IN RE: CENTERPOINT ENERGY HOUSTON ELECTRIC (2021)

Three cases we decide this term address whether the exclusive jurisdiction of the Texas Public Utility Commission (PUC) over an electric utilitys rates, operations, and services extends to certain issues raised in common-law tort suits against utilities.

In this case, a good Samaritan was electrocuted while attempting to help the victims of a wreck that downed a CenterPoint power line, and his estate and family sued CenterPoint for negligence. CenterPoints plea to the jurisdiction presents the following question: does the PUC have exclusive jurisdiction to adjudicate issues of duty and breach that underlie these plaintiffs claims?

We hold that the PUC does not have exclusive jurisdiction because the plaintiffs and their decedent are not “affected persons” statutorily authorized to bring a complaint in the PUC. In addition, whether a regulatory scheme has displaced the common-law duty of reasonable care is a matter for courts—not agencies—to decide, and CenterPoint correctly argued in the trial court that the common-law standard applies. It is for a trier of fact to determine whether the utility breached that standard, as the PUC itself has long acknowledged. The trial court therefore did not abuse its discretion by denying CenterPoints plea to the jurisdiction, and we deny its petition for writ of mandamus.

Background

Two vehicles were involved in a collision in southern Harris County after the driver of one vehicle ran a red light. The vehicle that ran the light hit a wooden utility pole, causing the pole and the power line attached to it—owned and maintained by CenterPoint Energy Houston Electric, LLC—to fall to the ground. Glenn Wood Higgins was driving near the wreck and stopped to render aid. While walking toward the vehicle, plaintiffs allege that Higgins came into contact with electricity radiating through the ground from the downed power line. The contact knocked his body onto the line, shocking him and catching his clothes on fire. Higgins suffered severe burns and passed away three weeks later.

Higginss family members

and estate (collectively, plaintiffs) brought wrongful-death and survival claims against CenterPoint in Harris County Probate Court. Plaintiffs asserted causes of action for common-law negligence and gross negligence.

They alleged that CenterPoint has a duty to design, construct, operate, and maintain its electricity distribution system to de-energize portions of the distribution lines promptly when they experience faults. Plaintiffs asserted that CenterPoints line protection scheme was not prudently designed, and that CenterPoint chose and installed an inappropriately sized fuse. Fuses are placed on power lines to stop the flow of electricity and de-energize the line in the event of a fault. Plaintiffs contended that an appropriate fuse would have de-energized the downed power line in five seconds or less—before Higgins had even exited his truck.

CenterPoint filed a plea to the jurisdiction, contending that the PUCs exclusive jurisdiction over an electric utilitys rates, operations, and services extends to adjudicating whether CenterPoints line-protection measures complied with the law and industry standards. In CenterPoints view, plaintiffs complaints regarding fuse size implicate fundamental policy questions about how electric utilities must design, install, operate, and maintain their electric distribution systems. In response, plaintiffs asserted that (1) the Texas Estates Code gave the probate court exclusive jurisdiction to adjudicate the case, (2) the Utilities Code provisions conferring jurisdiction on the PUC did not apply because plaintiffs were not customers of the utility, and (3) the electrical operations and services at issue did not fall within the PUCs exclusive jurisdiction because it has not regulated line protection systems but rather leaves it up to utilities to comply with the industry standard of care.

The probate court denied CenterPoints plea to the jurisdiction but stayed further proceedings while CenterPoint sought mandamus relief. CenterPoint filed a petition for writ of mandamus in the court of appeals, which denied relief without a substantive opinion.

Analysis

CenterPoint asserts that the Public Utility Regulatory Act (PURA) gives the PUC exclusive jurisdiction to adjudicate the standard of care applicable to plaintiffs tort suit and whether it violated that standard. Under the Texas Constitution, district court jurisdiction “consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where [such] jurisdiction may be conferred ․ on some other court, tribunal, or administrative body.” Tex. Const. art. V, § 8. As courts of general jurisdiction, district courts are presumed to have subject-matter jurisdiction over a dispute absent a showing to the contrary. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004). The Legislature may “bestow exclusive jurisdiction on administrative bodies,” Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006), but those bodies may exercise only powers conferred in clear and express statutory language. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). They do not share the jurisdictional presumption of district courts. In re Entergy Corp., 142 S.W.3d at 322.

When the Legislature has granted an agency exclusive jurisdiction to adjudicate a disputed issue, the agency has the sole authority to make an initial determination regarding that issue, and a trial court lacks jurisdiction until a party has exhausted administrative remedies. Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018). Whether the PUC has exclusive jurisdiction over an issue is a question of statutory interpretation that we review de novo. Id. If the PUC has exclusive jurisdiction, mandamus is an appropriate remedy to correct a trial courts denial of a plea to the jurisdiction. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 624 (Tex. 2007).

I. The probate court does not have exclusive jurisdiction to adjudicate plaintiffs wrongful-death and survival claims.

We first address plaintiffs contention that because the Estates Code grants the probate court original and exclusive jurisdiction over this case, jurisdiction cannot be exercised by the PUC. Plaintiffs point out that Article V Section 8 of the Texas Constitution does not mention probate courts, which have original and exclusive jurisdiction under the Estates Code to adjudicate wrongful-death and survival actions. CenterPoint counters that the statutory probate court has concurrent—not exclusive—jurisdiction over plaintiffs case, and that probate courts—like district courts—must defer to exclusive agency jurisdiction when applicable. We agree with CenterPoint.

A statutory probate court has jurisdiction only as provided by statute. Tex. Const. art. V, § 1 (“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.”); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 723 (Tex. App.—Fort Worth 2004, no pet.) (“A statutory probate court may exercise only that jurisdiction accorded it by statute.”). Plaintiffs point to several Estates Code provisions that confer exclusive original jurisdiction on probate courts. For example, “[a]ll probate proceedings must be filed and heard in a court exercising original probate jurisdiction,” Tex. Est. Code § 32.001(a), and “[i]n a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings.” Id. § 32.005(a). Plaintiffs assert that once a statutory probate court exercises original jurisdiction over a probate proceeding, that court maintains exclusive jurisdiction over any related causes of action.

Yet the Estates Code also provides that a probate court has concurrent jurisdiction with the district court over certain enumerated claims, which include those for survival or wrongful death. Id. § 32.007 (“A statutory probate court has concurrent jurisdiction with the district court in: (1) a personal injury, survival, or wrongful death action․”). Nothing in the text of this statute indicates that the Legislature intended to place statutory probate courts in a superior jurisdictional position to district courts and prevent an administrative body from exercising its own legislatively assigned exclusive jurisdiction over matters within its purview. See Colorado County v. Staff, 510 S.W.3d 435, 444 (Tex. 2017) (explaining that our goal in construing a statute is to give effect to the Legislatures intent, which we seek in the statutory text).

Because plaintiffs brought claims for survival and wrongful death, the probate court has concurrent but not exclusive jurisdiction over their claims. See King v. Deutsche Bank Natl Tr. Co., 472 S.W.3d 848, 856 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that section 32.005 “confers on statutory probate courts exclusive jurisdiction over causes of action related to a probate proceeding unless Section 32.007 provides that the action is subject to concurrent jurisdiction in a district court”). Probate court jurisdiction over plaintiffs claims is no greater than district court jurisdiction would be. See Shores, 128 S.W.3d at 724 (“A statutory probate courts jurisdiction over actions involving trusts is concurrent with that of a district court. Thus, the district courts jurisdiction over actions involving trusts determines the extent of a statutory probate courts jurisdiction over such actions.”). We therefore conclude that the Estates Code does not prevent the PUC from exercising exclusive jurisdiction to adjudicate any issues within its purview that arise in survival and wrongful-death actions brought in probate court.

II. The PUC does not have exclusive jurisdiction to adjudicate common-law questions of reasonable care that underlie plaintiffs claims.

