements otherwise determined to be reasonable and
necessary will be reduced by the annual amounts included in Attachment E.8
B. The Commission’s decision and TCC’s claim
The Commission determined that the plain language of this penalty provision applied
because TCC initiated a proceeding requesting an increase to overall base rate revenues. It is this
determination that TCC challenges on appeal.
Arguing that the Commission misconstrued the language of the ISA penalty
provision, TCC maintains that the Cities, not TCC, initiated the proceeding to increase base rate
revenues. In support of this argument, TCC claims that six of the Cities “took the first decisive steps
that began the rate proceeding” by adopting resolutions “to proceed with an inquiry into transmission
and distribution rates charged by [TCC].”9 Prior to any filings, TCC and the six cities agreed in a
stipulation signed July 14, 2003, (“July 14th Agreement”) that in lieu of filing separate rate packages
with each city, TCC would file a standard rate filing package with each city and with the
Commission on the same date. The July 14th Agreement reflects that TCC specifically agreed
to make the filing with the Commission “in order to initiate the [Commission’s] review of AEP
Texas Central Company’s rates.” TCC argues that it only filed the ratemaking proceeding with the
Commission in response to the Cities’ rate inquiry.
8
See Tex. Pub. Util. Comm’n, Application of Central & South West Corp. & Am. Elec.
Power Co., Inc. Regarding Proposed Business Combination, Docket No. 19265 (Nov. 18, 1999)
(Final Order) (ISA § 3.F.(3)).
9
The cities of Corpus Christi, Edna, Harlingen, McAllen, Laredo, and Victoria all filed
similar resolutions to inquire into TCC’s rates.
11
Having approved the ISA as part of its final order approving the AEP/CSW merger,
the Commission had exclusive jurisdiction to interpret the provisions of the ISA and to resolve
any dispute arising therefrom, including the question of who initiated the proceeding. See In re
Entergy Corp., 142 S.W.3d 316, 324 (Tex. 2004); Public Util. Comm’n v. Southwestern Bell Tel.
Co., 960 S.W.2d 116, 119-20 (Tex. App.—Austin 1997, no pet.). The Commission’s construction
of the ISA is consistent with the plain language of the penalty provision.
We agree with the Commission that the plain language of the ISA mandates that the
penalty provision applies “[i]n any proceeding initiated by a Texas operating company requesting
an increase to overall base rate revenues” prior to the end of the sixth year after the AEP/CSW
merger. (Emphasis added.) The penalty provision is not limited in its application to proceedings
before municipalities, or to proceedings before the Commission, but applies in any proceeding in
which the utility seeks an increase in base rate revenues. TCC, not the Cities, filed an application
to increase its base rate revenues. It matters not whether this application was filed with the Cities
or with the Commission. Because TCC’s application sought an increase in base rate revenues, the
Commission properly determined that the penalty provision applied. The Commission correctly
observed that TCC could have filed an application seeking to defend its existing rates, but TCC
chose instead to seek approval of an increase in its base rate revenues.10
10
The Commission’s decision is further supported by TCC’s statement in its brief that
TCC’s filing “did nothing more than ensure that the overall outcome of the process would result in
systemwide rates.” There is nothing in the PURA that requires TCC to charge “systemwide” rates.
Indeed, the PURA expressly allows for utilities to charge different rates for different customer
classes. See Tex. Util. Code Ann. §§ 36.001(a)(1), .003(b)-(c) (West 2007); see also id. § 36.005
(West 2007) (allowing utilities to charge different rates for areas outside a municipality). Thus, TCC
was not obligated to initiate a ratemaking proceeding at the Commission to charge systemwide rates.
Having chosen to do so, TCC must accept the consequences of its action.
12
We likewise reject TCC’s argument that the proceeding before the Commission was
merely a continuation of proceedings before the municipalities. Neither the record nor the law
supports this contention. The record reflects—and TCC acknowledges—that this proceeding was
not an appeal from a decision by a municipality as permitted under sections 33.051, 33.052, or
33.053 of the PURA. See Tex. Util. Code Ann. §§ 33.051-.053 (West 2007). It was an original
application filed with the Commission to increase TCC’s base rate revenues and establish
systemwide rates.
