Public Utility Com'n of Texas v. J.M. Huber Corp., 13558

• Decision Date: 20 April 1983
• Docket Number: No. 13558,13558
• Citation: 650 S.W.2d 951
• Parties: PUBLIC UTILITY COMMISSION OF TEXAS, et al., Appellants, v. J.M. HUBER CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 951

650 S.W.2d 951

PUBLIC UTILITY COMMISSION OF TEXAS, et al., Appellants, v. J.M. HUBER CORPORATION, Appellee.

No. 13558.

Court of Appeals of Texas Austin.

April 20, 1983.

Rehearing Denied May 11, 1983.

Mark White, Atty. Gen., Leon J. Barish, Asst. Atty. Gen., Mary Joe Carroll, Clark, Thomas, Winters & Shapiro, Austin, for appellants.

Lawrence S. Smith, Small, Craig & Werkenthin, Austin, for appellee.

Before PHILLIPS, C.J., and SHANNON and POWERS, JJ.

POWERS, Justice.

Pedernales Electric Cooperative, Inc. (Pedernales) and the Public Utility Commission of Texas appeal from a judgment of the trial court which reverses a final order of the Commission and remands to it an electric rate proceeding conducted by the agency under Tex.Rev.Civ.Stat.Ann. art. 1446c (1980), the Public Utility Regulatory Act (PURA). We will affirm the trial court's judgment.

J.M. Huber Corporation owns and operates through a subsidiary a rock-crushing plant situated within the municipal limits of the City of Marble Falls, Texas. The plant consumes electricity supplied by Pedernales, a public utility which serves Marble Falls and numerous other municipalities and unincorporated areas. The City Council of Marble Falls retains exclusive original jurisdiction over electric rates charged by Pedernales within the city's municipal limits. PURA §§ 17, 26. The Huber plant falls within a category of Pedernales customers consuming large quantities of electricity, for which they are charged according to the utility's tariff schedule "LP," a rate schedule "[a]pplicable to all commercial and industrial consumers whose demands for all users [sic] are 50 KW or more, and whose uses are not covered by a specific rate schedule."

The City Council, on October 10, 1978, amended the Pedernales tariff by an ordinance which reduced the rate which may be charged "LP" customers within the city, reciting that after hearing the council found "unreasonably high" the rate theretofore charged such customers.

Pedernales appealed to the Commission, invoking that agency's power to "fix such rates as the municipality should have fixed in the ordinance ...," PURA § 26(e), and naming Marble Falls as "respondent" in the appeal. Huber intervened in the agency proceeding. After hearing, the Commission's hearings examiner filed a report with the Commission reciting the "Procedural History" of the case as well as eleven "Findings of Fact" and five "Conclusions of Law" which he recommended to the Commission. The Commission on October 29, 1979 issued the following order:

ORDER

In public meeting at its offices in Austin, Texas, the Public Utility Commission of Texas finds that the above-styled application was processed in accordance with applicable statutes by an Examiner who prepared and filed a report containing Findings of Fact and Conclusions of Law, which Examiner's Report is hereby modified and the following Conclusions of Law are substituted for the corresponding Conclusions originally proposed:

1. It is not in the public interest to reduce the rates of some members of a single class of customers without making corresponding adjustments for all other members of the same class or other classes of customers affected by the adjustment.

* * *

* * *

4. It is not necessary under the facts of this case to correct the disparity between the rate of return of the LP Class and the system as a whole.

5. It is just and reasonable that the General Counsel of the Commission be directed to initiate an investigation to determine the necessity of a formal inquiry into the rate structure of Pedernales Electric Cooperative, Inc.

The Commission further issues the following Order:

The relief sought by Pedernales Electric Cooperative, Inc. is hereby granted and Pedernales is directed to maintain its pre-existing rates for the Large Power Class within Marble Falls.

The General Counsel of the Commission is hereby directed to initiate an investigation to determine if the need exists for a formal inquiry into the rates of Pedernales.

One observes that the foregoing order does not itself make or declare findings of fact and conclusions of law as required by Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 16(b) (Supp.1982), the Administrative Procedure and Texas Register Act (APTRA), nor does it expressly incorporate or adopt by reference any findings of fact or conclusions of law "recommended" by the hearing examiner, a practice approved in Imperial American Resources Fund, Inc. v. Railroad Commission of Texas, 557 S.W.2d 280, 285 (Tex.1977). Nevertheless, no complaint is made on appeal or in the court below about this aspect of the Commission's order, and because it plainly determines a matter within the agency's jurisdiction and purports to terminate the rate proceeding, we will treat it as a final order of which we have jurisdiction under APTRA §§ 19 and 20 and which impliedly adopts the hearing examiner's findings of fact and conclusions of law as the latter are modified within the terms of the order itself.

