Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Texas, Inc. v. David Jenkins, George W. Strong, Francis N. Gans and Gary M. Gans, Individually and on Behalf of All Persons Similarly Situated

Opinion issued November 6, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00470-CV
———————————
ENTERGY CORPORATION, ENTERGY SERVICES, INC., ENTERGY
POWER, INC., ENTERGY POWER MARKETING CORPORATION,
ENTERGY ARKANSAS, INC., AND ENTERGY TEXAS, INC., Appellants
V.
DAVID JENKINS, GEORGE W. STRONG, FRANCIS N. GANS, AND
GARY M. GANS, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS
SIMILARLY SITUATED, Appellees

On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Case No. CV20666

OPINION

This is an interlocutory appeal challenging the trial court’s order certifying a

class action in a suit brought under the Texas Theft Liability Act (“the Theft
Act”). 1 In three issues, appellants, Entergy Corporation, Entergy Services, Inc.,

Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas,

Inc., and Entergy Texas, Inc. (collectively, “Entergy”), contend that the trial court

(1) lacked subject matter jurisdiction over this suit, (2) abused its discretion in

finding that the requisites for class certification had been established, and

(3) abused its discretion by making findings of fact and conclusions of law that

misstate and misapply the applicable law.

We reverse and render.

Background

A. Factual Background

Entergy Corporation is a public utilities holding company with six electric

utility operating companies: Entergy Gulf States Louisiana, L.L.C., Entergy

Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New

Orleans, Inc., and Entergy Texas, Inc. (“ETI”). These six companies, which

operate in four southern states, provide electrical service to approximately 2.6

million retail customers.2

1
TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005 (Vernon 2011 & Supp.
2014).
2
The generation and bulk transmission assets of these six companies are referred to
as the “Entergy System.”

2
 Each operating company has electricity generation facilities, consisting of

nuclear, coal, natural gas, or oil-fired generating plants. The companies are parties

to the Entergy System Agreement (“ESA”), a federal tariff under which power is

shared and distributed. 3 The companies also purchase power from each other and

from non-affiliated third parties in the power market. The ESA provides for

centralized control of power purchases, operations, and use of available resources

throughout the Entergy System. Although each company operates its generation,

transmission, and distribution systems independently, production, purchasing, and

sale of wholesale electricity on behalf of those companies to meet the needs of

retail and wholesale customers are controlled centrally by Entergy Services, Inc.

(“ESI”).

ESI operates a Systems Operation Center, located in The Woodlands, which

controls the selection of power (“dispatch decisions”). The ESA permits the

System Operator to purchase power at wholesale from third-party suppliers. The

System Operator controls daily operations and is in charge of determining whether

system-generated power is sufficient to meet capacity needs or whether purchasing

third-party power is necessary. ESI performs a monthly accounting, assigning a

portion of the total power resources used by the whole system to each operating

3
A “tariff” is a document listing a public utility’s rates and services and having the
force and effect of law. See First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52
S.W.3d 482, 489 (Tex. App.—Dallas 2001, no pet.).

3
company, generating an “intra-system” bill. The cost is dictated by a formula in

Service Schedule MSS-3 of the ESA, which governs the intra-company accounting

for system resources.

B. Procedural Background

On August 5, 2003, David Jenkins, George W. Strong, Francis N. Gans, and

Gary M. Gans, individually and on behalf of all persons similarly situated

(collectively, “Jenkins”), filed suit against Entergy4 alleging that it had devised and

operated an improper energy-purchasing scheme under which it had selected

internally generated, higher-priced electrical power while rejecting less expensive,

available third-party power, resulting in theft from Texas retail power customers in

violation of the Theft Act. On September 15, 2003, Entergy removed the suit to

federal court alleging federal question jurisdiction. The federal court remanded the

case to state court, concluding that the suit did not invoke federal law.

On April 23, 2004, Entergy filed a motion to dismiss for want of

jurisdiction, contending that jurisdiction of Jenkins’s claims was preempted by the

Federal Energy Regulatory Commission (“FERC”) and the Texas Public Utilities

Commission (“PUC”) and that the claims were also barred by the filed-rate

doctrine. On November 24, 2004, the trial court granted Entergy’s motion to

dismiss, finding that it lacked subject matter jurisdiction over Jenkins’s claims.

