in Re Texas-New Mexico Power Company ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00166-CV
IN RE TEXAS-NEW MEXICO POWER COMPANY
Original Proceeding
MEMORANDUM OPINION
Texas-New Mexico Power Company ("TNMP") seeks a writ of mandamus to
compel the trial court to withdraw its order denying its motion to dismiss for want of
jurisdiction and to enter an order granting its motion. The Real Parties in Interest,
Plaintiffs in the trial court below, filed suit against TNMP due to a power surge that
caused damage to their property, which they alleged was caused by TNMP's negligence
and violations of the rules and standards of the Texas Public Utilities Commission
("PUC") and the Texas Utilities Code. TNMP filed a motion to dismiss, alleging that the
PUC had exclusive original jurisdiction over the claims. Because of this, TNMP argues
that the Real Parties in Interest were required to exhaust their administrative remedies as
mandated by the Texas Utilities Code before filing in the trial court. Because they did not
do so, TNMP alleges that the trial court does not have jurisdiction over the claims. The
trial court denied the motion.
A state agency has exclusive jurisdiction when the legislature has established a
pervasive regulatory scheme that evidences an intent "for the regulatory process to be the
exclusive means of remedying the problem to which the regulation is addressed." In re
Southwestern Bell Tel. Co., 235 S.W.3d 619, 624-25 (Tex. 2007). "If an agency has exclusive
jurisdiction to resolve a dispute, a party must first exhaust administrative remedies
before a trial court has subject matter jurisdiction." Id. at 625. The Texas Supreme Court
has explained that the Texas Public Utility Regulatory Act ("PURA"), described in the act
itself as "comprehensive," was intended by the legislature to "comprehend all or virtually
all pertinent considerations involving electric utilities operating in Texas." In re Entergy
Corp., 142 S.W.3d 316, 323 (Tex. 2004). Thus, PURA is "a pervasive regulatory scheme"
granting the PUC exclusive jurisdiction over disputes related to utility rates, operations,
and services. Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 140-41
(Tex. 2018).
The Real Parties in Interest contend that because their claims are based on tort
rather than breach of contract, the requirement to exhaust administrative remedies does
not apply. However, PURA grants the PUC "exclusive original jurisdiction over the rates,
operations, and services of an electric utility." TEX. UTIL. CODE ANN. § 32.001(a).
In re Texas-New Mexico Power Company Page 2
"Services" is intended to be defined as broadly as possible. Oncor, 546 S.W.3d at 139. "The
term includes any act performed, anything supplied, and any facilities used or supplied
by a public utility in the performance of the utility's duties . . . ." Id. The underlying basis
of the claims relate to an extreme power surge that caused a "fireball" to damage their
home, and that it was caused by TNMP's negligence and violations of the PURA.
We find that the claims involve TNMP's "services," and we further conclude that
the scope of the PUC's exclusive jurisdiction encompasses those claims and therefore, the
PUC has exclusive jurisdiction. Accordingly, the Real Parties in Interest were required
to exhaust their administrative remedies before the PUC before seeking relief in the trial
court.
As a general rule, mandamus relief will not issue to correct an incidental trial
court ruling, such as a plea to the jurisdiction, when there is a remedy by appeal. See In
re Puig, 351 S.W.3d 301, 306 (Tex. 2011) (orig. proceeding); In re Entergy Corp., 142 S.W.3d
316, 320 (Tex. 2004) (orig. proceeding). However, there is an exception to this general
prohibition against mandamus review of a trial court's order denying a plea to the
jurisdiction where a party has failed to exhaust administrative remedies before the PUC,
because "permitting a trial to go forward would interfere with the important legislatively
mandated function and purpose of the PUC." In re Entergy, 142 S.W.3d at 321. We find
that mandamus is an appropriate vehicle for TNMP to present this complaint.
In re Texas-New Mexico Power Company Page 3
Therefore, we conditionally grant mandamus relief to Texas-New Mexico Power
Company and direct the 220th District Court to withdraw its order denying its plea to the
jurisdiction and to enter an order that dismisses all claims against TNMP for lack of
subject-matter jurisdiction within 21 days of this opinion. Our writ will issue only if the
court fails to act in accordance with this opinion.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Petition conditionally granted
Opinion delivered and filed August 14, 2019
[OT06]
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