A. PURA defines the PUCs exclusive jurisdiction to regulate and to adjudicate.

We now turn to CenterPoints arguments that plaintiffs negligence suit raises particular issues that fall within the PUCs exclusive jurisdiction to adjudicate: specifically, the appropriate standard of care and whether CenterPoint complied with that standard. An agency has exclusive jurisdiction when statutory language “clearly expresses” that this is the Legislatures intent, or “when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Sw. Bell Tel. Co., 235 S.W.3d at 624–25). We held in Chaparral Energy that PURA includes both express exclusivity language and a pervasive scheme. Id. at 139. Yet we also recognized that “[a]ll regulatory schemes have limitations,” so we must determine whether issues underlying plaintiffs claims “fall[ ] within [the PUCs] jurisdictional scope.” Id. It is CenterPoints burden to establish that the district court has been divested of subject-matter jurisdiction with respect to those underlying issues. See In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. June 25 2021) (No. 19-0662).

In determining the PUCs jurisdictional scope, it is useful to keep some general principles of administrative law in mind. An administrative agency is “a legislative creation with only those powers expressly conferred and necessary to accomplish its duties.” Chaparral Energy, 546 S.W.3d at 138 (quoting Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 216 (Tex. 2002)). The Legislature may grant an agency power to make rules as well as power to adjudicate disputes. As the Supreme Court of the United States has explained, agencies use rules to regulate future conduct and adjudications to determine past and present rights and liabilities. Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218–19, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). In other words, “adjudication deals with what the law was; rulemaking deals with what the law will be.” Id. at 221, 109 S.Ct. 468 (Scalia, J., concurring). The governing statute may provide that an agencys jurisdiction to make rules has the same scope as its jurisdiction to adjudicate disputes, or those scopes may differ.

And an agency may be able to address certain issues only (or initially) through rulemaking while others require adjudication.

Here, PURA defines the PUCs exclusive jurisdiction to regulate utilities as well as to adjudicate disputes involving utilities. Regarding regulation, PURA “establish[es] a comprehensive and adequate regulatory system for electric utilities to assure rates, operations, and services that are just and reasonable,” Tex. Util. Code § 31.001(a), and to that end gives the PUC “exclusive original jurisdiction over the rates, operations, and services of an electric utility” in certain geographic areas and exclusive appellate jurisdiction in others. Id. § 32.001(a), (b). PURA separately defines the PUCs powers of enforcement and adjudication, authorizing it to: impose an administrative penalty for violating statutes, rules, or orders (id. § 15.023(a)); issue a cease-and-desist order to a person engaging in certain hazardous or injurious conduct (id. § 15.104); and investigate and resolve a complaint by an “affected person” alleging “an act or omission by a public utility in violation or claimed violation” of a law, order, ordinance, or rule (id. § 15.051(a)).

CenterPoint argues that plaintiffs claims turn on the allegation that CenterPoint failed to comply with PURA and the industry standards it incorporates when it selected fuses for its lines that were too large. According to CenterPoint, these allegations not only complain about CenterPoints “operations” and “services” but also implicate safety, design, and reliability—all matters that the PUC has exclusive jurisdiction to regulate. Therefore, the PUC has exclusive jurisdiction over issues regarding the standard of care applicable to fuse size and whether CenterPoint complied with that standard, and plaintiffs are required to exhaust administrative remedies.

Plaintiffs respond that the trial court properly denied CenterPoints plea to the jurisdiction because (1) under PURA, plaintiffs are not “affected persons” who may initiate complaints at the PUC, so it cannot adjudicate their claims; and (2) neither PURA nor PUC regulations address the matter of fuse size, any general PURA or industry standards that may inform CenterPoints duty are equivalent to common-law negligence standards, and the PUC does not adjudicate compliance with such standards. As in Chaparral Energy, we begin by examining PURAs express provisions regarding PUC jurisdiction and then consider the more general provisions of the regulatory scheme on which CenterPoint relies. See 546 S.W.3d at 138–39.

B. Because plaintiffs are not among those who may file a complaint in the PUC, it does not have exclusive jurisdiction to adjudicate any part of their claims.

Plaintiffs contend their claims are outside the scope of the PUCs exclusive jurisdiction because they do not qualify under PURA to file a complaint with the agency because they are not “affected persons”; thus, there are no administrative remedies for them to exhaust. CenterPoint disagrees, asserting that PURAs text and purpose confirm plaintiffs qualify as parties required to seek relief from the PUC before proceeding in court. We conclude that plaintiffs are correct because none of the issues underlying their claims complain of a statutory or regulatory violation affecting their utility service or rates.

“A state agency has exclusive jurisdiction when the Legislature has granted it the sole authority to make an initial determination in a dispute.” Id. at 138 (cleaned up). As noted above, we begin with the presumption that the trial court is authorized to resolve the parties dispute, but that presumption may be overcome by “clear and express statutory language” giving an agency exclusive jurisdiction to adjudicate the matter. Subaru of Am., 84 S.W.3d at 220. We therefore look to PURA to determine whether “the Legislature intended that the PUC determine this type of dispute.” In re Sw. Bell Tel. Co., 235 S.W.3d at 625.

In Southwestern Bell, we grounded our holding that the PUC had exclusive jurisdiction to adjudicate a customers claims against a utility regarding a surcharge in statutes empowering the PUC to adopt review procedures, resolve billing disputes, and require refunds. Id. at 625–26. Here, in contrast, no statutes give the PUC authority to adjudicate any part of the claims brought by plaintiffs.

As discussed above, PURA gives the PUC exclusive jurisdiction over “the rates, operations, and services of an electric utility.” Tex. Util. Code § 32.001(a). But as we recently explained, that provision addresses the PUCs jurisdiction to regulate these activities. In re Oncor Elec. Delivery Co., 630 S.W.3d at 43. The Legislature has also defined the PUCs authority to adjudicate disputes by describing more specifically how a plaintiffs complaint must relate to the rates, operations, or services of a utility to trigger exclusive PUC jurisdiction to resolve that complaint. Under PURA, “an affected person” may file a complaint with the PUC “setting forth an act or omission by a public utility in violation or claimed violation of a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority.” Tex. Util. Code § 15.051. PURA defines an “affected person” as:

(A) a public utility or electric cooperative affected by an action of a regulatory authority;

(B) a person whose utility service or rates are affected by a proceeding before a regulatory authority; or

(i) is a competitor of a public utility with respect to a service performed by the utility; or

(ii) wants to enter into competition with a public utility.

Id. § 11.003(1). Reading subsection (B) of the affected person definition (the only subsection potentially applicable here) together with section 15.051, the PUC has jurisdiction to adjudicate a persons complaint that a utilitys act or omission violated either a law that the PUC has jurisdiction to administer or a regulatory order, ordinance, or rule if the alleged violation affected the persons utility service or rates. See also In re Oncor Elec. Deliv. Co., 630 S.W.3d at 46 (explaining that scope of PUCs exclusive jurisdiction to regulate “the charging of rates and provision of electricity” “equally informs [its] jurisdiction to adjudicate disputes between ‘affected persons’ and utilities”); In re Tex.-N.M. Power Co., 625 S.W.3d at 45 (holding that plaintiffs complaints “are not about TNMs operations and services as a utility”); Chaparral Energy, 546 S.W.3d at 140 (concluding that customers “complaints arise from [the utilitys] alleged breach of” agreement to “provide electric service”).

CenterPoint argues that under subsection (B), plaintiffs qualify as affected persons because they are persons whose “service” is affected by a proceeding they would initiate. It points us to the statutory definition of service: “any act performed and any facilities used ․ in the performance of the utilitys duties under this title to ․ the public.” Tex. Util. Code § 11.003(19). Plaintiffs counter that they are not persons whose utility service would be affected by a PUC proceeding and their pleadings have never alleged otherwise.

