Southwestern Bell Tel. Co. v. Public Utility Commission of Texas, 13466
| Decision Date | 06 May 1981 |
| Docket Number | No. 13466,13466 |
| Citation | 615 S.W.2d 947 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. PUBLIC UTILITY COMMISSION OF TEXAS et al., Appellees. |
| Court | Texas Court of Appeals |
Robert J. Hearon, Jr., Graves, Dougherty, Hearon, Moody & Garwood, Austin, for Southwestern Bell Tel. Co.
Mark White, Atty. Gen., Ronald G. Knight and Martha V. Terry, Asst. Attys. Gen., Austin, for Public Utility Commission of Texas.
Mike Willatt, Austin, for TATAS and TARS.
Brook Bennett Brown, McGinnis, Lochridge & Kilgore, Austin, for intervenors TASA and MUZAK.
Don R. Butler, Austin, Lee Holt, City Atty., Galen M. Sparks, Asst. City Atty., City of Dallas, Dallas, for Texas Municipal League.
Ray G. Besing, Besing & Armstrong, P.C., Dallas, for MCI Telecommunications Corp.
Southwestern Bell Telephone Company sued the Public Utility Commission in the district court of Travis County for judicial review of a final order promulgated by the agency. That order requires that the utility commence charging for its utility services sums designed to produce an annual increase in the utility's revenue equal to approximately $114.3 million, and requires it to refund monies previously collected from its customers under a system of charges designed to produce a higher increase in annual revenue.
The Commission required the utility to implement the order commencing February 28, 1981. Before that date, the utility filed its suit for judicial review, ancillary to which it sought and obtained from the district court a temporary restraining order suspending enforcement of the Commission's order. The temporary restraining order was renewed by a series of such orders issued by the district court.
On March 20, 1981, the district court denied the utility's application for a temporary injunction, by which the utility sought to enjoin enforcement of the Commission's final order pending a final hearing in the district court on the merits of its suit for judicial review. Thereafter, the distinct court entered its last temporary restraining order effective until April 3, 1981.
The utility immediately appealed to this Court for a review of the district court's denial of the application for temporary injunction. Ancillary to its appeal, the utility applied to this Court for an injunction to preserve our jurisdiction pending determination of the interlocutory appeal to this Court. We issued a temporary injunction for that purpose effective April 2, 1981.
Having now considered the utility's interlocutory appeal, we conclude that the district court did not abuse its discretion in denying the utility's application for a temporary injunction, and therefore affirm the order of the district court.
This appeal arose from the following events:
In July 1980, the utility filed with the Commission an application to increase the utility's annual revenue in the amount of $326.3 million. The Commission conducted the requisite hearing on the application during September and October 1980. During the period of the hearing, the Commission's staff recommended that the utility receive an increase in its annual revenue equal to $152.8 million.
When the Commission had not ruled on the application by November 11, 1980, the utility acted under PURA § 43(e) 1 to unilaterally put into effect a temporary system of charges to its customers. Although the utility could lawfully have put into effect rates designed to produce the annual revenue contemplated in its application, it chose to implement rates designed to produce a lesser sum governed by the $152.8 million recommended by the Commission's staff.
In connection with this action, the Commission approved the form, sureties and amount of the bond posted by the utility as required by Section 43(e) of PURA. Under Section 43(f) of PURA these rates implemented by the utility are temporary and are superseded on service of the Commission's final order directing the implementation of other rates.
On January 29, 1981, the Commission rendered and issued its order relative to the utility's application. The order adopted the report of the Commission's hearings examiner with minor amendments. The order established an annual revenue increase equal to $114.3 million and directed the utility to refund the proper portion of the excess which resulted from the higher charges unilaterally implemented by the utility. By letter dated February 27, 1981, the Commission directed the utility to put into effect a reduced system of charges, designed to produce the annual revenue increase of $114.3 million, such new rates to become effective February 28, 1981.
The utility appealed the Commission's final order to a district court in Travis County, contending that the order was invalid because it resulted from numerous errors made by the Commission relative to several component parts of estimated revenues, estimated operating expenses, and rates of return. The utility contends these errors culminate in a rate of return that is "wholly inadequate and confiscatory." The claimed errors included want of substantial evidence to support the order generally; violation of numerous sections of PURA and TAPTRA 2 violation of constitutional guarantees; errors in handling "known and measurable changes" brought timely to the Commission's attention before rendition of the final order; arbitrariness in disallowing expenses required to be paid by the utility under a contract with its parent company, and arbitrariness in allowing the utility to recover only 1.5% of such contract expenditures; errors in adjusting the utility's depreciation reserve; and application of an erroneous rate of return to a smaller portion of the utility's capital structure than was appropriate, compounding other errors and denying the utility its right to recover operating expenses and to earn the rate of return provided by law. The district court, of course, has not determined these issues to date.
In this interlocutory appeal, the utility contends that the district court abused its discretion by failing properly to apply the law in two respects: (1) in permitting the intervention of other litigants and (2) in refusing to grant the temporary injunction sought by the utility.
