City of Corpus Christi v. Public Utility Commission

• Decision Date: 17 May 1978
• Docket Number: No. B-7028,B-7028
• Citation: 572 S.W.2d 290
• Parties: CITY OF CORPUS CHRISTI, et al., Appellants, v. PUBLIC UTILITY COMMISSION of Texas, et al., Appellees.
• Court: Texas Supreme Court

Page 290

572 S.W.2d 290

CITY OF CORPUS CHRISTI, et al., Appellants, v. PUBLIC UTILITY COMMISSION of Texas, et al., Appellees.

No. B-7028.

Supreme Court of Texas.

May 17, 1978.

Rehearing Denied July 5, 1978.

McGinnis, Lochridge and Kilgore, B. D. St. Clair and Robert C. McGinnis, Austin, for appellants.

Dyer, Redford, Burnett, Wray & Woolsey, W. N. Woolsey, Corpus Christi, John L. Hill, Atty. Gen., Joyce B. Carpenter, Asst. Atty. Gen., Austin, for appellees.

SAM D. JOHNSON, Justice.

The instant case requires an interpretation of the Public Utility Regulatory Act, Article 1446c, Texas Revised Civil Statutes Annotated, and presents a central issue of first impression.

Appellants Corpus Christi, et al., here seek direct appellate review of the order of the district court refusing to enjoin enforcement of the final order of the Public Utility Commission granting an increase of electric utility rates for Central Power and Light Company within appellant cities. The jurisdiction of the Supreme Court is alleged pursuant to Article V, Section 3-b, Texas Constitution, Article 1738a, Texas Revised Civil Statutes Annotated, and Rule 499a, Texas Rules of Civil Procedure, which provide for direct appeal to this court of any order of the trial court granting or denying an injunction on the grounds of the validity or invalidity of an administrative order. Appellants are thirty-two of the one hundred seven incorporated cities provided electric utility service by appellee Central Power and Light in a service area comprising forty-four counties and one hundred forty-four thousand square miles in South Texas.

Central Power and Light filed a statement of intent to change rates with each of the thirty-two cities under the Public Utility Regulatory Act, Supra, Section 43(a). Each city requested that Central Power and Light provide information as to "rate base, revenue, expenses, investment and rate of return" within the boundaries of each municipality pursuant to Section 23 of the Act in order to make its individual determination of the requested rate increase. Central Power and Light declined to furnish the "separated data" requested by each city and tendered instead uniform "system-wide data." ¹ The term "separated data" refers to that information regarding assets and operations of the utility solely within each particular municipal boundary. "System-wide data" refers to information regarding the assets and operations of the utility throughout the entire area it serves without a breakdown as to individual cities served.

The Public Utility Regulatory Act, Section 17(a), provides that municipalities will continue to have exclusive original jurisdiction over rates within their boundaries, but under Section 17(d) the Public Utility Commission is vested with appellate jurisdiction. Pursuant to such provisions involving electric rates and after each city denied the requested rate increase, Central Power and Light appealed to the Public Utility Commission, which consolidated each of the cities' cases as its Docket No. 167, et al. ² The Commission heard the case on the system-wide data presented by Central Power and Light over the cities' objection. This action by the Commission, hearing the case on the system-wide data, occasions the principal question to be resolved in the case at bar. Upon Central Power and Light's request, the Commission granted an interim order setting temporary rates on January 24, 1977.

As will be more fully explained, the Commission, on February 23, 1977, entered an interim order Nunc pro tunc setting forth a finding of imminent peril not included in the January 24 order. The final order was entered by the Commission on February 25, 1977 granting a rate increase of approximately $23,000,000. The litigation in Public Utility Commission Docket No. 167, et al., is now before this court in two distinct matters: an application for writ of error predicated on the interim order of January 24, 1977; and the instant direct appeal.

