TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00430-CV
Nucor Steel - Texas, a Division of Nucor Corporation, Appellant
v.
Public Utility Commission of Texas, Oncor Electric Delivery Company and
Texas Energy Future Holdings Limited Partnership, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-08-002467, HONORABLE RHONDA HURLEY, JUDGE PRESIDING
OPINION
Texas Energy Future Holdings Partnership (“Texas Energy”) sought to acquire
Oncor Electric Delivery Company (“Oncor”), which is a transmission-and-distribution electric
utility. Under the relevant statutory scheme, the Public Utility Commission (“Commission”) is
required to analyze whether the acquisition of a regulated utility is in the public interest. See Tex.
Util. Code Ann. § 14.101 (West Supp. 2011). Consequently, Texas Energy and Oncor filed various
business commitments with the Commission regarding the acquisition and asserted that the
proposed acquisition was in the public interest. In response, Nucor Steel - Texas, a division of
Nucor Corporation (“Nucor”), intervened and opposed the proposed acquisition. Ultimately, the
Commission determined that the transaction was in the public interest, and the district court upheld
that determination. On appeal, Nucor challenges the Commission’s construction of the statutes
setting out the public-interest analysis relevant to the proposed transaction. Essentially, Nucor
argues that the Commission’s erroneous construction foreclosed the admission of certain evidence
and testimony that Nucor contends should have been considered as part of the public-interest
analysis. In addition, Nucor also contends that the Commission’s public-interest determination is not
adequately supported by the evidence in the record. We will affirm the judgment of the district court.
STATUTORY FRAMEWORK
As mentioned above, this case involves the acquisition of a utility. For some time
now, the legislature has imposed various restrictions on certain business transactions involving
public utilities. See Tex. Util. Code Ann. § 14.101. A restriction relevant to this case states that if
a public utility is going to enter into a transaction that “involves the sale of at least 50 percent of the
stock of the utility,” the utility must report the transaction to the Commission “within a reasonable
time.” Id. § 14.101(b). After being informed of the transaction, the Commission is required to
investigate the proposed transaction in order “to determine whether the action is consistent with the
public interest.” Id. Further, the legislature provided the Commission with the following various
factors to consider in making its public-interest determination:
(1) the reasonable value of the property, facilities, or securities to be acquired,
disposed of, merged, transferred, or consolidated;
(2) whether the transaction will:
(A) adversely affect the health or safety of customers or employees;
(B) result in the transfer of jobs of citizens of this state to workers
domiciled outside this state; or
(C) result in the decline of service;
2
(3) whether the public utility will receive consideration equal to the reasonable value
of the assets when it sells, leases, or transfers assets; and
(4) whether the transaction is consistent with the public interest.
Id. If the Commission ultimately concludes that the transaction is not in the public interest, the
Commission will “take the effect of the transaction into consideration in ratemaking proceedings
and disallow the effect of the transaction if the transaction will unreasonably affect rates or service.”
Id. § 14.101(c).
Recently, the legislature enacted another provision that is related to the public-interest
analysis. See id. § 39.262(o) (West Supp. 2011). In particular, the new provision provides that if
a utility or a person seeking to “acquire or merge with” the utility “files with the [C]ommission
a stipulation, representation, or commitment” as part of its filing under section 14.101, the
Commission “may enforce the stipulation, representation, or commitment to the extent that” it “is
consistent with the standards provided by this section and Section 14.101.” Id. In addition, the
provision states that the Commission “may reasonably interpret and enforce conditions adopted
under” the new provision. Id.
