Entergy Texas, Inc. v. Public Utility Commission of Texas, Office of Public Utility Counsel, and State of Texas Agencies and Institutions of Higher Education ( 2015 )

ACCEPTED
03-14-00706-CV
5270049
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/13/2015 2:46:24 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00706-CV
IN THE COURT OF APPEALS FILED IN
FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS
5/13/2015 2:46:24 PM
ENTERGY TEXAS, INC., JEFFREY D. KYLE
Clerk
Appellant,
v.
PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.,
Appellees.
__________________________________________________________________
STATE AGENCIES’
REPLY TO APPELLANT’S RESPONSE TO
STATE AGENCIES’ MOTION TO STRIKE
AND
RESPONSE TO MOTION FOR THE COURT
TO TAKE JUDICIAL NOTICE
__________________________________________________________________
TO THE HONORABLE THIRD COURT OF APPEALS:
Appellee State of Texas Agencies and Institutions of Higher Education (State
Agencies) file this Reply to Appellant Entergy Texas Inc.’s (ETI’s) Response to
State Agencies’ Motion to Strike and Response to ETI’s Motion for the Court
to Take Judicial Notice. In support of their own motion and in opposition to ETI’s,
State Agencies show as follows.
I. Testimony and Orders are different.
ETI conflates the nature of documents that are appropriate for attachment as
appendices. Contrary to ETI’s characterization, there is an appreciable difference
between evidence offered within an administrative agency’s proceeding and the final
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decision of the agency, as documented in a Final Order signed by the agency’s
Commissioners. Because ETI appended evidence, in the form of witness testimony,
to its brief, the appendices and linked testimony should be properly stricken.
Texas Rule of Appellate Procedure (TRAP) 38.1(i) requires that a brief must
contain “appropriate citations to authorities and to the record.” TRAP 38.1(k)(2)
allows optional contents for the appendix to a brief in civil cases, specifically, items
pertinent to the issues or points presented for review, including “copies or excerpts
of relevant court opinions, laws, documents on which the suit was based, pleadings,
excepts from the reporter’s record, and similar material.” When read together,
subsections (i) and (k) provide for the citation to and appending of authorities, such
as case law and statutes, or other documents from related proceedings. Where
judicial review of an Administrative decision is sought, TRAP 36.2 allows for the
inclusion of the record of the underlying agency proceeding in the appellate record.
Nowhere in the rules of appellate procedure are evidentiary filings from other,
unrelated agency proceedings made eligible for inclusion as appendices to a brief in
this Court.
ETI cites to Oncor Elec. Delivery Co. LLC v. Public Util. Comm’n of Tex.1 to
support its assertion that this Court may consider the testimony presented in ETI’s
appendices. However, the Oncor case does not support ETI’s argument. In Oncor,
1 406 S.W.3d 253, 267 (Tex. App.—Austin 2013, no pet.).
2
this Court ruled that it could consider prior Public Utility Commission (PUC or
Commission) orders; that is, it considered the Commission’s decisions in previous
cases. It did not consider evidence offered in any of the cases that gave rise to those
decisions. In fact, the consideration of Commission decisions was explicitly
contrasted with the consideration of evidence regarding fact issues from other
agency proceedings, which the Oncor court affirmed had previously been properly
proscribed. 2 The testimony put forth by ETI is not properly appended; it should be
stricken.
II. Citations should include page numbers.
State Agencies’ objection to ETI’s incomplete citations concerns locating
relevant references within the referenced documents, rather than locating the
documents themselves. As stated in State Agencies’ Motion to Strike, neither
appellate court nor trial court is required to wade through entire documents and
testimonies to locate proof. It is the parties’ responsibility to provide page numbers
and, if necessary, line numbers, for the court’s direction. 3 ETI’s appended and linked
documents are voluminous; without page number citations, they are neither useful
nor eligible for consideration by this Court.
2
Id. (citing Reliant Energy, Inc. v. Public Util. Comm’n of Tex., 153 S.W.3d 174, 199–200 (Tex.
App. —Austin 2004, pet. denied).
3
See Arredondo v. Rodriguez, 198 S.W.3d 236, 238–39 (Tex. App.—San Antonio 2006, no
pet.).
3
III. Direction to the PUC Interchange is inappropriate.
ETI’s repeated citations directing the Court to the PUC Interchange to review
PUC proceedings is inappropriate. As noted in State Agencies’ Appellee’s Brief and
explained in State Agencies’ Motion to Strike, this Court cannot consider evidence
that is not formally included in the appellate record.4 Appellant’s repeated efforts to
direct the Court to the vast depths of the PUC Interchange, which holds all filings in
all Commission dockets and projects for multiple decades, are improper citations to
voluminous evidence outside the administrative record.