In construing statutory language, “we presume the Legislature chose the statutes language with care, purposefully choosing each word, while purposefully omitting words not chosen.” In re Commitment of Bluitt, 605 S.W.3d 199, 203 (Tex. 2020). And here, the Legislature chose the language “a person whose utility service or rates are affected” to describe who may file a complaint with the PUC. Tex. Util. Code § 11.003(1)(B) (emphasis added). “Whose” is not defined in the Utilities Code, but when a term is not defined in a statute, we look to dictionary definitions for the terms common meaning. City of Fort Worth v. Rylie, 602 S.W.3d 459, 467 n.19 (Tex. 2020). The word “whose” indicates possession and is defined as “the possessive case of who.” Whose, Websters New Universal Unabridged Dictionary (1996). It is a “relative pronoun to indicate possession.” Ronald Carter et al., English Grammar Today: An A–Z of Spoken and Written Grammar (2016).

Here, neither Higgins nor plaintiffs possessed any service from CenterPoint, and therefore they were not charged any rates.

We must give effect to all words of a statute and not treat any language as surplusage. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000). Giving effect to the word “whose,” plaintiffs are not “affected persons” under section 11.003 because they are not persons whose service or rates would be affected by a proceeding.

See In re Oncor Elec. Delivery Co., 630 S.W.3d at 46 (concluding that plaintiffs suit “does not complain about [utilitys] rates or his electrical service” or “allege damages arising from the provision of his electrical service”). Our dissenting colleagues view this result of applying the statutory text as “nonsensical,” and they would ask whether the complaint involved “[a]n electric utilitys service” rather than an affected persons service. Post at 168.

But that is simply not what the statute says, and it is not our job to second-guess the wisdom of the language chosen by the Legislature.

CenterPoint asserts that any doubt about plaintiffs ability to proceed before the PUC is dispelled by the definition of “complainant” in the PUCs procedural rules. Complainant is defined as “[a] person, including commission staff or the Office of Public Utility Counsel, who files a complaint intended to initiate a proceeding with the commission regarding any act or omission by the commission or any person subject to the commissions jurisdiction.” 16 Tex. Admin. Code § 22.2(14). But those procedural rules also contain a definition of “affected person” that tracks section 11.003(1), see id. § 22.2(4), and they provide that the rules “shall not be construed so as to enlarge, diminish, modify, or otherwise alter the jurisdiction, powers, or authority of the commission.” Id. § 22.1(b)(3). Exclusive jurisdiction to adjudicate a claim brought by plaintiffs must come from the Legislature, not the PUCs own procedural rules. See Chaparral Energy, 546 S.W.3d at 138 (noting that the PUC is a legislative creation and has only the powers “expressly conferred and necessary to accomplish its duties”).

Finally, CenterPoint asserts that plaintiffs would be accommodated as affected persons, citing three PUC proceedings that it claims entertained complaints from members of the general public.

We disagree with CenterPoints characterization of these complaints. In each, the complainants owned land on which the PUC had granted utilities permission to install transmission lines. See Tex. Util. Code § 37.051 (requiring an electric utility to obtain from the PUC a certificate of convenience and necessity before extending its service). The landowners alleged that the utility companies were not complying with prior PUC orders. No one asserted that the landowners did not qualify as affected persons, and the definition of service includes “facilities used or supplied by a public utility,” which would include the equipment supplied by the utility. See id. § 11.003(10), (19).

In contrast, the PUC denied a landowners motion to intervene in a Citys application to amend a Certificate of Convenience and Necessity where the landowner did not meet the statutory definition of an “affected person” under the Water Code. Tex. Pub. Util. Commn, Order No. 6 Denying Interventions, Application of City of Kenedy to Amend Water Cert., Docket No. 48622 (Mar. 1 2019), 2019 WL 1100065. As CenterPoint notes, the PUC found that it did not have statutory authority to regulate the groundwater rights at issue, but it also denied the motion to intervene, citing the Water Codes definition of “affected person.” Id. (citing Tex. Water Code § 13.002(1)). This authority confirms that the PUC requires a party to meet the statutory requirements to be considered an affected person.

For these reasons, plaintiffs claims do not fall within the scope of PURAs express grant of exclusive jurisdiction to the PUC to adjudicate complaints. As an administrative agency, the PUC has no inherent authority and may exercise only those powers conferred upon it by the Legislature. Pub. Util. Commn v. GTE–Sw., Inc., 901 S.W.2d 401, 406–07 (Tex. 1995). By defining who may file a complaint with the PUC, the Legislature indicated its intent to authorize the PUC to adjudicate complaints filed only by those parties. PURA does not expressly grant the PUC exclusive jurisdiction to adjudicate complaints by those who—like plaintiffs—are not affected persons.

C. PURAs regulatory scheme has not displaced the common-law standards governing plaintiffs claims, and the PUC does not adjudicate compliance with those standards.

Absent an express grant of jurisdiction, “an agency may also have exclusive jurisdiction ‘when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.’ ” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Sw. Bell Tel., 235 S.W.3d at 624–25). In Southwestern Bell, for example, we held that a claim regarding a telecommunication utilitys excessive surcharges fell within the PUCs exclusive jurisdiction under PURAs pervasive regulatory scheme. 235 S.W.3d at 627. We recognized the PUCs exclusive jurisdiction over the claim because the Legislature directed it to adopt a “method for administrative review” as necessary to maintain the universal service fund as well as “rules for the administration of the universal fund.” Id. at 625 (quoting Tex. Util. Code § 56.023(a)(1), (d)). We also relied on the Legislatures authorization for the PUC to resolve disputes between a customer and a utility, Tex. Util. Code § 17.157(a), enjoin a utility from engaging in acts that violate PURA, id. § 15.021, and assess administrative penalties for PURA violations, id. § 15.023. In re Sw. Bell Tel., 235 S.W.3d at 626.

CenterPoint asserts that PURAs pervasive regulatory scheme also applies here, arguing that plaintiffs complaints about its fuse-sizing practices and the design of its electrical distribution systems concern its operations and services, which section 32.001(a) of the Utilities Code grants the PUC exclusive jurisdiction to regulate. CenterPoint also contends that plaintiffs claims raise a host of questions regarding safety, design, and reliability that fall within the PUCs exclusive regulatory jurisdiction. Plaintiffs respond that unlike in Southwestern Bell, there are no provisions in PURA or any PUC regulations issued thereunder that specifically address the issue of fuse size, and they are not alleging any acts that violate specific PURA provisions. Instead, plaintiffs argue that industry standards of reasonable care govern the issues underlying their claims, and the PUC does not adjudicate compliance with such standards.

In evaluating these arguments, we begin with a detailed examination of plaintiffs claims against CenterPoint. Those claims are rooted in common-law negligence; plaintiffs nonsuited allegations of negligence per se following a vigorous challenge by CenterPoint. Plaintiffs allege that CenterPoint has a duty to design, construct, operate, and maintain electricity distribution systems, facilities, and instrumentalities that are safe, adequate, efficient, and reasonable. This duty includes the responsibility to act and operate as a reasonably prudent electricity distribution company, comply with law and industry standards (including PURA and the National Electrical Safety Code), and use appropriate safeguards to protect those in proximity to ultrahazardous electrical currents. To comply with its duty, plaintiffs maintain that CenterPoint must design, construct, operate, and maintain its distribution system with a prudent and appropriate line protection scheme, including coordinated use of breakers and fuses to de-energize lines promptly when they experience faults.

Plaintiffs allege that CenterPoint breached this duty by failing to act as a reasonably prudent owner, operator, and handler of the power line, equipment, and electricity, and that its negligence proximately caused Higginss death. Specifically, they allege that CenterPoints line protection scheme was not properly designed or coordinated on the circuit where the incident occurred. Plaintiffs contend that had CenterPoint followed industry standards or even its own internal standards regarding the type and size of fuse that protected the electrical line, the fuse would have de-energized the electrical line before Higgins encountered it.