When Texas Energy and Oncor informed the Commission about the proposed
transaction, they filed various commitments relating to the transaction. Before performing the
public-interest analysis in this case, the Commission asked the parties to provide briefing regarding
the scope of the types of information that the Commission may consider in light of the deregulation
of the electric market. In particular, although the Commission was not faced with the prospect of
being asked to actually enforce one of the proposed commitments, the Commission asked the parties
3
to explain whether the Commission has the authority to enforce every commitment that is made
or whether its authority is limited to commitments that affect the regulated transmission-and-
distribution-electric utility. After the parties filed their briefs, the Commission determined that its
enforcement authority is limited to stipulations affecting the regulated utility. In light of that
determination, the Commission made evidentiary rulings limiting the types of evidence that may be
admitted in the public-interest hearing to evidence demonstrating how the regulated utility will be
affected by the transaction and by the various stipulations made by Texas Energy and Oncor. The
determination regarding the scope of the Commission’s enforcement authority and the accompanying
evidentiary rulings form the basis for this appeal.1
BACKGROUND
With the preceding in mind, we now summarize the events that led to the dispute
at issue. As described previously, Oncor is a transmission-and-distribution electric utility. See
Tex. Util. Code Ann. § 31.002(19) (West 2007) (defining “transmission and distribution utility”).
1
In addition to the provision authorizing the enforcement of stipulations, the legislature also
recently promulgated other statutory provisions pertaining to transactions involving an electric
utility. See Tex. Util. Code Ann. § 39.262(l)-(n) (West Supp. 2011). As with section 14.101, the
new statutory provisions require utilities to inform the Commission about certain proposed
transactions and state that the Commission must approve a transaction provided that it “finds that
the transaction is in the public interest.” Id. § 39.262(l), (m). These additional statutory provisions
also include new factors for the Commission to consider when it performs a public-interest analysis.
Id. § 39.262(m) (listing following factors for consideration: whether transaction will adversely affect
reliability of service, availability of service, or cost of service). However, the legislature expressly
limited the applicability of those new factors to proposed business transactions that were filed
with the Commission after the filing at issue in this case. Id. § 39.262(n) (stating that subsections
(l) and (m) do not apply to transactions in which agreement was executed before April 1, 2007,
provided that filing for review before Commission was filed before May 1, 2007). Accordingly, the
Commission did not consider the new provisions when performing its public-interest analysis.
4
During the time relevant to this appeal, Oncor was a wholly owned subsidiary of TXU Corp. At that
time, TXU Corp. also owned two other companies that were affiliated with Oncor. Those companies
were TXU Energy (a retail-electric provider) and Luminant (a power-generation company).
Texas Energy sought to acquire TXU Corp. in its entirety, and Texas Energy
and Oncor informed the Commission about the proposed acquisition. See id. § 14.101 (requiring
public utilities to report proposed sales or acquisitions to Commission so that Commission may
investigate proposed transactions). Nucor and various other parties intervened and opposed the
proposed acquisition.
When Texas Energy initiated the acquisition, it made several business commitments,
and Texas Energy and Oncor filed a stipulation with the Commission that set out all of the various
commitments. The filed stipulation explained that some of the commitments were designed “to
support the separateness of Oncor from the rest of TXU Corp. and its subsidiaries.” However, the
stipulation also detailed other commitments that were “unrelated to Oncor’s business [or] the
[Commission] proceeding” and that were only included for “the sake of completeness.” Many of
those commitments addressed Oncor’s affiliates and are the subject of part of the dispute at issue in
this case. Specifically, the controversial commitments were promises to reduce the rates charged by
the retail-electric provider, to maintain majority ownership of TXU Corp. for more than five years,
to reduce the number of planned coal units, and to invest resources into emerging energy technologies.
Early on in the application process, the Commission asked the various parties to brief
certain procedural issues regarding the scope of the newly adopted subsection 39.262(o) of the
utilities code. See id. § 39.262(o). As discussed previously, that provision empowers the Commission
5
to enforce stipulations filed as part of the approval process. In essence, the Commission wanted
input from the parties regarding whether the Commission’s new statutory authority to enforce
commitments allowed it to enforce all commitments that are made or whether the authority is limited
only to commitments related to the public utility. Although the Commission was not being asked
to enforce any specific stipulation at that time, the Commission was seeking clarification regarding
the types of information that it could consider during the public-interest determination regarding
the proposed transaction by Texas Energy and Oncor. In other words, the Commission elicited
responses regarding whether the Commission is limited to considering how commitments will affect
the utility or whether the Commission may more globally consider the effect of the commitments.