For these reasons, we overrule TCC’s first issue.
Post-Test-Year Adjustments
In its second issue, TCC complains that the Commission erred in adopting TCC’s
proposed “post-test-year adjustment” for reduced post-employment benefit expenses. TCC
challenges the Commission’s adoption of this particular adjustment, which was based on an actuarial
study, because the Commission declined to adopt three other proposed post-test-year adjustments
based on actuarial studies. TCC contends that the Commission’s adoption of this adjustment was
arbitrary and capricious. We disagree.
The record reflects that TCC proposed four post-test-year adjustments related to
expenses for several categories of employee benefits, including employee pensions, group insurance,
post-retirement benefits other than pensions (OPEBs), and post-employment benefit expenses. TCC
witness Randall Hamlett testified that each of these proposed adjustments were based on an actuarial
estimate of future costs anticipated to occur after the test year. The other parties challenged all but
one of TCC’s proposed post-test-year adjustments. The proposed adjustment for post-employment
13
benefit expenses was not challenged. In its final order, the Commission adopted only TCC’s
proposed adjustment for post-employment benefit expenses.
The supreme court has acknowledged that ratemaking relies substantially upon
informed judgment and expertise and utilizes projections and estimates in virtually all areas. See
GTE-Southwest, Inc., 901 S.W.2d at 411. The Commission has broad discretion when setting the
rates of public utilities. See Texas Alarm & Signal Ass’n v. Public Util. Comm’n, 603 S.W.2d 766,
772 (Tex. 1980); Southwestern Bell Tel. v. Public Util. Comm’n, 571 S.W.2d 503, 515 (Tex. 1978).
The Commission’s ratemaking authority includes the discretion to disallow improper expenses. See
Suburban Util. Corp., 652 S.W.2d at 362. The Commission may decide in its discretion whether
to incorporate “known and measurable” changes to the test-year data. See Office of Pub. Util.
Counsel v. Public Util. Comm’n, 185 S.W.3d 555, 566 n.14 (Tex. App.—Austin 2006, pet. denied);
16 Tex. Admin. Code § 25.231(a). We will not substitute our judgment for that of the Commission
on the weight to be given the evidence on questions committed to the Commission’s discretion.
Office of Pub. Util. Counsel, 185 S.W.3d at 567; see also Tex. Gov’t Code Ann. § 2001.174.
TCC would fault the Commission for adopting an uncontested adjustment proposed
by TCC merely because the Commission rejected other contested proposals. In support of its
argument, TCC cites to statements made by the commissioners during their deliberations at an open
meeting. However, it is immaterial what the commissioners may have thought or stated in the
process of arriving at a decision. See City of Frisco v. Texas Water Rights Comm’n, 579 S.W.2d 66,
72 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.). Such statements are simply not relevant to the
judicial determination of whether the Commission’s final order was supported by substantial
evidence. Id.
14
In its final order, the Commission gave independent reasons for its rejection of TCC’s
proposed post-test-year adjustments. The Commission’s explanations were supported by the
evidence and were not based solely on the rejection of actuarial studies.
With regard to employee pensions, the Commission adopted the ALJs’
recommendation rejecting this post-test-year adjustment. In the PFD, the ALJs explained that they
rejected the testimony offered by TCC witness Michael Turk regarding the adjustment for employee
pensions. Turk testified that his projections were based on declines in the equity markets, declines
in interest rates, a recent increase in actuarial liabilities, and his own prediction that these declines
would continue into 2005. Turk further testified that he “could not predict with reasonable certainty”
how stock prices or interest rates would affect future actuarial pension funding. Based on Turk’s
testimony, the ALJs determined that TCC’s proposed adjustment for employee pensions was not a
“known and measurable change” and recommended disallowance of this expense. The Commission
adopted this recommendation in its final order.