CenterPoint focuses on the allegation that it breached its duty of reasonable care by using an improperly sized fuse, and it cites several statutes and regulations that it says bring the discrete issue of fuse size within the scope of PURAs pervasive regulatory scheme. In particular, CenterPoint contends that fuse size is part of CenterPoints “services”—which include its “facilities used” and “act[s] performed”—as well as its “operations,” all of which the PUC has exclusive jurisdiction to regulate. Tex. Util. Code §§ 11.003(19), 32.001(a).

CenterPoint also points to statutes and regulations setting general standards that could be applied to the issue of fuse size. It cites Utilities Code section 38.001, which requires an electric utility to “furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and reasonable,” as well as the PUCs regulatory requirement that a utility “construct, install, operate, and maintain its ․ lines in accordance with” the standards of the National Electrical Safety Code. 16 Tex. Admin. Code § 25.101(d). With respect to reliability, a PUC regulation requires utilities to “make all reasonable efforts to prevent interruptions of service.” Id. § 25.52(b)(1).

We agree with CenterPoint that plaintiffs claims are about CenterPoints operations,

and that the issue of fuse size is one the PUC has exclusive jurisdiction to regulate under section 32.001. But as we explain below, the PUC has not exercised this jurisdiction: there is neither a law administered by the PUC nor a PUC order or rule that regulates fuse size prospectively, so there can be no complaint that CenterPoint violated any such standards in selecting the fuses at issue. See Tex. Util. Code § 15.051(a). Setting standards for fuse selection retrospectively to resolve this dispute is not regulation, and adjudicating violations of laws that the PUC does not administer is also not regulation. See Bowen, 488 U.S. at 218–19, 109 S.Ct. 468; In re Oncor Elec. Delivery Co., 630 S.W.3d at 47 (explaining that PUCs jurisdiction is “limit[ed] ․ to adjudications that implicate regulatory matters”).

We conclude that the PUC is not empowered to resolve issues relating to fuse size here because (1) none of the statutes or PUC regulations cited by CenterPoint displace the common-law standard of care with respect to fuse size, and (2) whether that standard has been met in individual cases is not a “question[ ] of rules and regulations squarely within the PUCs purview.” Chaparral Energy, 546 S.W.3d at 145. In short, PURAs pervasive regulatory scheme does not give the PUC exclusive jurisdiction because the parties dispute does not involve a PUC regulatory action. In re Oncor Elec. Delivery Co., 630 S.W.3d at 43 (concluding common-law claim did not involve “a regulatory action within the [PUCs] auspices”).

Duties imposed by government regulation may in some cases supplant common-law duties as the standard for tort liability. See W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 36 (5th ed. 1984). But “[w]e have consistently declined to construe statutes to deprive citizens of common-law rights unless the Legislature clearly expressed that intent.” Cash Am. Intl, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (applying this rule to reject exclusive agency jurisdiction); see also Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex. 2015). And it is for a court—not the PUC—to decide whether the common law or statutes and regulatory actions provide the duty by which an electric utilitys tort liability must be judged.

As CenterPoint correctly argued in resisting plaintiffs claim of negligence per se in the trial court, PURA and PUC regulations do not clearly displace its common-law duty to operate as a reasonably prudent electricity distribution company. The statutes and regulations say nothing about fuse size; they require only that utilities act safely and reasonably.

Statutes and regulations generally requiring a party to act safely or reasonably do not substitute a legislatively imposed standard of conduct for the reasonable-person standard of common-law negligence. E.g., Entex, a Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 8–9 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (concluding statute requiring gas utility to furnish facilities that are “safe, adequate, efficient, and reasonable” did not impose different duty); Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 271 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding that common-law negligence standard is read into statute imposing duty to act “safely”).

CenterPoints own evidence in the trial court confirms that industry practice—not a regulatory scheme—informs its duty with respect to fuse size. CenterPoints expert testified in an affidavit that the National Electrical Safety Code “does not specify how utilities should design or operate their distribution system protection schemes,” nor does it “direct an electric utility how to select or size fuses ․ to protect the electrical distribution system.” Rather, CenterPoint “has the right to determine its own system protection philosophy and how it selects its system protection devices.” The expert also testified that “[w]hen and where to use fuses for laterals is up to the individual designer and there are no hard and fast rules,” and that the “design, application and operation of CenterPoints distribution line protection system complied with accepted good practice within the industry.”

In sum, as CenterPoint put the matter in its motion for summary judgment, “the PURA provisions do not set out with sufficient clarity the ‘standard of conduct’ to which CenterPoint Energy would be held.” Statutes and regulations that are consistent with common-law standards do not indicate that the Legislature intended to grant an administrative agency the exclusive means to remedy issues within their scope.

The PUC also lacks exclusive jurisdiction to determine whether CenterPoint complied with the common-law standard of care in this case. By its own acknowledgment, the PUC lacks “the authority to make common-law determinations” or “adjudicate contract claims and torts,” and instead “makes regulatory determinations regarding whether a utility violated PURA, Commission rules, and tariffs.” Tex. Pub. Util. Commn, Order at 2, Complaint of Giovanni Homes Corp. Against Oncor Elec. Delivery Co., Docket No. 45854 (July 18 2019), 2019 WL 3642716; see In re Oncor Elec. Delivery Co., 630 S.W.3d at 50. As the PUC sees the matter, its regulatory determinations “might inform a court on aspects of claims within the courts jurisdiction.” Tex. Pub. Util. Commn, Order at 2, Complaint of Giovanni Homes, Docket No. 45854. But “[t]he Legislature has not conferred on the Commission any general authority to preside over tort actions.” Tex. Pub. Util. Commn, Preliminary Order at 5, Complaint of Sloss Against AEP Tex. Inc., Docket No. 50284 (Apr. 17 2020), 2020 WL 1973315. In fact, “[t]he Commission has repeatedly stated that it does not have statutory authority to generally adjudicate contract claims and torts or award damages.” Tex. Pub. Util. Commn, Amended Preliminary Order at 12, Complaint of Vinson Against Oncor Elec. Delivery Co., Docket No. 40953 (May 21, 2013). Thus, the PUC found that a question regarding CenterPoints negligence in another case was outside the scope of the proceeding because “[t]he Commission does not have jurisdiction to adjudicate private tort ․ disputes.” Tex. Pub. Util. Commn, Preliminary Order at 3, Complaint of Freedom Grp. LLC Against CenterPoint Energy Hous. Elec., LLC, Docket No. 33052 (Dec. 15 2006), 2006 WL 3716004.

We agree with the PUC. Nothing in PURA gives the PUC “jurisdiction to administer” the common law. Tex. Util. Code § 16.051(a). In addition, as we explained in Chaparral Energy, the Texas Constitution protects the right to have a jury resolve fact questions in actions analogous to those tried by jury in 1876. 546 S.W.3d at 144 (citing Tex. Const. art. I, § 15 & art. V, § 10). Courts are not free to outsource to the PUC the authority to adjudicate common-law questions and factual disputes properly decided by judges and juries. See In re Oncor Elec. Delivery Co., 630 S.W.3d at 58.

Finally, CenterPoint argues that plaintiffs claims implicate a standard of care set out in its tariff with the PUC. PURA requires that all utilities file a tariff with the PUC setting out the terms and conditions under which it provides electric utility service. Tex. Util. Code § 32.101 (providing for the filing of a tariff that contains each rule “that relates to or affects” “a rate of a utility” or “a utility service, product, or commodity furnished by the electric utility”). One of the required provisions in a pro-forma tariff is that each utility will “construct, own, operate, and maintain its Delivery System in accordance with Good Utility Practice.” 16 Tex. Admin. Code § 25.214 (pro-forma tariff section 3.2).