IV. ETI’s Motion for Judicial Notice should be denied.
The distinction between testimony and orders, outlined in Section I, is also
relevant with respect to ETI’s Motion for the Court to Take Judicial Notice. Judicial
Notice of agency decisions is different than judicial notice of evidence from previous
agency proceedings, in the same way that a court’s decision is eligible for judicial
notice while evidence from the proceeding leading to that decision is not. “It is
inappropriate for a trial judge to take judicial notice of testimony even in a retrial of
the same case.” 5 The distinction between testimony and final decisions of a court or
agency was explained by the Dallas Court of Appeals: “testimony is a mutable
4
Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.); Carlisle v. Philip
Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied).
5
Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(quoting Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex. Civ. App. —San Antonio 1985, writ
ref'd n.r.e.); see also In re J.C., 346 S.W.3d 189, 192-93 Tex. App.—Houston [14 Dist.], 2011,
no pet).
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product of human memory and subject to different interpretations. It does not carry
the high degree of indisputability required to justify taking judicial notice.”6
Testimony also cannot be viewed in a vacuum, without the context of the
entire proceeding in which it was first offered. ETI has requested judicial notice be
taken of testimony from Docket No. 34800. This proceeding, which spanned over
two years, contains over 2500 filings. The Commission has already determined how
much weight to give to the evidence presented in that proceeding, as recorded in the
final order for Docket No. 34800. The fact that the final order does not mention the
testimony is telling. To suggest this Court should go to the interchange to view one
of the 2500 filings is to suggest the Court should supplant the Commission’s decision
on what weight the evidence should be given. Evidence offered by a party in
previous proceedings is neither reliable nor useful to this Court in this proceeding.
ETI’s Motion for Judicial Notice should be denied.
V. Conclusion
WHEREFORE, PREMISES CONSIDERED, State Agencies request that
their Motion to Strike be granted, and that ETI’s Motion for the Court to Take
Judicial Notice be denied. State Agencies also pray for any further relief to which
they may be entitled.
6
Garza v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. ref'd)
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Dated: May 13, 2015
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
DAVID A. TALBOT, JR.
Chief, Administrative Law Division
/s/ Sara R. Hammond
Katherine H. Farrell
State Bar No. 24032396
Sara R. Hammond
State Bar No. 24081003
Assistant Attorneys General
OFFICE OF THE TEXAS ATTORNEY GENERAL
Administrative Law Division
P.O. Box 12548
Austin, Texas 78711
Telephone: (512) 475-4173
Facsimile: (512) 320-0167
E-mail: katherine.farrell@texasattorneygeneral.gov
sara.hammond@texasattorneygeneral.gov
Counsel for Appellee State Agencies
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of State Agencies Reply to ETI’s
Response to State Agencies’ Motion to Strike and Response to ETI’s Motion for the
Court to Take Judicial Notice was transmitted by electronic filing on the 13th day of
May, to the parties of record as listed below:
ENTERGY TEXAS, INC., John F. Williams
Marnie A. McCormick
Appellant DUGGINS WREN MANN & ROMERO, LLP
One American Center
600 Congress Suite 1900
Austin, Texas 78767
Telephone: (512) 744-9300
Facsimile: (512) 744-9399
jwilliams@dwmrlaw.com
mmccormick@dwmrlaw.com
OFFICE OF PUBLIC Ross Henderson
UTILITY COUNSEL, Assistant Public Counsel
OFFICE OF PUBLIC UTILITY COUNSEL
Appellee 1701 N. Congress Avenue
Suite 9-180
P.O. Box 12397
Austin, Texas 78711-2397
Telephone: (512) 936-7500
Facsimile: (512) 936-7525 or 936-7520
ross.henderson@opuc.texas.gov
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PUBLIC UTILITY Elizabeth Sterling
COMMISSION Assistant Attorney General
OF TEXAS, OFFICE OF THE ATTORNEY GENERAL
Environmental Protection Division
Appellee P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-4152
Facsimile: (512) 320-0911
Elizabeth.Sterling@texasattorneygeneral.gov
TEXAS INDUSTRIAL Rex D. Van Middlesworth
ENERGY CONSUMERS, Benjamin Hallmark
THOMPSON KNIGHT, LLP
Appellee 98 San Jacinto Blvd, Ste. 1900
Austin, Texas 78701
Telephone: (512) 469.6100
Facsimile: (512) 469.6180
rex.vanm@tklaw.com
benjamin.hallmark@tklaw.com
/s/ Sara R. Hammond
Sara R. Hammond
Assistant Attorney General
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