With regard to OPEBs, the ALJs found that this expense item was subject to the
Commission’s rule 25.231(b)(1)(H)(i), which expressly requires such expenses to be based on
“actual payments made.” See 16 Tex. Admin. Code § 25.231(b)(1)(H)(i). Because TCC’s proposed
adjustment was based on actuarial projections, and not actual payments made, the ALJs determined
that TCC’s proposed adjustment for OPEBs did not comply with the Commission’s rule and
recommended that the Commission disallow this expense item. The Commission adopted this
recommendation in its final order.
With regard to group insurance, the Commission determined that the evidence
15
presented by TCC did not satisfy the “known and measurable” standard for changes to test-year data.
The record reflects that TCC presented the testimony of various witnesses, but none of these
witnesses provided direct explanatory testimony on the issue of group insurance benefits. TCC
witness Michael Turk testified generally that TCC provided various benefits including medical and
dental benefits, but he did not testify about the cost of these benefits. And no other TCC witness
testified about the costs of group insurance. In its final order, the Commission determined that the
evidence presented by TCC was insufficient to support an increase above the test-year actual cost.
Finally, regarding post-employment benefits, TCC proposed a reduction in rates
for this expense item. The record reflects that TCC presented evidence and testimony in support of
this proposed adjustment. None of the parties challenged TCC’s proposal. In the absence of any
challenge to TCC’s proposal, the Commission adopted TCC’s proposed adjustment to reduce post-
employment benefit expenses.
As a reviewing court, the issue before us is not whether we believe the Commission
made the correct decision, but whether there is a reasonable basis in the record for the action taken
by the Commission. Charter Med., 665 S.W.2d at 452; Central Power & Light Co., 36 S.W.3d at
561. Because no one challenged TCC’s proposed adjustment to post-employment benefit expenses,
we conclude that the Commission acted within its discretion to adopt TCC’s proposal.11 We
11
Having requested and received the adjustment it sought for post-employment benefits,
TCC was neither aggrieved nor prejudiced by the Commission’s decision. It is therefore arguable
whether TCC was entitled to judicial review, much less reversal, on this issue. Compare Tex. Util.
Code Ann. § 15.001 (allowing any party to proceeding before the Commission to seek judicial
review), with Tex. Gov’t Code Ann. §§ 2001.171 (allowing only aggrieved parties to seek judicial
review of agency decisions), .174 (authorizing reversal only where substantial rights have been
prejudiced) (West 2000).
16
likewise conclude that the Commission’s order was supported by substantial evidence, and we
overrule TCC’s second issue.
Consolidated Tax Savings Adjustment
In its third issue, TCC complains that the Commission erred in adopting an
adjustment for consolidated tax savings. For the following reasons, we reject TCC’s complaint.
Federal law allows affiliated corporations to file a single, joint income tax return, or
consolidated tax return, in certain situations. See 26 U.S.C. § 1501 (2002). By filing a consolidated
tax return, affiliated corporations can reduce their total tax liability by offsetting their otherwise
taxable gains with the losses of their unprofitable affiliates. See Central Power & Light Co.,
36 S.W.3d at 555.
Because the potential for substantial savings exists when a corporation files a
consolidated tax return, section 36.060 of the PURA requires the Commission to consider such
savings when setting a utility’s rates. Tex. Util. Code Ann. § 36.060 (West 2007). This section
provides:
Unless it is shown to the satisfaction of the regulatory authority that it was reasonable
to choose not to consolidate returns, an electric utility’s income taxes shall be
computed as though a consolidated return had been filed and the utility had realized
its fair share of the savings resulting from that return, if:
(1) the utility is a member of an affiliated group eligible to file a consolidated
income tax return; and
(2) it is advantageous to the utility to do so.
Id. Under this provision, the Commission is required to calculate TCC’s fair share of tax savings
17
resulting from the filing of a consolidated tax return. Id.; see Central Power & Light Co., 36 S.W.3d
at 555.