We overrule the first contention. If an order of a trial court denying intervention is not reviewable by interlocutory appeal, an order granting intervention is a fortiori not reviewable by interlocutory appeal. See Mueller v. Banks, 302 S.W.2d 447 (Tex.Civ.App. Eastland 1957, writ ref'd). Since no final order has been entered by the trial court, we have no jurisdiction to consider this issue at this time. Sun Oil Co. v. High Plains Underground Water Conservation Dist., 426 S.W.2d 347 (Tex.Civ.App. Amarillo 1968, no writ).
The utility's second contention raises more difficult and fundamental questions involving the scope and intended effect of PURA and TAPTRA, particularly the provisions of Section 19 of TAPTRA which govern judicial review of administrative agency actions.
Section 85 of PURA authorizes the district court, Courts of Civil Appeals, and the Supreme Court of Texas, to suspend, in whole or in part, the operation of the Commission's order during the pendency of "an appeal." We construe the word "appeal" to include the filing of a petition for judicial review under Section 19 of TAPTRA. The named courts are instructed by Section 85 of PURA to grant or refuse an application to "stay" or suspend a Commission order in accordance with the practice of courts of equity. In this case, the district court denied such an application and the issue before us is whether the court abused its discretion in doing so. Southwestern Bell Tel. Co. v. Public Utility Comm'n, 571 S.W.2d 503 (Tex.1978).
The Commission's rate order may be suspended when three things are made to appear: (1) that there is a reasonable "probability" that the utility will succeed on the merits of its claim, after final hearing; (2) that the loss to the utility will be irreparable; and (3) that the customers of the utility will be adequately protected by bond during the period of time the Commission's order is suspended. Id. These three considerations may involve, of course, a consideration of many sub-issues, but a key consideration is always whether the loss alleged by the utility will be irreparable.
The utility claims that it will suffer irreparable loss if the Commission's order is not suspended during the period of judicial review. The loss claimed to be irreparable by the utility will follow in consequence of its being forced to implement rates that are too low, resulting either in "confiscation" or the lesser loss which follows from being forced to implement rates that are something less than "just, fair and reasonable." PURA § 18.
The utility claims that even if its contentions are finally sustained on the merits, it will nevertheless suffer a loss because, as a matter of law, it can never obtain recoupment for the difference between the lower rates ordered by the Commission and the higher rates the utility claims it is entitled to charge and which it intends to show on judicial review are "just, fair and reasonable." This proposition is based upon the claim that the Commission is forbidden to engage in "retroactive rate-making"; thus the agency would be powerless to allow recoupment of any such loss following the utility's success on appeal and a final court order of remand for further proceedings.
The prohibition against "retroactive rate-making" is founded upon the premise that rate-making is a legislative function of an administrative agency and like all legislation, is generally prospective only. For example, the opinion in Railroad Commission v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559 (1956) (Alvin ) contains this language:
...
To continue reading
Request your trial
-
Ficarra v. Department of Regulatory Agencies, Div. of Ins.
...whether the statute surprises persons who have long relied on a contrary state of the law." Southwestern Bell Tel. Co. v. Public Util. Comm'n of Tex., 615 S.W.2d 947, 956-57 (Tex.Civ.App.1981); accord Texas Water Rights Comm'n v. Wright, 464 S.W.2d 642, 649 (Tex.1971); see 2 Singer § 41.05,......
-
Centerpoint Energy Entex v. Railroad Com'n, 03-04-00731-CV.
...muster concerning its vested rights in the approved rates. See Tex. Const. art. I, § 16; Southwestern Bell Tel. Co. v. Public Util. Comm'n of Tex., 615 S.W.2d 947, 956-57 (Tex.App.-Austin 1981), writ ref'd n.r.e., 622 S.W.2d 82 (Tex.1981). Thus, Entex argues, the Commission's review cannot ......
-
State Farm Lloyds v. Rathgeber
...(same).24 See ASOP 9, at 6 (“A rate is an estimate of the expected value of future costs.”).25 See, e.g., Southwestern Bell Tel. Co. v. Public Util. Comm'n, 615 S.W.2d 947, 954–55 (Tex.Civ.App.–Austin 1981, no writ) (distinguishing retrospective ratemaking from administrative proceedings on......
-
Texas Dept. of Public Safety v. Story
...& Power Co., 761 S.W.2d 835, 846 (Tex.App.-Austin 1988), rev'd on other grounds, 797 S.W.2d 12 (Tex.1990); Sw. Bell Tel. Co. v. Public Util. Commn. of Tex., 615 S.W.2d 947, 954 (Tex.Civ.App.-Austin), writ ref'd n.r.e per curiam, 622 S.W.2d 82 STANDARD OF REVIEW IN THIS COURT In an appeal of......
-
CHAPTER 2 The Strange Career of Private Property And The Police Power
...Limiations on Retroactive Civil Legislation, 51 Nw. U.L Rev. 540, 561 (1956); Southwestern Bell Tel. Co. v, Public Util. Comm'n of Tex., 615 S.W.2d 947, 956-57 (Tex. Civ. App. 1981); Incorporated Village of Northport v. Guardian Fed. Sav. & Loan Assoc., 384 N.Y.S.2d 923, 928 (N.Y. Sup. Ct. ......