4
Although not originally named as a defendant in the suit, Entergy Gulf States, Inc.
(appellant ETI’s predecessor) later intervened.

4
 Jenkins appealed the trial court’s order dismissing the case. In Jenkins v.

Entergy Corp., 187 S.W.3d 785 (Tex. App.—Corpus Christi 2006, pet. denied)

(“Jenkins I”), the Corpus Christi Court of Appeals reversed the trial court’s order

dismissing the suit for lack of subject matter jurisdiction. On June 6, 2012, Jenkins

filed a motion to certify a class consisting of Texas retail customers served by ETI

who were billed and paid for electric power from January 1, 1994, to present.

Entergy filed a second motion to dismiss for lack of jurisdiction and three motions

for summary judgment. The trial court denied the motion to dismiss and the

summary judgment motions.

The parties submitted extensive briefing on class certification issues, and the

trial court held a certification hearing lasting several days. On April 30, 2012, the

trial court granted Jenkins’s motion for class certification and issued extensive

findings of fact and conclusions of law. Entergy timely perfected this interlocutory

appeal.

Analysis

In three issues, Entergy contends that the trial court (1) lacks subject matter

jurisdiction over Jenkins’s claims, (2) abused its discretion in finding that Jenkins

had established the requirements for class certification, and (3) abused its

discretion by making findings of fact and conclusions of law that misstate and

misapply the law. Jenkins argues that Jenkins I, which rejected Entergy’s

5
jurisdictional arguments, is the law of the case and prohibits reconsideration of the

subject matter jurisdiction issue. Entergy urges us to find that Jenkins I is not the

law of the case because (1) the circumstances and evidence have changed,

(2) Jenkins I was wrongly decided, (3) the law of the case doctrine should not be

applied to subject-matter jurisdiction determinations, and (4) Jenkins I did not

address all of the issues raised in this appeal.

A. Law of the Case

Because this case comes to us on appeal following remand for further

proceedings in the trial court by the Corpus Christi Court of Appeals in Jenkins I,

which reversed the trial court’s previous order dismissing the case for want of

jurisdiction, we consider, as a preliminary matter, the law of the case doctrine to

determine whether the Corpus Christi Court of Appeals’ decision prevents us from

considering Entergy’s jurisdictional arguments.

“Subject matter jurisdiction is ‘essential to a court’s power to decide a

case.’” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam)

(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)).

“Without jurisdiction the court cannot proceed at all in any cause; it may not

assume jurisdiction for the purpose of deciding the merits of the case.” Fin.

Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem

Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S. Ct. 1184,

6
1191 (2007)). “The failure of a jurisdictional requirement deprives the court of the

power to act (other than to determine that is has no jurisdiction), and ever to have

acted, as a matter of law.” City of DeSoto v. White, 288 S.W.3d 359, 393 (Tex.

2009) (quoting Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359

(Tex. 2004)). Thus, “[a] judgment is void if rendered by a court without subject

matter jurisdiction.” In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 309 (Tex.

2010) (orig. proceeding). “[N]ot only may an issue of subject matter jurisdiction

‘be raised for the first time on appeal by the parties or by the court’, a court is

obliged to ascertain that subject matter jurisdiction exists regardless of whether the

parties questioned it.” Id. at 306 (quoting Loutzenhiser, 140 S.W.3d at 358)

(emphasis in original); City of Allen v. Pub. Util. Comm’n of Tex., 161 S.W.3d 195,

199 (Tex. App.—Austin 2005, no pet.) (“[T]he question of jurisdiction is

fundamental and can be raised at any time in the trial of a case or on appeal.”).