Here, the Commission determined and TCC agrees that TCC’s parent company, AEP,
enjoyed significant tax savings as a result of filing a consolidated tax return. However, in its rate
filing package with the Commission, TCC failed to allocate any of AEP’s tax savings to TCC. So,
as required under section 36.060, the Commission adopted an adjustment to TCC’s claimed income
taxes to reflect TCC’s appropriate share of consolidated tax savings.
TCC argues that the Commission lacked authority to make such an adjustment
because section 36.060 only requires sharing of tax savings when a utility does not file a
consolidated return. TCC’s construction of section 36.060 conflicts with the plain language of that
statute. Section 36.060 plainly requires the Commission to calculate TCC’s taxes as though a
consolidated return had been filed, unless TCC can show to the Commission’s satisfaction that it was
reasonable to choose not to consolidate tax returns. TCC does not attempt to demonstrate that it was
reasonable for AEP to choose not to consolidate returns. Under the plain language of section 36.060,
the Commission was therefore required to calculate TCC’s taxes as if a consolidated return had been
filed, which it was. We reject TCC’s contention that the Commission may only consider a
consolidated tax savings adjustment when the company does not file a consolidated tax return.
TCC further contends that the Commission’s decision to adopt a consolidated tax
savings adjustment was not supported by substantial evidence. Because the record demonstrates that
the Commission’s decision was supported by substantial evidence, we likewise reject this contention.
In its final order, the Commission reduced TCC’s federal income tax expense by
18
$2,322,54512 to account for consolidated tax savings. This amount was based on a proxy proposed
by TCC,13 which allocated TCC’s share of consolidated tax savings over the relevant fifteen-year
period based on TCC’s rate base. This approach was consistent with the Commission’s approach
in TCC’s last ratemaking proceeding, which was affirmed by this Court in Central Power & Light
v. Public Utility Commission.14 See 36 S.W.3d at 555-57. As the Commission explained in its final
order, a consolidated tax savings adjustment is appropriately based on the value of the tax shield that
the utility provides to the parent company and its nonregulated affiliates. The record evidence
demonstrates that the Commission calculated the adjustment to TCC’s taxes based on the value of
the tax shield that TCC provided to its parent company. TCC witness Jeffrey Bartsch agreed that
the adjustment adopted by the Commission was calculated in accordance with the Commission’s
past application of the “interest-credit”—or “rate-base”—methodology. We conclude that the
Commission’s decision was supported by substantial evidence, and we overrule TCC’s third issue.
In a related issue, the Cities argue in their third issue on appeal that the Commission’s
consolidated tax savings adjustment failed to follow the Commission’s own precedent and was not
supported by substantial evidence. As a result, the Cities contend that the Commission’s order fails
to allocate TCC’s fair share of consolidated tax savings to ratepayers.
12
The consolidated tax savings adjustment was $1,509,656. This amount was “grossed-up”
to $2,322,545 to capture the tax effect of the adjustment and to reflect the proper revenue
requirement.
13
TCC witnesses Jeffrey Bartsch and Donald Moncrief testified on remand regarding the
proposed allocation and adjustment for consolidated tax savings.
14
This approach is also known as the “interest-credit,” “rate-base,” or “time-value-of-tax-
shield” methodology. We do not agree with the Commission’s assertion that TCC challenges the
methodology chosen by the Commission.
19
In support of this contention, the Cities cite to this Court’s holding in Reliant Energy,
Inc. v. Public Utility Commission, 153 S.W.3d 174 (Tex. App.—Austin 2004, pet. denied). The
Cities’ reliance on Reliant Energy is misplaced. In Reliant Energy, this Court recognized that “[t]he
legislature has granted the Commission broad discretion in determining a utility’s fair share of the
savings arising from the filing of a consolidated tax return by the parent company.” Id. at 198. As
in Central Power & Light, we affirmed the Commission’s use of the “time-value-of-tax-shield”
methodology to calculate the appropriate consolidated tax savings adjustment. Id. at 198 n.13; see
also supra n.14 (explaining that the time-value-of-tax-shield methodology is also referred to as the
“interest-credit” or “rate-base” methodology).