CenterPoint asserts that the standards in the tariff generally inform its duties. We agree. See First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 492 (Tex. App.—Dallas 2001, no pet.) (“Texas courts examine the language of the tariff to determine if a duty exists.”). But there are no requirements in CenterPoints tariff that would apply to the issue of fuse size other than a general standard of care, which does not supplant the common-law standard as we have explained. We see no indication that the Legislature intended the PUC to resolve issues based on a tariff where no tariff provisions alter the applicable legal standards. Cf. Chaparral Energy, 546 S.W.3d at 142 (holding that the PUC had exclusive jurisdiction over a breach-of-contract case that could not “be resolved without considering and construing [the utilitys] PUC-approved tariff”). In addition, any “defense that [a] tariff might limit [a utilitys] liability does not create [PUC] jurisdiction.” In re Oncor Elec. Delivery Co., 630 S.W.3d at 52. We therefore hold that PURAs comprehensive regulatory scheme does not deprive the trial court of jurisdiction to adjudicate any issues raised by plaintiffs suit.

Conclusion

For these reasons, neither PURAs express provisions nor the nature of its regulatory scheme demonstrates that the Legislature intended the PUC to have exclusive jurisdiction over any issues underlying this common-law negligence dispute. The trial court did not abuse its discretion by denying CenterPoints plea to the jurisdiction, and we deny CenterPoints petition for writ of mandamus.

Having authored the Courts unanimous opinion a few terms ago in Oncor Electric Delivery Co. v. Chaparral Energy, LLC,

and having joined the Chief Justices dissenting opinion last week in In re Oncor Electric Delivery Co.,

I would grant mandamus relief in this case, holding that the Public Utility Regulatory Act gives the Public Utility Commission exclusive jurisdiction to resolve the issues underlying the plaintiffs claims. But the Courts majority in Oncor held that the Act grants the Commission exclusive jurisdiction only over “customer-utility disputes regarding Commission-regulated activity,” specifically claims that “complain[ ] about the utilitys rates or its provision of electrical service.”

Although I disagreed with that decision, it now constitutes the Courts binding precedent. And although Im concerned that the ambiguity of the Courts new limitations will produce greater confusion and generate further litigation over the extent of the Commissions jurisdiction, I do agree that this case—in which the plaintiffs were not the utilitys customers and do not complain about the utilitys failure to provide electrical service—does not fit within those limits. In short, I agree that the plaintiffs here are not the “kind of ‘affected person’ who may bring a claim to the Commission” and have not brought “the kind of claim that the Commission can adjudicate,” at least under the Courts reasoning in Oncor.

I therefore respectfully concur in the Courts disposition, without joining its opinion.

In this wrongful-death and survival action, Plaintiffs allege that their decedent,

while rendering aid following a motor vehicle accident, fell onto an electric power line that had been knocked to the ground in the accident and was electrocuted because the operator, CenterPoint Energy Houston Electric, used a wrong-sized fuse in constructing the line. The Public Utility Regulatory Act (PURA) gives the Public Utility Commission (PUC) “exclusive original jurisdiction over the rates, operations, and services of an electric utility”.

The plurality “agree[s] with CenterPoint that plaintiffs claims are about CenterPoints operations, and that the issue of fuse size is one the PUC has exclusive jurisdiction to regulate”.

Recently, in Oncor Electric Delivery Co. v. Chaparral Energy LLC, the Court reaffirmed its long-standing rule that a plaintiff suing on a claim involving issues within an agencys exclusive jurisdiction—such as a utilitys standard of care in particular circumstances—must first exhaust his administrative remedies by applying to the agency to use “its unique expertise to resolve [those] issues”.

Based on the agencys decision, the plaintiff can then proceed “to establish its claim and obtain relief in the courts.”

The plurality refuses to apply that rule in this case. It offers two explanations. One is that Plaintiffs are not, as a matter of happenstance, CenterPoint customers. The plurality reads PURA to impose this nonsensical limit on the PUCs exclusive original jurisdiction by focusing on one word, “whose”, notwithstanding other passages and reasons to the contrary. PURA was “enacted to protect the public interest inherent in the rates and services of electric utilities”,

not just customers interests. The pluralitys other explanation for not requiring Plaintiffs to apply to the PUC to determine the standard to which CenterPoint is to be held in selecting fuses is that the PUC has not yet ruled on the issue with sufficient clarity. Of course, if the PUC had already ruled, there would be no reason to require Plaintiffs to ask again; the trial court could simply enforce the PUCs decision. It is precisely because the issue is within the PUCs exclusive original jurisdiction and the PUC has not decided it that the PUC must have the opportunity to do so. In the end, the plurality would judicially amend PURA to give the PUC semi-exclusive original jurisdiction over the rates, operations, and services of an electric utility affecting its customers and on matters already decided. Otherwise, electric utilities rates, operations, and services are for judges and juries to decide.

The Legislature intended PURA to “protect the public interest” by establishing a “comprehensive” regulatory system

covering “all or virtually all pertinent considerations involving electric utilities operating in Texas.”

The pluralitys decision in this case would carve significant exceptions out of the statutory system, just as the Courts decision last week in In re Oncor Electric Delivery Co.

did. We recognized many years ago that “jury awards can have an effect akin to regulation.”

We cited the U.S. Supreme Courts acknowledgment that “regulation can be as effectively exerted through an award of damages as through some form of preventive relief”, such as direct, administrative regulation.

“The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy.”

The decisions in this case and in Oncor make the PUCs jurisdiction over electric utilities rates, operations, and services joint with courts, not exclusive.

I respectfully dissent.

Under the rule in Chaparral Energy, Plaintiffs must complain to the PUC that CenterPoint violated applicable standards in determining fuse sizes for power lines before they can proceed with their lawsuit. PURA allows such a complaint to be made by an “affected person”,

defined to include “a person whose utility service or rates are affected by a proceeding before [the PUC]”.

In the pluralitys view, “whose” means that an affected person must possess the service and rates at issue in a proceeding.

Plaintiffs are not CenterPoint ratepayers. Therefore, the plurality reasons, their service and rates would not be at issue in a proceeding to determine the standard for selecting fuse sizes applicable to CenterPoint; they are not affected persons; and they could not initiate a complaint proceeding against CenterPoint before the PUC.

The plurality focuses on the wrong word. Under PURA,

“[s]ervice” has its broadest and most inclusive meaning. The term includes any act performed, anything supplied, and any facilities used or supplied by a public utility in the performance of the utilitys duties under this title to its patrons, employees, other public utilities, an electric cooperative, and the public.16

An electric utilitys service thus involves duties not only to its patrons but also to the public. And PURA was “enacted to protect the public interest inherent” in electric utilities services.

Safe operations are a service an electric utility provides both to its customers and to the general public. The plurality would hold that a utilitys customers can complain that its services are hazardous but noncustomers—who are just as much at risk—cannot. That reading ignores the text and reaches a nonsensical interpretation of the “affected person” definition and of PURA as a whole.

The PUCs procedural rules likewise confirm that “affected persons” are not limited to a utilitys customers. The rules define “complainant” as “[a] person, including commission staff or the Office of Public Utility Counsel, who files a complaint intended to initiate a proceeding with the commission regarding any act or omission by ․ any person subject to the commissions jurisdiction.”

The provision is not an improper enlargement of the statutory text, as the plurality thinks,

but rather confirmation of a correct reading of the statute.

The plurality notes that the PUC has entertained complaints from noncustomers. In three proceedings, landowners complained that electric utilities transmission lines did not comply with PUC orders.

The plurality observes that no one in the proceedings argued that the complainants were not affected persons, but that status is necessary to invoke the PUCs jurisdiction, and the PUC should have raised the issue itself if it thought there was a problem.

Oddly, the plurality seems to argue that the landowners were affected persons not because their own electric service was affected but because utility equipment was on their land, and PURAs definition of “service” includes “facilities used or supplied by a public utility”.

That is a correct interpretation of “affected person”, as demonstrated above, but it is inconsistent with the pluralitys limitation of affected persons to ratepayers. The service that the landowners possessed from the utility was the transmission of electricity to others, and they were entitled to complain that it was not in compliance with PUC orders. But the landowners certainly did not possess that service in the same manner that the plurality maintains Plaintiffs must possess a service in order to qualify as “affected persons”. The landowners cannot be affected persons if Plaintiffs are not.

