HWY 3 MHP, LLC v. Elec. Reliability Council of Tex.

• Decision Date: 12 March 2015
• Docket Number: NO. 03–14–00303–CV,03–14–00303–CV
• Citation: 462 S.W.3d 204
• Parties: HWY 3 MHP, LLC, Appellant v. Electric Reliability Council of Texas (ERCOT), Appellee
• Court: Texas Court of Appeals

462 S.W.3d 204

HWY 3 MHP, LLC, Appellant

v.Electric Reliability Council of Texas (ERCOT), Appellee

NO. 03–14–00303–CV

Court of Appeals of Texas, Austin.

Filed: March 12, 2015

Leslie C. Thorne,J. Iris Gibson, Haynes and Boone, LLP, Austin, Benjamin L. Mesches, Noah Nadler, Haynes & Boone, LLP, Dallas, for Appellant.

Nathan M. Bigbee, John R. Hulme, Assistant Attorneys General, Environmental Protection & Administrative Law Div., Austin, Chad V. Seely, Corporate Counsel, Electric Reliability Council of Texas, Inc, Austin, J. Hampton Skelton, Brandon Duane Gleason, Skelton & Woody, Austin, for Appellee.

Before Justices Puryear, Pemberton, and Field

OPINION

David Puryear, Justice

Until 2008, HWY 3 MHP, LLC (“HWY 3”), was a registered retail-electric-service provider that bought electricity at wholesale prices and sold it to its customers who prepaid for service. To satisfy the needs of its customers, HWY 3 entered into a standard-form-market-participant agreement with the Electric Reliability Council of Texas (ERCOT). See FPL Energy, LLC v. TXU Portfolio Mgmt. Co., L.P., 426 S.W.3d 59, 61 (Tex.2014) (providing that with few exceptions, ERCOT “manages the transmission of electricity through an interconnected network—or grid—of transmission lines”). That agreement set out the relationship between HWY 3 and ERCOT, including what constitutes a default under the agreement as well as remedies for defaults, and required HWY 3 to comply with certain financial obligations and with ERCOT's Protocols.See Public Util. Comm'n v. Constellation Energy Commodities Grp., Inc., 351 S.W.3d 588, 594–95 (Tex.App.–Austin 2011, pet. denied) (explaining that protocols adopted by ERCOT “are rules that provide the framework for the administration of the Texas electricity market”); BP Chems., Inc. v. AEP Tex. Cent. Co., 198 S.W.3d 449, 452 (Tex.App.–Corpus Christi 2006, no pet.) (providing that utilities are obligated “to abide by the procedures established by ERCOT”).

In May 2008, ERCOT determined that HWY 3 needed to post an additional deposit of nearly one million dollars to continue its operations. The issues of whether ERCOT timely informed HWY 3 of this new obligation and whether ERCOT provided HWY 3 with the time needed to comply are contested by the parties; however, what is not in dispute is that after concluding that HWY 3 had breached the agreement by failing to pay the additional deposit, ERCOT transferred all of HWY 3's customers to other providers and later filed a breach-of-contract claim against HWY 3. See 16 Tex. Admin. Code § 25.361 (2014) (Public Util. Comm'n of Tex., Electric Reliability Council of Tex. (ERCOT)) (delegating certain powers to ERCOT).

Approximately two years after ERCOT filed its suit, HWY 3 filed a counterclaim contending that ERCOT had breached the agreement. In response, ERCOT filed a plea to the jurisdiction asserting that the Public Utility Commission (the “Commission”) has exclusive jurisdiction over the claims presented by HWY 3 and that HWY 3 failed to exhaust its administrative remedies. Accordingly, ERCOT asked the district court to dismiss HWY 3's counterclaim. Once ERCOT filed its plea, HWY 3 filed a response arguing that the Commission does not have exclusive jurisdiction over its counterclaim and requesting that the district court deny the plea.

After considering the various arguments and filings, the district court issued an order granting ERCOT's plea and dismissing with prejudice HWY 3's counterclaim “in [its] entirety.” Shortly after receiving the district court's ruling, HWY 3 filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing certain interlocutory appeals); Tex. R. App. P. 26.1(b) (setting out time to file accelerated appeal), 28.1(a) (listing types of accelerated appeals). We will dismiss this appeal for lack of jurisdiction.

DISCUSSION

In its appeal, HWY 3 contends that the district court erred by granting ERCOT's plea because the Commission does not have exclusive jurisdiction over the counterclaim. In another set of arguments, HWY 3 urges that even if the Commission has exclusive jurisdiction over portions of the counterclaim, it does not have “exclusive jurisdiction over contractual disputes seeking damages.” On the other hand, ERCOT insists that the district court properly granted the plea to the jurisdiction. Alternatively, ERCOT argues that this Court does not have jurisdiction over this appeal because the district court's ruling was not an appealable order. Because this last argument concerns our jurisdiction to consider this appeal at all, we consider that argument first.