Huber filed in the Commission a motion for rehearing wherein it contended that the agency erred as a matter of law in adopting the first conclusion of law set forth in the order quoted above, owing to the reasons set out in the motion. The Commission "denied" the motion for rehearing.

Huber thereafter sued in a district court of Travis County for judicial review of the Commission's final order under APTRA § 19(e), contending the order to be erroneous "as a matter of law because it violates the Public Utility Regulatory Act, Sections 17, 26, 38, 40 and 45," averring particularly that the order perpetuates a prohibited discriminatory rate system and has the practical effect of depriving Marble Falls of the exclusive original jurisdiction over electric rates granted the city by the terms of PURA § 17(a). The Commission appeared and answered in the suit after service of citation. Pedernales intervened. After hearing, the trial court reversed the Commission's order and remanded the proceeding to the Commission, from which judgment Pedernales and the Commission have prosecuted this appeal on several points of error.

In Pedernales' first point of error, it challenges Huber's standing to maintain a suit for judicial review under APTRA § 19(e) and PURA § 69. Pedernales argues the general proposition that any judgment rendered by a district court in a proceeding invoked by a plaintiff who lacks the requisite interest in the controversy, as that interest is specified in the common law, a constitutional provision, or a statute which confers upon the district court a special jurisdiction, as APTRA § 19(e) and PURA § 69 do, amounts to nothing more than an advisory opinion; and an advisory opinion is beyond the constitutional power of a district court to render in the exercise of the general and special jurisdiction given the district courts by art. V, § 8 of the Constitution of Texas. It follows, of course, that the Legislature is powerless to authorize a Travis County district court to render an advisory opinion pursuant to its exercise of any special statutory jurisdiction which the Legislature may confer upon that court or other district courts. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780, 781-83 (Tex.1960) (in granting the district courts special jurisdiction to adjudicate controversies under the Declaratory Judgments Act, Tex.Rev.Civ.Stat.Ann. art. 2524-1 (1965), for example, the Legislature did not intend to authorize the giving of advisory opinions in the exercise of that jurisdiction in violation of the constitutional jurisdictional requirement of a "justiciable controversy"); Ex parte Towles, 48 Tex. 413, 442-43 (Tex.1877) (the Legislature, in a statute providing for a right of "appeal" to the district court from certain decisions of a commissioner's court, may not by that grant of special jurisdiction constitutionally confer upon the district courts the power to determine political questions).

In our consideration of Pedernales' first point of error, we are not unmindful of several rules applicable to the question of a plaintiff's "standing" to maintain a suit in district court:

1. The question of a plaintiff's standing to apply for judicial relief from the decision of an administrative agency has been regarded almost universally as being a question which "does not touch the merits of the suit, but merely the authority of the [court] to entertain it." Mitchell v. United States, 313 U.S. 80, 92, 61 S.Ct. 873, 875, 85 L.Ed. 1201 (1941); 2 Am.Jur.2d Administrative Law § 575, at 393-96 (1962).

2. The statutory rights to judicial review of the Commission's final orders, given in PURA § 69 and APTRA § 19(e), are statutory grants of special jurisdiction to Travis County district courts; and such special jurisdiction is in addition to the original general jurisdiction and special jurisdiction given all district courts in art. V, § 8 of the Constitution of Texas. Without the grant of this special jurisdiction to the district courts of Travis County, they would be powerless to review the decisions of administrative agencies absent a violation of a constitutional right or an adverse effect upon a vested property right. Stone v. Texas Liquor Control Board, 417 S.W.2d 385 (Tex.1967); Policemen's & Firemen's Civil Service Commission v. Blanchard, 582 S.W.2d 778 (Tex.1979).

3. "The rule is well settled ... 'that there is no presumption of jurisdiction when a court, although it is one of general jurisdiction, exercises special statutory powers in a special statutory manner or otherwise than according to the course of the common law ....' " Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1089 (Tex.1926).

4. The question of jurisdiction is fundamental and can be raised at any time in the trial of a case or on appeal. Roberts v. Roberts, 165 S.W.2d 122 (Tex.Civ.App.1942, writ ref'd w.o.m.).

It is uncertain which of these venerable rules no longer...