The law of the case doctrine is defined as “that principle under which

questions of law decided on appeal to a court of last resort will govern the case

throughout its subsequent stages.” Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d

593, 596 (Tex. 2006); Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317

S.W.3d 361, 373 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Under the

law of the case doctrine, a court of appeals will ordinarily be bound by its initial

decision if there is a subsequent appeal in the case. Briscoe v. Goodmark Corp.,

7
102 S.W.3d 714, 716 (Tex. 2003). “By narrowing the issues in the successive

stages of the litigation, the law of the case doctrine is intended to achieve

uniformity of decision as well as judicial economy and efficiency.” Id. (quoting

Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). This doctrine is based on

public policy and is aimed at bringing finality to litigation. Id.

A decision rendered on an issue by an appellate court does not, however,

absolutely bar reconsideration of the issue on a second appeal. Id. Rather, the law

of the case doctrine “‘merely expresses the practice of the courts generally to

refuse to reopen what has been decided.’” See It’s the Berry’s, LLC v. Edom

Corner, LLC, 271 S.W.3d 765, 771 (Tex. App.—Amarillo 2008, no pet.) (quoting

Messinger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740 (1912)). The

application of the doctrine lies within the discretion of the court, depending on the

circumstances of the case. Briscoe, 102 S.w.3d at 716. The doctrine does not

necessarily apply when either the issues or the facts presented at successive

appeals are not substantially the same as those involved in the first trial. 5 Pitman

v. Lightfoot, 937 S.W.2d 496, 513 (Tex. App.—San Antonio 1996, writ denied).

Moreover, it is an exception to the law of the case doctrine that the original

decision was clearly erroneous. Briscoe, 102 S.W.3d at 716.

5
The other occasion allowing the doctrine to be set aside—when a partial summary
judgment is followed by a trial on the merits—is not relevant to this appeal. See
Hudson v. Wakefield, 711 S.W.2d 628, 630–31 (Tex. 1986).

8
 Most critically, the law of the case doctrine does not either confer or limit

subject matter jurisdiction and is not a limitation on the power of the courts to act.

See It’s the Berry’s, 271 S.W.3d at 771–72 (refusing to apply law of the case

doctrine to bar review of district court’s exercise of subject matter jurisdiction on

estoppel grounds). “Subject matter jurisdiction cannot be conferred by consent,

waiver, or estoppel at any stage of a proceeding.” Id. (quoting Tourneau Houston,

Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.—Houston [1st

Dist.] 2000, no pet.)). It follows that subject matter jurisdiction cannot be

conferred by a prior decision in the case.

Given this law, we review de novo the issue of whether the Texas courts

have subject matter jurisdiction over Jenkins’s claims. See In re United Servs.

Auto. Ass’n, 307 S.W.3d at 306 (holding that appellate court is “obliged to

ascertain that subject matter jurisdiction exists,” even sua sponte on appeal if not

raised by parties).

B. Entergy’s Jurisdictional Arguments

Entergy argues that the trial court lacks subject matter jurisdiction over

Jenkins’s claims for several reasons. First, Entergy argues that the FERC has

exclusive jurisdiction over Jenkins’s claims. Second, Entergy argues that if this

Court determines that FERC does not have exclusive jurisdiction, then the PUC,

which governs retail rates for power sold to Texas consumers, has exclusive

9
jurisdiction over this case. Third, Entergy asserts that both the federal and Texas

filed-rate doctrines bar Jenkins’s suit. We conclude that FERC has exclusive

jurisdiction over Jenkins’s claims and, therefore, appellees’ claims must be

dismissed.

1. Exclusive Jurisdiction

An agency has exclusive jurisdiction when Congress or the Legislature has

granted that agency the sole authority to make an initial determination in a dispute.

In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding); Subaru

of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002).

Likewise, an agency has exclusive jurisdiction “‘when a pervasive regulatory

scheme indicates that Congress intended for the regulatory process to be the

exclusive means of remedying the problem to which the regulation is addressed.’”

In re Entergy Corp., 142 S.W.3d at 322 (quoting David McDavid Nissan, 84

S.W.3d at 221)). If an agency has exclusive jurisdiction, a party must exhaust all

administrative remedies before seeking review of the agency’s action. Id. at 321

(citing Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)). Until the

party has exhausted all administrative remedies, the trial court lacks subject matter

jurisdiction and must dismiss any claims that fall within the agency’s exclusive

jurisdiction. Id. at 321–22; Oncor Elec. Delivery Co. LLC v. Giovanni Homes

Corp., 438 S.W.3d 644, 648 (Tex. App.—Fort Worth 2014, no pet. h.). Whether

10
an agency has exclusive jurisdiction is a question of law that we review de novo.