“Subject matter jurisdiction presents a question of law” that appellate courts “review de novo.” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex.2013). Moreover, the jurisdictional question at issue in this appeal presents a matter of statutory construction, which appellate courts also perform de novo. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). When performing this task, our primary objective is to give effect to the legislature's intent. Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex.2011). To ascertain that intent, we rely on the plain meaning of the words in the statute “unless a different meaning is supplied by legislative definition or is apparent from the context, or the plain meaning leads to absurd results,” Texas Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010), and we look to the entire act and not just to “isolated portions,” 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex.2008). If “a statute's words are unambiguous and yield but one interpretation,” we give “such statutes their plain meaning without resort to rules of construction or extrinsic aids.” Combs v. Roark Amusement & Vending, L.P., 422 S.W.3d 632, 635 (Tex.2013). Further, we presume that “the Legislature selected language in a statute with care and that every word or phrase was used with a purpose in mind,” First State Bank, 325 S.W.3d at 635, and we endeavor not to interpret a statute “in a manner that renders any part of the statute meaningless or superfluous,” Columbia Med. Ctr. of Los Colinas, Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex.2008).

In general, “only final judgments are appealable,” but the Civil Practice and Remedies Code does contain a narrow exception to this rule. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 76 (Tex.2011) ; see Tex. Civ. Prac. & Rem. Code § 51.014 (listing certain interlocutory orders from trial courts that may be appealed); see also Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex.2001) (explaining that “party may not appeal an interlocutory order unless authorized by statute”). The provision of the Code at issue in this case allows a party to appeal the interlocutory order of a trial court that “grants or denies a plea to the jurisdiction by a governmental unit.” Tex. Civ. Prac. & Rem. Code § 51.014(a)(8). Moreover, the Code defines the term “governmental unit” and clarifies that the term includes, in relevant part, the following:

(D) any other institution, agency, or organ of government the status and authority of which are derived from the Constitution of Texas or from laws passed by the legislature under the constitution.

Id. § 101.001(3)(D).¹

As HWY 3 explains, the supreme court was recently confronted with determining whether an entity qualified as a governmental unit under subsection 101.001(3)(D) and, in turn, under subsection 51.014(a)(8). See LTTS Charter Sch., 342 S.W.3d 73. In particular, the court determined that an “open-enrollment charter school qualifies ... as an ‘institution, agency, or organ of government’ deriving its status and authority from legislative enactments.” Id. at 75 (quoting Tex. Civ. Prac. & Rem. Code § 101.001(3)(D) ). Accordingly, the court decided that the school was entitled to pursue an interlocutory appeal of the denial of its plea to the jurisdiction. Id. ; see Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).

When reaching this conclusion, the court pointed to specific grants of authority to open-enrollment charter schools, including all powers given to traditional public schools under Title 2 of the Education Code. LTTS Charter Sch., 342 S.W.3d at 77 (citing Tex. Educ. Code § 12.104(a) ). Furthermore, the court commented that open-enrollment charter schools “have statutory entitlements to state funding” and to services that “school districts receive,” are generally subject to the laws and rules pertaining to public schools, and are obligated to comply with many of the requirements of educational programs that apply to traditional public schools, including accountability programs. Id. at 78 (citing Tex. Educ. Code §§ 12.103(a), .104, .106(a)). In addition, the court noted that open-enrollment charter schools are subject “to a host of statutes that govern governmental entities outside the Education Code,” including statutes imposing open-meetings requirements, public-information requirements, and record-regulation requirements. Id. at 78 (citing Tex. Educ. Code §§ 12.1051, .1052). Finally, the court explained that open-enrollment charter schools are expressly considered “ ‘governmental entit[ies]’ for ... [statutes] relating to property held in trust and competitive bidding,” “ ‘political subdivision[s]’ for ... [statutes concerning] procurement of professional services,” and “ ‘local government[s]’ for ... [statutes governing] authorized investments.” Id. at 78 (citing Tex. Educ. Code § 12.1053 ). When summarizing its reasoning, the court stated that it was “confident that the Legislature considers” open-enrollment charter schools as “institution[s], agenc[ies], or organ[s] of government” under subsection 101.001(3)(D) given their statutory status as part of the public school system and given “their authority to wield” the powers given to public schools “and to receive and spend state tax dollars (and in many ways to function as a governmental entity).” Id. (internal...