The plurality adds two words to PURAs grant to the PUC of “exclusive original jurisdiction over the rates, operations, and services of an electric utility”: affecting customers. The text does not hint that the PUC can hear complaints about utilities only from utility customers. The omission of an express limitation so significant, so contrary to PURAs concern for public interests, and so lacking in any conceivable rationale cannot have been mere legislative oversight. The pluralitys refusal to follow Chaparral Energy here, along with the Courts refusal to do so in Oncor, is a small matter compared to the limitation the plurality would impose on PURAs entire regulatory scheme in so doing.

In Chaparral Energy, the Court held that a plaintiff suing its electric utility for breach of contract by unreasonably delaying the extension of service to two wells was first required to apply to the PUC to determine the utilitys obligations under its tariff before it could proceed to litigate its claim for damages in court.

The plurality breaks from this precedent. And as with the Courts opinion in Oncor, the plurality uses strawmen to justify its actions. “The Legislature has not conferred on the [PUC] any general authority to preside over tort actions”, the plurality pronounces, quoting the PUC.

Thats absolutely true—but also undisputed and immaterial. “In fact,” the plurality continues, “[t]he Commission has repeatedly stated that it does not have statutory authority to generally adjudicate contract claims and torts or award damages.”

Thats equally true, undisputed, and immaterial. “Nothing in PURA gives the PUC ‘jurisdiction to administer’ the common law.”

Agreed, and beside the point. The plurality fails to mention that the State as amicus curiae, represented by the Solicitor General, whose views the Court called for, argues forcefully that while the PUC cannot finally adjudicate Plaintiffs damages claims, it must be given the opportunity to decide threshold issues within its exclusive original jurisdiction. That includes deciding CenterPoints legal obligations to Plaintiffs, as the Court held in Chaparral Energy.

Chaparral asserted its common-law right to recover damages for breach of contract, just as Plaintiffs here assert their common-law right to recover damages for negligence. Chaparral Energy applied the Courts long-standing rule that because the PUC has no jurisdiction to adjudicate common-law claims or award damages but has exclusive jurisdiction to resolve predicate issues underlying those claims, the PUC and the court must each exercise its own jurisdiction in a combined, two-step process: first the PUC, then the court. The issue in Chaparral Energy, Oncor, and the present case is the same: Must issues over which the PUC has exclusive original jurisdiction be resolved by the PUC before the lawsuit can be prosecuted to a conclusion in court?

The Court answered no in Oncor. The plurality answers likewise in the present case, but for different reasons. In Oncor, the plaintiff claimed that “Oncor was negligent in the placement of and/or continuing the placement of the service line that ran across [his] property, through trees, to the neighbor” and “should have moved [it] when asked”.

The Court held that this claim has nothing to do with “the adequate and efficient provision of electrical services.”

In the present case, Plaintiffs claim “that CenterPoints line protection scheme was not prudently designed, and that CenterPoint chose and installed an inappropriately sized fuse.”

The plurality now declares that Plaintiffs claims “are about CenterPoints operations, and that the issue of fuse size is one the PUC has exclusive jurisdiction to regulate”.

So, the placement of power lines is not about a utilitys operations and services, but the design of power lines is. The two cases companionship seems somewhat strained.

Even though Plaintiffs claims involve CenterPoint operations over which the PUC has exclusive original jurisdiction, the plurality concludes that Plaintiffs are not required to present their complaints first to the PUC because PURA does not “set out with sufficient clarity the ‘standard of conduct’ to which CenterPoint Energy would be held”

and because the PUC has not yet decided the issue.

But that is the very reason Plaintiffs must first go to the PUC. If PURA or a PUC regulation provided a standard for fuse size applicable in the situation, the trial court could simply apply it as the court would any statutory or regulatory requirement. The reason for the PUCs exclusive original jurisdiction over electric utility rates, operations, and services is to ensure that issues relating to those matters are resolved consistently within PURAs “pervasive regulatory scheme”.

The plurality would amend PURA to give the PUC “exclusive original jurisdiction over the rates, operations, and services of an electric utility on matters already decided”. It may be that the standard for selecting fuses for power lines is no different from the common laws ordinary-care standard, or it may be that the standard should be higher or lower because of the role of fuses in providing electric service, but PURA squarely gives the PUC the exclusive original jurisdiction to resolve the issue.

The plurality states that the common-law standard of care applies to CenterPoint here as it “correctly argued” in the trial court.

CenterPoints argument, the plurality explains, was made “in resisting plaintiffs claim of negligence per se”.

It was only in that context that CenterPoint argued “PURA and PUC regulations do not clearly displace its common-law duty to operate as a reasonably prudent electricity distribution company.”

But a statute may regulate conduct without meeting the strict requirements for negligence per se.

CenterPoint did not concede in the trial court the position it advocates here. Even if it did, the extent of the PUCs exclusive original jurisdiction affects the trial courts jurisdiction and is therefore not something parties can concede.

Plaintiffs, on the other hand, specifically pleaded in the trial court that CenterPoint has the duties prescribed by “laws and standards found in Texas Utilities Code § 38.001”.

That provision states in full: “An electric utility and an electric cooperative shall furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and reasonable.”

This language clearly covers CenterPoints use of fuses generally. How it applies specifically is plainly within the exclusive original jurisdiction that PURA gives the PUC.

Chaparral Energy addressed the same situation. Chaparral and Oncors contract did not specify when Oncor was to complete the extension of electric service to Chaparrals wells. The common law would imply a requirement that Oncor complete its work within a reasonable time.

In that case, as in this one, nothing in PURA or the PUCs regulations prescribed a standard of timely performance in the circumstances presented. But the Court held that the PUC must first have the opportunity to decide whether the common-law standard or some other should apply to Chaparrals claim.

The parties in Chaparral Energy did not dispute that “Chaparrals breach-of-contract claim [could not] be resolved without considering and construing Oncors PUC-approved tariff.”

The Court cited tariff language:

• requir[ing] Oncor to “use reasonable diligence to comply with the operational and transactional requirements and timelines for provision of Delivery Service”;

• requir[ing] the parties to “cooperate in good faith to fulfill all duties, obligations, and rights set forth in [the tariff]”;

• provid[ing] that Oncor “will not be liable for any damages ․ occasioned by fluctuations or interruptions” in the delivery of electricity;

• provid[ing] that, unless “mutually agreed to by [Oncor] and [its] Retail Customer,” Oncor must provide an “entity requesting Construction Service an estimated completion date and an estimated cost for all charges to be assessed” within “ten Business Days of [Oncors] receipt of a detailed request” for such information;

• describ[ing] the form of the easement Oncor is entitled to receive for the facilities it constructs; and

• stat[ing] that the tariffs provisions “shall” govern all requests for construction services.43

Oncor relied on “these types of tariff provisions”, the Court concluded, while “Chaparral reli[ed] on others”.

Determining how they applied to Chaparrals claim was for the PUC.

CenterPoint argues that Plaintiffs claims implicate a pro forma provision in its tariff requiring it to “construct, own, operate, and maintain its Delivery System in accordance with Good Utility Practice” as defined by the PUC.

The plurality states that “there are no requirements in CenterPoints tariff that would apply to the issue of fuse size other than a general standard of care, which does not supplant the common-law standard as we have explained.”

But the tariff provision CenterPoint cites is no more general that the provisions on which Oncor relied in Chaparral Energy. The Court held there that what specific standard they prescribed for Oncors performance of its contract was a matter for the PUC to decide in its exclusive original jurisdiction.

In this case, the plurality reaches the opposite conclusion in circumstances not materially different.

Chaparral Energy should control the result in this case.

III

PURA creates a “comprehensive”

and “pervasive”

regulatory scheme. The Court has long recognized that “jury awards can have an effect akin to regulation.”

Whatever the ultimate outcome in this case, electric utilities throughout the state will have to decide whether and how to adjust the design of power lines. “Conflicting jury verdicts and rulings by different courts in regard to same or similar situations and fact patterns could result in disparate treatment” of electric utilities and plaintiffs alike.