As previously discussed, the Commission adopted the ALJs’ recommendation on this
issue, which was based on a proxy proposed by TCC. The Cities argue that the Commission should
have adopted the Cities’ proxy instead of that proposed by TCC. We conclude that the
Commission’s decision to adopt the proxy submitted by TCC was neither arbitrary nor capricious.
The Commission was entitled to accept or reject, in whole or in part, the testimony of the various
witnesses who testified. City of Corpus Christi v. Public Util. Comm’n, 188 S.W.3d 681, 695
(Tex. App.—Austin 2005, pet. denied). In light of our previous conclusions that the Commission’s
decision was consistent with its precedent and supported by substantial evidence, we overrule the
Cities’ third issue.
Affliate Costs
In their first issue, the Cities argue that the Commission erred by including affiliate
costs in TCC’s cost of service without making the specific findings required by section 36.058 of
the PURA. For the reasons that follow, we reject the Cities’ complaint.
20
TCC originally requested $63.8 million in affiliate expenses. Section 36.058 of the
PURA provides that the Commission may not include affiliate costs in a utility’s rates unless the
Commission makes a specific finding of reasonableness and necessity for each item or class of items,
and also finds that the price charged by the affiliate to the utility is no higher than the price charged
by the affiliate to other purchasers. See Tex. Util. Code Ann. § 36.058 (West 2007).15 Because the
Commission disagreed with the ALJs’ recommendations regarding affiliate costs, the Commission
15
In relevant part, section 36.058 states:
(a) Except as provided by Subsection (b), the regulatory authority may not allow
as capital cost or as expense a payment to an affiliate for:
(1) the cost of a service, property, right, or other item; or
(2) interest expense.
(b) The regulatory authority may allow a payment described by Subsection (a)
only to the extent that the regulatory authority finds the payment is reasonable
and necessary for each item or class of items as determined by the
commission.
(c) A finding under Subsection (b) must include:
(1) a specific finding of the reasonableness and necessity of each item or
class of items allowed; and
(2) a finding that the price to the electric utility is not higher than the
prices charged by the supplying affiliate for the same item or class of
items to:
(A) its other affiliates or divisions; or
(B) a nonaffiliated person within the same market area or having
the same market conditions.
Tex. Util. Code Ann. § 36.058.
21
conducted its own hearing on this issue. The Commission heard evidence from all of the parties on
affiliate costs. However, before the Commission made its final decision on this issue, TCC and
TIEC filed a nonunanimous stipulation (NUS) proposing a $10.5 million disallowance to TCC’s
requested affiliate costs. The Cities did not oppose the adoption of the NUS, but they continued to
oppose the level of administrative and general (A&G) expenses proposed by TCC, including $13.8
million of affiliate costs.
The Cities argued that TCC’s A&G expenses were too high in relation to the A&G
expenses of other utilities. Based on the testimony of two witnesses, the Cities argued that all of
TCC’s affiliate costs that were allocated to distribution A&G should be disallowed. Cities witness
Gerald Tucker proposed an initial disallowance of $14.8 million in TCC’s affiliate A&G costs.
Cities witness A.D. Patton proposed an additional reduction of $13.8 million to TCC’s affiliate A&G
costs based on his comparison of TCC’s A&G costs in relation to the A&G costs of other utilities.
In its final order, the Commission rejected the approach urged by Cities witness
Patton and the Cities’ claim that TCC’s A&G expenses were too high when compared to other
utilities. The Commission’s final order adopted the ALJs’ findings that all but two of TCC’s A&G
expenses were reasonable and necessary. With regard to affiliate costs, the Commission adopted
the NUS proposed by TCC and TIEC. The Commission’s final order included the following findings
of fact:
158E. The NUS proposed a disallowance of $10,501,860 in [affiliate] expenses . . . .
158F. The NUS proposes to allocate the stipulated disallowance as follows:
$10,300,935 to the distribution function and $200,925 to the transmission
function.