THE APPLICATION FOR WRIT OF ERROR

After the Commission entered its interim order setting temporary rates on January 24, 1977, the cities filed suit in the 98th district court of Travis County to enjoin enforcement of the Interim order. The cities contended that the interim order was invalid as the Commission had no express or implied power to set Temporary rates ³ under the Public Utility Regulatory Act. Further, the cities urged that the interim order was invalid for failure to recite a finding of "imminent peril to the public health, safety, or welfare" as required by the Administrative Procedure Act, Article 6252-13a, Section 16(c), Texas Revised Civil Statutes Annotated. The 98th district court of Travis County granted a temporary injunction. Central Power and Light appealed to the court of civil appeals. ⁴

In points 1 and 2 of their brief in the court of civil appeals the cities again attacked the validity of the interim order. Point 1 attacked the interim order on the grounds that the Commission had no express or implied authority under the Public Utility Regulatory Act to make temporary orders in cases it heard on appeal from a determination of a municipality. Point 2 reurged the cities' argument that the interim order was invalid for failure to comply with the Administrative Procedure Act, Section 16(c), requiring that the orders of all administrative agencies to be given immediate effect contain a finding of "imminent peril to the public health, safety, or welfare." The court of civil appeals reversed and rendered the judgment of the trial court and vacated the temporary injunction. Public Utility Com'n v. City of Corpus Christi, 555 S.W.2d 509 (Tex.Civ.App. Waco 1977, writ filed). The cities then filed an application for writ of error which is now pending before this court in No. B-7136, City of Corpus Christi, et al. v. Public Utility Commission of Texas, et al. In points of error 3, 4, and 5 of their application for writ of error to this court the cities again urge that the interim order is invalid as the Public Utility Commission was without express or implied authority to enter a temporary order in an appellate case under the Public Utility Regulatory Act. Further, the cities reassert that the interim order is rendered invalid because the Public Utility Commission failed to find the "imminent peril" required by the Administrative Procedure Act, Section 16(c).

THE DIRECT APPEAL

Meanwhile, following the entry of the Commission's final order of rate increase on February 25, 1977, the cities filed a second and distinct suit to enjoin enforcement of the final order of the Commission. The 126th district court of Travis County denied the requested injunction. The cities then instituted the instant direct appeal to the Supreme Court of the trial court's denial of the injunction on the basis of the validity of an administrative order. The thrust of the cities' argument in the trial court, and again as their points of error 1 through 5 in this direct appeal, is that the final order is invalid as it is based upon system-wide data, rather than data separated according to each municipality as they allege is required by the Public Utility Regulatory Act.

However, as their point of error number 6 in this direct appeal, the cities again urge that the Interim order is invalid as it goes beyond the express or implied powers of the Public Utility Commission under the Public Utility Regulatory Act. Again, the cities assert that the absence of the finding of "imminent peril" required by Section 16(c) of the Administrative Procedure Act further invalidates the interim order.

Appellee Central Power and Light argues that this court has no jurisdiction to review the cities' point of error number 6 by direct appeal as the cities have previously attacked the same interim order on the same grounds in the court of civil appeals, albeit in the appeal of a different cause of action. The basis of Central Power and Light's assertion is Rule 499a which sets forth the procedures applicable to direct appeal. Rule 499a(c) provides that "(s)uch appeal shall be in lieu of an appeal to the Court of Civil Appeals . . . ." Tex.R.Civ.P. 499a(c). This court has long recognized the logical implication of Rule 499a that an appellant must choose between an appeal to the court of civil appeals and a direct appeal to the Supreme Court and cannot pursue both. Railroad Commission v. Shell Oil Co., 146 Tex. 286, 206 S.W.2d 235 (1947).

Rule 499a creates an option for an appellant coming within its application. An appellant may proceed by regular appeal to the court of civil appeals or an appellant may elect to pursue a direct appeal to the Supreme Court. An appellant may do either, but an appellant may not do both. The Cities exercised no election to pursue the appeal to the court of civil appeals in the cause involving the interim order; they had no reason to do so as the trial court's injunction was in the cities' favor. Rather, it was the Commission and the utility which exercised their option as appellants to appeal to the court of civil appeals in that case. On the other hand, it is the Cities who are appellants in the instant case. As appellants, it is the cities which have elected to pursue this direct appeal to the Supreme Court in lieu of an appeal to the court of civil appeals.

Central Power and Light argues, however, that the cities, by asserting their argument defensively in the cause involving the interim order in the court of civil appeals, chose review of the merits of point number 6 by the intermediate appellate court and foreclosed Supreme Court jurisdiction by direct appeal in the instant case. We are of the opinion that the exercise of Central Power and Light's option for court of civil appeals review in a different cause of action will not infringe the cities' Rule 499a option to seek direct appeal consideration here. Central Power and Light, not the cities, initiated appeal to the court...