By deferring to the PUC to determine—within its exclusive original jurisdiction over rates, operations, and services—the standards governing a utilitys legal obligations for a common-law claim, as the Court did in Chaparral Energy, judicial regulation and the resulting lack of uniformity in the regulatory system is minimized while claimants rights to redress are fully protected. The pluralitys refusal to follow Chaparral Energy here, along with the Courts refusal to do so in Oncor, are a significant departure from PURA.

The pluralitys decision in this case is broader that in Oncor. The plurality would hold that a plaintiff in a tort case need not apply to the PUC to decide an issue in a case involving an electric utilitys rates, operations, and services if (1) the PUC has not already decided the issue or (2) the PUC has already decided the issue. In other words, the Chaparral Energy procedure never applies. Further, by concluding that an “affected person” entitled to complain to the PUC about a utilitys operations must be a ratepayer, the plurality would preclude complaints by the general public. This limitation would greatly impact the PUCs regulatory authority.

* * * * *

I respectfully dissent.

FOOTNOTES

. See also In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 56 (Tex. June 25, 2021) (No. 19-0662); In re Tex.-N.M. Power Co., 625 S.W.3d 42, 45 (Tex. 2021).

. The individual plaintiffs are Karen Y. Higgins, Megan Higgins, Tommy Higgins, and Maxwell Higgins.

. Plaintiffs also asserted a claim for negligence per se but later nonsuited that claim.

. As explained below, the trial court here was a probate court, but it had exclusive original jurisdiction over this case by statute. Thus, the trial court was the appropriate authority to decide the plea to the jurisdiction CenterPoint filed, just as the trial court decided a plea to the jurisdiction in In re Oncor Electric Delivery Co., 625 S.W.3d at 45, and a motion to dismiss for want of subject-matter jurisdiction in In re Texas-New Mexico Power Co., 625 S.W.3d at 45. No provision in PURA, or any other law, empowers the PUC to decide the threshold question whether the presumption of trial court jurisdiction has been overcome.

. Plaintiffs cite multiple cases in support of this assertion, but none of these cases involved a cause of action enumerated in Probate Code section 32.007.

. For example, although the federal Equal Employment Opportunity Commission (EEOC) has jurisdiction to issue procedural regulations to carry out Title VIIs anti-discrimination provisions, it cannot adjudicate claims based on those provisions. Compare Edelman v. Lynchburg Coll., 535 U.S. 106, 109, 122 S.Ct. 1145, 152 L.Ed.2d 188 (2002) (upholding EEOC regulation permitting person who timely files charge of discrimination to verify that charge thereafter), with Fort Bend County v. Davis, ––– U.S. ––––, 139 S. Ct. 1843, 1846–47, 204 L.Ed.2d 116 (2019) (noting that the EEOC cannot adjudicate claims). In this way, the EEOC differs from agencies like the National Labor Relations Board (NLRB), which can both make rules and adjudicate claims. See 29 U.S.C. §§ 156, 160.

. Compare N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 291–95, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974) (holding NLRB had discretion to choose between rulemaking and adjudication to determine whether certain employees were managerial but recognizing that reliance on adjudication could be an abuse of discretion in other situations), with F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 254, 132 S.Ct. 2307, 183 L.Ed.2d 234 (2012) (holding Federal Communications Commission violated television stations right to due process by retroactively applying new definition of obscenity announced through adjudication).

. The parties disagree at length about whether the PUCs administrative complaint procedures are available to non-customers. Under section 17.157 of the Utilities Code, the PUC may resolve disputes between a “retail customer” and a utility, but neither party argues that section is applicable here. Aside from that section, the Legislature chose to define who may bring a complaint in the PUC as an “affected person,” and we presume the Legislature chose this language with purpose. See In re Commitment of Bluitt, 605 S.W.3d at 203. We need only interpret the applicable statutory language and determine whether plaintiffs qualify as affected persons. Thus, contrary to the dissents suggestion, we do not hold that affected persons are limited to a utilitys customers.

. In contrast, the claim in Chaparral Energy arose from an existing agreement regarding electric service that was expressly governed by PURA. See 546 S.W.3d at 140. Thus, the claimant was an affected person under section 11.003(1) who could file a complaint with the PUC.

. We also note that the dissents proposed expansion of part (B) of the “affected person” definition to include an electric utilitys service would render other parts of the definition surplusage. Specifically, part (A) of the definition already includes “a public utility ․ affected by an action of a regulatory authority.” Tex. Util. Code § 11.003(1)(A). CenterPoint does not contend that the issues it asks the PUC to decide here are regulatory actions affecting it, and we decline to rewrite part (A) to eliminate that requirement.

. Recognizing the inability of the PUCs procedural rules to alter the statutory definition of “affected person” does not prevent PUC staff and the Office of Public Utility Counsel (OPUC) from initiating or intervening in a proceeding against a utility. The Utilities Code separately spells out the authority of PUC staff and OPUC. See, e.g., Tex. Util. Code §§ 13.003, 15.023, 15.104; see also note 15, infra.

. See Complaint of Dan Agan against Entergy Tex., Inc., Tex. Pub. Util. Commn Docket No. 46407; Complaint of Johnny H. against Oncor Elec. Delivery Co., Tex. Pub. Util. Commn Docket No. 40953; Complaint of Cecil R. Atkission against Lower Colo. River Auth. Transmission Servs. Corp., Tex. Pub. Util. Commn Docket No. 39516.

. As explained in Part II.B. above, however, plaintiffs claims are not about services CenterPoint rendered to them. Thus, PURA does not expressly grant the PUC exclusive jurisdiction to adjudicate those claims.

. Similarly, we agree with our dissenting colleagues that the PUC has exclusive original jurisdiction to regulate what the standard for selecting fuses “should be.” Post at 171. If the PUC does not like the common-law standard or is concerned that it will result in disparate treatment of utilities in similar situations that is not remediable through the appellate process, the PUC may adopt a different standard prospectively by regulation as necessary to assure adequate and efficient service. But the dissent does not acknowledge the distinction between regulation and adjudication, nor does it identify a source authorizing the PUC to adopt a new fuse standard retrospectively through adjudication or to determine whether CenterPoint complied with such a standard before it existed.

. In contrast, the PUC has specifically regulated other interrupting devices. See Tex. Pub. Util. Commn, Order at 10, Application of Magic Valley Elec. Coop., Docket No. 1465 (June 1 1998), 1998 WL 35860710 (determining that “good utility practice calls for [particular] breaker relay settings”).

. Of course, the PUC may exercise its supervisory power over CenterPoints business by mounting its own inquiry into whether CenterPoints fuse sizing is safe, reasonable, and compliant with national standards. See, e.g., Tex. Util. Code §§ 14.001, 14.051, 38.001; 16 Tex. Admin. Code § 25.101(d). But PURA does not give the PUC exclusive jurisdiction to resolve disputes between a utility and a third party that are governed by the common law.

. Federal courts reach the same result under the so-called public rights doctrine. They recognize that although some issues can be determined by the executive and legislative branches, others are “inherently judicial.” N. Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 68, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) (plurality opinion of Brennan, J.). Public rights include matters that arise between the government and others in connection with the performance of the constitutional functions of the executive or legislative departments and can be adjudicated within those departments. Oil States Energy Servs., LLC v. Greenes Energy Grp., LLC, ––– U.S. ––––, 138 S. Ct. 1365, 1373, 200 L.Ed.2d 671 (2018). On the other hand, a private right—such as the right to recover damages for a breach-of-contract claim—cannot be wrested away from the judicial power of Article III courts. N. Pipeline, 458 U.S. at 86–87, 102 S.Ct. 2858.