22
158G. The stipulating parties agree that the remaining $53,289,706 in affiliate
expenses, which consists of $49,860,227 in affiliate expenses from AEPSC
and $3,429,479 in affiliate expenses from other affiliates, are reasonable and
necessary, and that the price is not higher than the price charged by the
supplying affiliate to its other affiliates or divisions or to nonaffiliated
persons for the same item or class of items.
158H. The range of expert testimony regarding disallowances of affiliate costs are
as follows:
Cities $16.6 million
OPC $13.4 million
CPL Retail $10.3 million
The Commission’s final order also included the following conclusions of law:
25A. $53,289,706 of TCC’s affiliate expenses are reasonable and necessary, and
the price charged to TCC is not higher than the price charged by the
supplying affiliate to its other affiliates or divisions or to nonaffiliated
persons for the same item or class of items.
25B. To be approved by the Commission, a non-unanimous stipulation must
comply with applicable law; be just and reasonable, and in the public interest;
and be supported by a preponderance of the record evidence. City of El Paso
v. Public Util. Comm’n, 883 S.W.2d 179, 183 (Tex. 1994).
25C. The non-unanimous stipulation providing for a disallowance of $10.5 million
in affiliate expenses is just and reasonable, and in the public interest, and is
supported by a preponderance of the record evidence.
In light of their stipulated agreement, the Cities do not challenge the Commission’s
adoption of the NUS on appeal. Rather the Cities argue that the findings made by the Commission
in relation to the NUS are insufficient to satisfy the requirements of section 36.058 of the PURA
because they do not take into account those affiliate A&G costs challenged by Cities witness Patton.
We disagree.
The record reflects that the NUS, as it was adopted by the Commission, covered all
23
$63.8 million of TCC’s requested affiliate costs. Under the terms of the NUS, the Commission
approved $53.3 million of affiliate costs and disallowed $10.5 million. With respect to the affiliate
costs approved by the Commission, the findings and conclusions quoted above demonstrate that
the Commission made the required findings under section 36.058 of the PURA. See Tex. Util. Code
Ann. § 36.058. The Commission expressly found that the affiliate costs approved under the terms
of the NUS were “reasonable and necessary, and the price charged to TCC is not higher than
the price charged by the supplying affiliate to its other affiliates or divisions or to nonaffiliated
persons for the same item or class of items.” We conclude that this finding satisfies the requirements
of section 36.058 for those affiliate costs approved under the terms of the NUS. See id.
§ 36.058(c)(1)-(2). Because the record demonstrates that the NUS covered all of TCC’s requested
affiliate costs, including those costs challenged by Cities witness Patton we conclude that the
Commission was not required to make additional findings under section 36.058.16 We overrule the
Cities’ first issue.
Quality of Service
The Cities next argue that the Commission failed to consider TCC’s quality of service
when setting TCC’s return on equity and that the Commission erred in severing quality of service
issues into another proceeding. Accordingly, the Cities argue that the Commission’s decision
violates sections 36.052, 38.001, and 38.005 of the PURA. See Tex. Util. Code Ann. §§ 36.052;
38.001, .005 (West 2007).
16
Because we conclude that the Commission’s findings satisfied the requirements of section
36.058 and additional findings were therefore unnecessary, we do not address TCC’s estoppel
argument.
24
Section 36.052 requires the Commission to consider various factors when establishing
a utility’s reasonable return on invested capital. See id. § 36.052. Among those factors to be
considered by the Commission are: the efforts and achievements of the utility in conserving
resources; the quality of the utility’s service; the efficiency of the utility’s operations; and the quality
of the utility’s management. Id. Section 38.001 requires an electric utility to provide service that
is “safe, adequate, efficient, and reasonable.” Id. § 38.001. In addition, section 38.005 imposes
service quality and reliability standards relating to the delivery of electricity by transmission and
distribution utilities. Id. § 38.005. Section 38.005 authorizes the Commission to take appropriate
enforcement action against those utilities who fail to meet the service and reliability standards
imposed by the PURA. Id. § 38.005(b).