In re Entergy Corp., 142 S.W.3d at 322; David McDavid Nissan, 84 S.W.3d at

222.

2. FERC’s Jurisdiction

Jenkins claims that ETI, in conspiracy with its parent and affiliates

(Entergy), stole the class’s money by charging them for using ETI-generated

electrical power or power purchased from other entities within the Entergy System

instead of cheaper power available from third parties, in violation of the Theft Act.

The Corpus Christi Court of Appeals noted in Jenkins I that the ESA

provides that: (1) the companies within the Entergy System, with the consent of or

under conditions specified by the operating committee, may agree to purchase

capacity or energy from outside sources that, if purchased by the operating

company, shall be allocated amongst the companies in the System in any manner

mutually agreeable to them; (2) the operating committee may purchase energy

under economic dispatch or emergency conditions; (3) the operating committee is

to ensure the continuous supply or capacity of energy, provide for and coordinate

safe dispatching and the proper distribution of reserves, coordinate negotiations for

the interchange and sale of power and energy, including the sale and delivery to

others on a profitable basis of power and energy not required for system purposes,

and to secure power from external sources as may be required or will result in

11
savings to the companies; and (4) the operating committee shall determine

availability of energy for purchase from or sale to outside systems in an

economical manner. See 187 S.W.3d at 806.

As Entergy explains and its evidence shows, electricity cannot be practically

stored. Rather, at all times, available power must match demand, which is based

upon ever-changing customer usage. To match power and demand, Entergy selects

generating resources to meet estimated future demand (the commitment process)

and determines the level at which committed resources will be operated and

adjusted to meet the instantaneous demand (the demand process). These processes

involve determining what third-party power is available, what price the seller is

demanding, what quantity is available each hour, whether transmission service is

available to deliver the purchased power to where it is needed, whether available

third-party power can be automatically dispatched or must be purchased in

unchangeable blocks of time and energy, whether there is Entergy generation that

could and should be displaced, and whether reserve requirements can be met.

Operation of the System requires that a significant portion of the System’s

resources be able to respond to changes in demand through instantaneous changes

in the amount of electricity provided, which requires flexible system generators.

Entergy relies on flexible generation to be able to comply with federal law, which

permits industrial co-generators on the Gulf Coast to require Entergy to take excess

12
power into the System or to cease supplying power to the System without notice.

Entergy avers that third-party power is generally not flexible, limiting the amount

of third-party power the Entergy System can use.

Entergy’s fuel and purchased-power costs are subjected to scrutiny by FERC

under the Federal Power Act (“FPA”) and by the PUC under the Public Utilities

Regulatory Act (“PURA”). FERC regulates wholesale power transactions and has

exclusive jurisdiction over wholesale power rates. The PUC governs ETI’s

recovery of fuel and purchased-power costs from its customers and, in fuel

reconciliation proceedings, it reviews and makes a final determination as to the

reasonableness and necessity of ETI’s incurred fuel and purchased-power costs.

The cost of system-generated or purchased power is charged directly to ratepayers,

subject to PUC prudence review. This cost charged to ratepayers is the subject of

Jenkins’s sole complaint—that Entergy has over-charged appellees in violation of

the Theft Act.

Under the FPA, FERC has exclusive jurisdiction of the wholesale sale or

transmission of electricity in interstate commerce. See 16 U.S.C.A. § 824(a),

(b)(1); Entergy La., Inc. v. La. Pub. Serv. Comm’n, 539 U.S. 39, 41, 123 S. Ct.

2050, 2053 (2003). FERC’s exclusive jurisdiction extends not only to rates but

also to power allocations that affect wholesale rates. See Miss. Power & Light Co.

v. Miss. ex rel. Moore, 487 U.S. 354, 371–72, 108 S. Ct. 2428, 2439 (1988)

13
(holding that states may not alter allocations of power ordered by FERC by

substituting their own determinations of what would be just and fair; FERC-

mandated allocations of power are binding on states and must be treated as fair and

reasonable when determining retail rates, and “[s]tates may not bar regulated

utilities from passing through to retail consumers FERC-mandated wholesale

rates”).