. The dissent misreads our opinion to say that the PUC has exclusive jurisdiction to adjudicate only matters that it has already decided, so there will never be anything for the PUC to adjudicate. Post at 170. Instead, we hold simply that the PUC does not have exclusive jurisdiction to adjudicate what the standard of care is or whether a utility complied with that standard when no statute or PUC regulation displaces the common law on those matters. If the PUC had issued regulations setting its own fuse standards, there could still be disputes regarding what the standards required on particular facts or whether a utility complied with those requirements. We need not decide today the extent to which an affected person could be compelled to have the PUC adjudicate such disputed issues because there are no existing applicable fuse regulations and plaintiffs are not affected persons.

. 546 S.W.3d 133, 141 (Tex. 2018) (“In light of section 32.001(a)s express language and the comprehensive regulatory scheme PURA creates, we conclude that PURA grants the PUC exclusive jurisdiction over all matters involving an electric utilitys rates, operations, and services.” (emphasis added)).

. 630 S.W.3d 40, 58 (Tex. June 25, 2021) (No. 19-0662) (Hecht, C.J., dissenting) (“[T]he Legislature has chosen to ensure comprehensive regulation of electric utilities for the public good by giving the PUC jurisdiction to decide their legal duties related to operations and services to the exclusion of judges and juries.”).

. Id. at 52.

. Id. at 56.

. Plaintiffs are the decedent Glenn Wood Higgins surviving spouse and estate administrator, Karen Yvette Higgins; his son, Maxwell Seth Higgins; his daughter, Megan Michelle Higgins; and his father, Tommy Higgins. See Tex. Civ. Prac. & Rem. Code §§ 71.004(a), 71.021(a).

. Tex. Util. Code § 32.001(a). PURA does not allow the PUC to regulate municipally owned or regulated utilities. Id. § 32.002.

. Ante at 162 (footnote omitted).

. 546 S.W.3d 133, 142 (Tex. 2018) (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 222, 224 (Tex. 2002)).

. Id.

. Tex. Util. Code § 31.001(a) (emphasis added); In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004).

. Tex. Util. Code § 31.001(a).

. Entergy, 142 S.W.3d at 323.

. 630 S.W.3d 40 (Tex. June 25, 2021) (No. 19-0662).

. Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 249 (Tex. 1994) (citation omitted).

. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

. Id.

. See Tex. Util. Code § 15.051(a) (“An affected person may complain to the regulatory authority in writing setting forth an act or omission by a public utility in violation or claimed violation of a law that the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the regulatory authority.”).

. Id. § 11.003(1)(B). The definition also includes public utilities and electric cooperatives as well as existing and prospective competitors:“Affected person” means:(A) a public utility or electric cooperative affected by an action of a regulatory authority;(B) a person whose utility service or rates are affected by a proceeding before a regulatory authority;or(C) a person who:(i) is a competitor of a public utility with respect to a service performed by the utility; or(ii) wants to enter into competition with a public utility.Id. § 11.003(1).

. Ante at 158–59.

. Tex. Util. Code § 11.003(19) (emphasis added).

. Id. § 31.001(a) (emphasis added); In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004); see also Tex. Util. Code § 14.001 (“The commission has the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by this title that is necessary and convenient to the exercise of that power and jurisdiction.”); id. § 15.023(c)(1)(B) (authorizing the PUC to impose administrative penalties based in part on a “hazard or potential hazard created to the health, safety, or economic welfare of the public”); id. § 15.104(a)(2)(c) (granting the PUC authority to issue cease and desist orders to utilities whose conduct “creates an immediate danger to the public safety”).

. 16 Tex. Admin. Code § 22.2(14).

. Ante at 160 (“Exclusive jurisdiction to adjudicate a claim brought by plaintiffs must come from the Legislature, not the PUCs own procedural rules.”).

. See Tex. Pub. Util. Commn, Complaint of Dan Agan against Entergy Tex., Inc., Preliminary Order at 1, Docket No. 46407, 2016 WL 7187571 (Dec. 1 2016); Tex. Pub. Util. Commn, Complaint of Johnny H. and Eloise Vinson against Oncor Elec. Delivery Co., Supplemental Briefing Order at 1, Docket No. 40953, 2013 WL 1736720 (Apr. 12 2013); Tex. Pub. Util. Commn, Complaint of Cecil R. Atkission and City of Kerrville against Lower Colo. River Auth. Transmission Servs. Corp., Joint Amended Complaint at 1–2, Docket No. 39516, 2011 WL 2662858 (June 30 2011).

. Ante at 159–60 (quoting Tex. Util. Code § 11.003(19)).

. 546 S.W.3d 133, 142 (Tex. 2018).

. Ante at 164 (quoting Tex. Pub. Util. Commn, Complaint of Jaime Leonardo Sloss against AEP Tex. Inc., Preliminary Order at 5, Docket No. 50284, 2020 WL 1973315 (Apr. 17 2020)).

. Ante at 164 (quoting Tex. Pub. Util. Commn, Complaint of Johnny H. and Eloise Vinson against Oncor Delivery Co., Amended Preliminary Order at 12, Docket No. 40953 (May 21, 2013)).

. Ante at 164 (quoting Tex. Util. Code § 16.051(a)).

. Brief of the State of Texas as Amicus Curiae 13–14.

. Plaintiffs Second Amended Petition 12, In re Oncor Elec. Delivery Co., 630 S.W.3d at 58 (Tex. June 25 2021)) (mandamus record).

. Oncor, 630 S.W.3d at 52.

. Ante at 153–54.

. Ante at 162 (footnote omitted).

. Ante at 163–64.

. Ante at 162 (“[T]here is neither a law administered by the PUC nor a PUC order or rule that regulates fuse size prospectively, so there can be no complaint that CenterPoint violated any such standards in selecting the fuses at issue.”).

. In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004) (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 223 (Tex. 2002)).

. Ante at 163.

. Our decision in Perry v. S.N. lays out the multi-factor test for determining whether a statutory violation is negligence per se. 973 S.W.2d 301, 309 (Tex. 1998). Those factors include:(1) whether the statute is the sole source of any tort duty from the defendant to the plaintiff or merely supplies a standard of conduct for an existing common law duty; (2) whether the statute puts the public on notice by clearly defining the required conduct; (3) whether the statute would impose liability without fault; (4) whether negligence per se would result in ruinous damages disproportionate to the seriousness of the statutory violation, particularly if the liability would fall on a broad and wide range of collateral wrongdoers; and (5) whether the plaintiffs injury is a direct or indirect result of the violation of the statute.Id.

. See, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012) (“Subject matter jurisdiction cannot be waived or conferred by agreement, can be raised at any time, and must be considered by a court sua sponte.”). In Chaparral Energy, Oncor first asserted on appeal that the PUCs exclusive original jurisdiction deprived the trial court of subject matter jurisdiction. 546 S.W.3d 133, 137 (Tex. 2018).

. Plaintiffs Fourth Amended Original Petition 6.

. Tex. Util. Code § 38.001.

. See Hall v. Hall, 158 Tex. 95, 308 S.W.2d 12, 16 (1957) (“When the parties omit an express stipulation as to time, it is in accord with human experience and accepted standards of law for us to assume that they meant whatever term of days or years might be reasonable in the light of the circumstances before them at the date of the contract.”).

. Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 142 (Tex. 2018).

. Id.

. 16 Tex. Admin. Code § 25.214(d) (pro-forma tariff section 3.2).

. Ante at 165.

. Chaparral Energy, 546 S.W.3d at 143.

. Tex. Util. Code § 31.001(a).

. In re Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004) (citing Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 223 (Tex. 2002)).

. Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 249 (Tex. 1994); see also San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).

. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 404 (Tex. 2007).

Justice Busby announced the Courts disposition and delivered an opinion, in which Justice Lehrmann, Justice Devine, and Justice Bland joined.

Justice Boyd filed a concurring opinion.

Chief Justice Hecht filed a dissenting opinion, in which Justice Blacklock joined.

Justice Huddle did not participate in the decision.

IN RE: CENTERPOINT ENERGY HOUSTON ELECTRIC (2021)

Authorities cited

Opinion · public domain