The record demonstrates that various witnesses testified regarding the appropriate
return for TCC. Cities witness Stephen Hill testified that the appropriate rate of return was between
9.00% and 9.75%. Commission Staff witness Slade Cutter testified that the proper rate of return
should be between 9.22% and 10.23%. CPL Retail witness Dr. Charles Smaistrla testified that the
appropriate rate of return was 10.00% to 10.25%. OPC witness Dr. Carol Szerszen testified that the
appropriate rate of return was 9.2% to 10.0%. TIEC witness Michael Gorman testified that the
appropriate rate of return was between 9.2% to 10.5%. And TCC witness Paul Moul testified that
the rate of return should be 12.00%.
In its final order, the Commission adopted the nonunanimous stipulation proposed
by TCC, TIEC, CPL, and Commission Staff regarding TCC’s return on invested capital. Under the
terms of this stipulation, the Commission set TCC’s rate of return at 10.125%. The Cities complain
25
that the Commission’s decision fails to consider quality of service because the Commission severed
all reliability and quality of service issues into another proceeding.
The record demonstrates that the Commission severed only the issue of “service
quality commitments” into another proceeding. This issue concerned how rate credits related
to service quality were to be calculated under TCC’s “Service Quality Plan.” Because the
Commission was already considering service quality commitments in another pending proceeding,17
the Commission severed this issue from TCC’s rate case so that the Commission could consider all
of the service quality commitments together.18 The Commission did not sever the issue of service
quality as it relates to TCC’s rate of return.
The Commission’s procedural rules expressly allow the Commission to sever a
proceeding or an issue if such severance “would serve the interest of efficiency or prevent
unwarranted expense and delay; and the applicant’s ability to present its case and other parties’
ability to respond to the applicant’s case would not be unduly prejudiced.” 16 Tex. Admin. Code
§ 22.34 (2007) (Pub. Util. Comm’n). The Texas Supreme Court has recognized that administrative
agencies are entitled to considerable procedural flexibility, see City of Corpus Christi v. Public Util.
Comm’n, 51 S.W.3d 231, 262 (Tex. 2001), and that courts may interfere with the procedures of
an administrative agency only if they are arbitrary and capricious or deny due process. Lewis
v. Metropolitan Sav. & Loan Ass’n, 550 S.W.2d 11, 16 (Tex. 1977). Accordingly, we conclude that
17
Docket No. 25157 was established in 2001 to address certain elements of the “Service
Quality Plan,” which was created during the merger between AEP and CSW.
18
That the Commission severed only the issue of service quality of commitments is
confirmed by the plain language of TCC’s motion to sever.
26
the Commission acted within its discretion to sever the issue of service quality commitments from
Docket No. 28840 into Docket No. 25157.
The Cities do not contend that they were denied due process, but they do contend that,
as a result of the severance, the Commission failed to consider one of the required statutory factors
in section 36.052. We construe the Cities’ claim to be that the Commission’s order was arbitrary
and capricious. See, e.g., City of El Paso, 883 S.W.2d at184 (explaining that an agency’s order is
arbitrary when it fails to consider a factor that the legislature directs it to consider). But the record
belies this claim.
TCC and the Commission agree that the Commission was required to consider TCC’s
quality of service when setting TCC’s rate of return. The record reflects that the Commission’s
resolution of TCC’s rate of return was based on a nonunanimous stipulation (different from the
stipulation regarding affiliate costs), which only the Cities and one other party opposed. The
Commission’s final order includes the following findings of fact:
60. The terms of the Return Stipulation are that: TCC’s ROE be set at 10.125%;
its capital structure be set at 60% debt and 40% equity; its rate of return on
invested capital be set at 7.475%; and no penalty be applied to TCC’s ROE
for quality or reliability of service.
***
64. The quality of TCC’s service is generally adequate and does not warrant a
reduction i[n] TCC’s ROE.
65. The stipulated return of 10.125% is more likely than not a reasonable return
on TCC’s equity.