FERC’s jurisdiction encompasses the determination of just and reasonable

rates—including all classifications, practices, regulations, and contracts affecting

rates, as well as the authority to hear complaints that an existing rate (or associated

charge, classification, rule, regulation, practice or contract) is unjust, unreasonable,

unduly discriminatory or preferential. See 16 U.S.C.A. §§ 824d, 824e. FERC also

has exclusive jurisdiction to make a final determination as to whether the rate has

been violated. AEP Tex. N. Co. v. Tex. Indus. Energy Consumers, 473 F.3d 581,

586 (5th Cir. 2006). The “filed rate doctrine” requires that interstate power rates

filed with, or fixed by, FERC must be given binding effect by state utility

commissions determining intrastate rates in that the FPA and the Supremacy

Clause preempt any state action modifying or overruling the filed rate. See 16

U.S.C.A. § 824(b)(1); Entergy La., 539 U.S. at 47, 123 S. Ct. at 2056; AEP Tex. N.

Co., 473 F.3d at 584.

14
 The FPA gives states, municipalities, and retail ratepayers the right to

participate in FERC proceedings and to file complaints. 16 U.S.C.A. §§ 824d,

824e, 825e. The FPA also gives FERC exclusive jurisdiction to remedy rate

violations by providing refunds. Id. § 824e; AEP Tex. N. Co., 473 F.3d at 586.

And it provides civil penalties for violating any provision of the governing chapter

of the FPA or any rule or order thereunder. 16 U.S.C.A. § 825o-1(b).

Entergy Louisiana involved the same group of energy companies as in this

case and a similar issue involving FERC preemption of state utility commission

regulation of power rates under the filed-rate doctrine. Entergy Louisiana shared

capacity with its fellow operating companies in the Entergy System which allowed

the companies “to access additional capacity when demand exceeds the supply

generated by that company alone.” Entergy La., 539 U.S. at 42, 123 S. Ct. at 2053.

Pursuant to MSS-1 of the System Agreement, the same ESA at issue here, Entergy

allocated the costs of keeping excess capacity available among the operating

companies. Id. MSS-1 provided a formula to calculate “cost-equalization”

payments among the companies in the System, which ensured that companies

within the System that used more capacity than they contributed (“short”

companies) made payments to companies that contributed more capacity than they

used (“long” companies). Id. at 42–43, 123 S. Ct. at 2053–54. Entergy determined

each company’s capacity on a monthly basis, and a company that contributed more

15
capacity than it used received a payment equal to its average cost of the company’s

generating units multiplied by the number of megawatts the company was

considered “long.” Id. at 43, 123 S. Ct. at 2054. Under Entergy’s Extended

Reserve Shutdown (“ERS”) program, the operating committee could designate

some generating units as not immediately necessary for capacity needs; but

because these units could be activated if energy demand increased in the future,

these units were considered “available” under the MSS-1’s cost-equalization

calculations. Id.

FERC approved an amendment to the System Agreement that “allow[ed] an

ERS unit to be treated as available under MSS-1 if the operating committee

determine[d] it intend[ed] to return the unit to service at a future date.” Id. at 44,

123 S. Ct. at 2054. Entergy Louisiana, which routinely had to make cost-

equalization payments to other companies within the System pursuant to MSS-1,

filed its 1997 retail rates with the Louisiana Public Service Commission

(“LPSC”)—the counterpart to the Texas PUC in this case. See id. at 45, 123 S. Ct.

at 2055. The LPSC determined that, although it was preempted from determining

whether the operating committee’s inclusion of ERS units prior to August 5,

1997—the date of the FERC order approving the amendment to the System

Agreement—was prudent, it was not preempted from “disallowing MSS-1 related

costs as imprudent subsequent to August 5, 1997.” Id. The LPSC “concluded that

16
the operating committee’s treatment of ERS units after August 5, 1997, was

imprudent and that [Entergy Louisiana’s] MSS-1 payments would not be

considered when setting [its] retail rates in Louisiana.” Id. at 46, 123 S. Ct. at

2055.