The Commission’s final order also included the following conclusion of law:
27
60. PURA § 36.052 requires the Commission to consider the “quality of the
utility’s services” and the “quality of the utility’s management: in establishing
a reasonable return on invested capital as part of the PUC’s “establishing an
electric utility’s rates.”
These findings and conclusion make clear that the Commission considered TCC’s
quality of service when determining TCC’s ROE. The plain language of section 36.052 merely
requires the Commission to consider the statutory factors. Tex. Util. Code Ann. § 36.052. It does
not require the Commission to give weight to any particular factor. Consistent with our prior
holdings, we conclude that the legislature left it to the Commission’s discretion to weigh the
importance of each factor in a given case. See, e.g., Meier Infinity, 918 S.W.2d at 100. Because
the Commission’s final order contains underlying findings that reasonably and logically support
the statutory criteria, we conclude that the Commission properly considered the required factor of
quality of service. Id. We likewise conclude that the Commission’s adoption of the nonunanimous
Return Stipulation was proper.19 See City of El Paso, 883 S.W.2d at 183. We overrule the Cities’
second issue.
Gains from the Sale of TCC’s AREP
In their fourth and final issue, the Cities assert that the Commission improperly failed
to allocate the gains from the sale of TCC’s affiliated retail electric provider to ratepayers. The
Cities argue that the Texas Supreme Court’s decision in Public Utility Commission v. Gulf States
19
The record demonstrates that the Commission considered the nonunanimous stipulation
“on its merit” and found that it was based on a preponderance of the record evidence and that the
proposed rate of return was reasonable and, therefore, in the public interest. See City of El Paso
v. Public Util. Comm’n, 883 S.W.2d 179, 183 (Tex. 1994).
28
Utilities Co., 809 S.W.2d 201, 211 (Tex. 1991), required the Commission to consider certain factors,
which the Cities complain were not considered, in allocating any gain realized from the sale of utility
assets. Because we conclude that the PURA does not authorize the Commission to allocate the gains
from the sale of TCC’s AREP to ratepayers, we reject the Cities’ final complaint.
Pursuant to section 39.051 of the PURA, utilities were required to unbundle into three
separate entities to accomplish the legislative mandate of deregulation. See Tex. Util. Code Ann.
§ 39.051 (requiring utilities to separate into a power generation company, a retail electric provider,
and a transmission and distribution utility). This section contemplates that a utility might sell off
its assets to accomplish the required separation and expressly provides that such transactions were
not subject to those provisions in the PURA which require the Commission to capture gains on asset
sales for ratepayers.20 Id. § 39.051(g) (exempting unbundling transactions from the requirements of
sections 14.101, 35.034, and 35.035 of the PURA).
The Commission concluded that the sale of TCC’s AREP was an unbundling
transaction within the meaning of section 39.051. The Commission also concluded that the sale of
TCC’s AREP did not involve any transmission and distribution assets. The Commission therefore
refused to allocate any of the gains from TCC’s sale of its AREP to ratepayers. The Cities point to
20
Section 39.051(g) states:
Transactions by electric utilities involving sales, transfers, or other disposition of
assets to accomplish the purposes of this section are not subject to Section 14.101,
35.034, or 35.035.
Tex. Util. Code Ann. § 39.051(g).
29
no other provision in the PURA that would require the Commission to allocate the gains from the
sale of TCC’s AREP to ratepayers. Because we conclude that the Commission’s decision was
consistent with the plain language of section 39.051(g), we reject the Cities’ contention that the
Commission was required to consider the factors identified by the supreme court in Gulf States
Utilities. We likewise conclude that the Commission properly declined the Cities’ request to allocate
any gains from the sale of TCC’s AREP to ratepayers. We overrule the Cities’ fourth issue.
CONCLUSION
Having concluded that the Commission’s final order was consistent with the relevant
statutes and was supported by substantial evidence, we affirm the district court’s judgment, which
affirmed the final order of the Commission.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: March 5, 2008
30