The United States Supreme Court determined that the LPSC’s order

“impermissibly ‘traps’ costs that have been allocated in a FERC tariff” in violation

of the filed-rate doctrine. Id. at 49, 123 S. Ct. at 2057. The Court noted that the

System Agreement “leaves the classification of ERS units to the discretion of the

operating committee” instead of involving a specific FERC-mandated cost-

allocation. Id. The Court refused to create an exception to the filed-rate doctrine,

even though the case did not involve a specific FERC mandate, reasoning that to

do so would “substantially limit FERC’s flexibility in approving cost allocation

arrangements.” Id. at 50, 123 S. Ct. at 2057. The Court also held that preemption

did not depend on the existence of a FERC order approving the particular

classification at issue, stating, “It matters not whether FERC has spoken to the

precise classification of ERS units, but only whether the FERC tariff dictates how

and by whom that classification should be made.” Id.

The same FERC-approved System Agreement that governed in Entergy

Louisiana governs Entergy’s operations in this case. ESA section 6.02 sets out the

duties of the System Operating Center. This section provides that Entergy Services

17
shall “[d]etermine the most effective scheduling of sources for the reliable supply

of power and energy on an economical basis to the companies” and “[d]etermine

the availability of energy for purchase from or sale to outside systems on an

economical basis under effective contracts and arrange for and schedule such

transactions.” The ESA thus allows the System Operator to meet energy demand

by purchasing capacity from third-party sources, but the ESA does not specifically

dictate the amount of power the System Operator is to purchase from third-party

sources relative to system-generated power. This decision is therefore left to the

System Operator’s discretion under the FERC-approved ESA.

Jenkins challenges that decision, alleging that Entergy manipulated the

computer programs used in making purchasing decisions, such that Entergy

purchased more expensive system-generated power even though lower-cost third-

party power was available, resulting in Entergy’s charging higher rates to its retail

customers. Jenkins seeks a refund of retail charges, but he complains about

Entergy’s wholesale electricity purchases. Although Jenkins does not allege

breach of the ESA as a cause of action, he challenges Entergy’s purchasing

decisions—whether to use allegedly available third-party electricity or system-

generated electricity—which Entergy undertook pursuant to the ESA.

Determining whether Entergy permissibly exercised its discretion in making its

18
purchasing decisions thus necessarily requires consideration of the ESA, a FERC-

approved tariff.

Because resolving this dispute involves the consideration and interpretation

of a FERC-approved tariff, we conclude that this dispute falls within FERC’s

exclusive jurisdiction. See AEP Tex. N. Co., 473 F.3d at 585 (“FERC, not the

state, is the appropriate arbiter of any disputes involving a tariff’s interpretation.”);

see also Entergy La., 539 U.S. at 50, 123 S. Ct. at 2057 (“It matters not whether

FERC has spoken to the precise classification of ERS units, but only whether the

FERC tariff dictates how and by whom that classification should be made.”).

Because Jenkins did not exhaust his administrative remedies by first

bringing this dispute before FERC, we hold that the trial court lacks subject matter

jurisdiction over the case. See In re Entergy Corp., 142 S.W.3d at 321–22 (holding

that when agency has exclusive jurisdiction over dispute, party must exhaust all

administrative remedies before seeking relief in district court from agency

decision, and until party exhausts administrative remedies, trial court lacks subject

matter jurisdiction). We hold that the trial court erroneously denied Entergy’s

motion to dismiss for lack of jurisdiction and that the trial court’s class-

certification order is therefore void.

19
 Accordingly, we sustain Entergy’s first issue. 6

Conclusion

We declare the trial court’s order granting class certification void. We

reverse the order of the trial court denying Entergy’s motion to dismiss and render

judgment dismissing all claims against Entergy.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Justice Sharp, dissenting. Opinion to follow.

6
Given our disposition of Entergy’s first issue, we need not reach its second and
third issues. See TEX. R. APP. P. 47.1.

20