After receiving various responses, the Commission issued an order stating that its
review of a proposed business transaction under the utilities code is limited in scope. Specifically,
the Commission determined that it could only enforce commitments that directly related to a public
utility. Essentially, the Commission reasoned that in light of the recent deregulation of the electric
industry, the legislature only intended to empower the Commission to enforce commitments that
related to a public utility and did not intend to allow the Commission to “evaluate or enforce any
commitment made that relates to [an] affiliate of [a] public utility.” In light of that determination,
the Commission reasoned that it could “only address commitments that directly affect Oncor” in the
public-interest analysis under section 14.101 of the utilities code. See id. § 14.101.
Soon after the Commission issued its limiting order, Nucor filed discovery requests
regarding the four commitments previously discussed that were “unrelated to Oncor’s business,” but
Texas Energy and Oncor objected to the discovery requests as exceeding the scope of the proceeding.
6
The Commission sustained those objections. Later, Nucor attempted to file testimony pertaining to,
among other things, the four commitments. When seeking the admission of the testimony, Nucor
insisted that the Commission should consider the offered testimony because it demonstrated that the
sale of Oncor will have a negative impact on the State as a whole. As with the discovery requests,
Oncor moved to strike the testimony as being beyond the scope of the proceeding, and the
Commission agreed in part and struck portions of the offered testimony that it determined were
beyond the scope of the proceeding.
During the course of the proceeding, Texas Energy and Oncor agreed to amend their
initial stipulation in order to address the concerns of some of the intervening parties. Several of the
intervening parties endorsed the amendments, and Texas Energy, Oncor, and many of the intervening
parties adopted the new stipulation. The new stipulation did not contain the four controversial
commitments that did not pertain to Oncor. Nucor did not endorse the new stipulation and continued
to object to the acquisition by arguing that the stipulation was not in the public interest.
When contesting the stipulation, Nucor relied on testimony that had been previously
submitted by parties that originally objected to the merger but had now changed their minds. Shortly
after Nucor filed its objections, the parties whose evidence Nucor relied on moved to withdraw their
previously filed testimony. Because the now-settling parties withdrew their testimony, Texas Energy
and Oncor moved to strike the portion of Nucor’s filings that relied on the withdrawn testimony.
The Commission granted the motions to strike and thereby removed portions of Nucor’s filed
testimony and exhibits.
Ultimately, the Commission issued an order concluding that the proposed acquisition
and stipulation were in the public interest, and Nucor appealed the Commission’s order. See Tex.
7
Gov’t Code Ann. § 2001.144(a) (West 2008) (explaining when agency decision is final in contested
case), § 2001.145 (West 2008) (stating that final agency decision is appealable). The district court
affirmed the Commission’s final order, and Nucor appeals the district court’s judgment.
DISCUSSION
On appeal, Nucor presents three issues challenging the district court’s affirmance of
the Commission’s final order. First, Nucor contends that the Commission erred when it determined
that the provisions of the utilities code described above only authorized the Commission to
“evaluate and enforce” the commitments made by Texas Energy that directly affected Oncor (the
public utility). Relatedly, Nucor asserts that the Commission erred by concluding that it could not
consider “any broader public interest evaluation of the entire transaction.” Second, Nucor challenges
the Commission’s decision based on the previous determinations to limit Nucor’s permissible
discovery requests and to remove portions of Nucor’s filed testimony. Finally, Nucor argues that
the Commission’s approval of the stipulation by Texas Energy and Oncor was not adequately
supported by evidence in the record.
The Commission’s Interpretation of the Scope of its Authority
As mentioned above, Nucor challenges the Commission’s construction of the various
statutes that govern the public-interest analysis that the Commission was required to perform in this
case. After this appeal was filed, the supreme court was confronted with a similar situation in which
an agency determined that the statutes at issue limited the type of information that it may consider
when performing a public-interest analysis. Railroad Comm’n v. Texas Citizens for a Safe Future
8
& Clean Water, 336 S.W.3d 619 (Tex. 2011). As in the present case, a party challenged the agency’s
construction as being too narrow and inconsistent with the relevant governing scheme, id. at 622-23,
and the supreme court explained that the “crux of the dispute, then, is whether the term
‘public interest’ is a broad, open-ended term, encompassing any conceivable subject potentially
affecting the public, or a more narrow term,” id. at 624. When determining whether to uphold the
Commission’s interpretation, the supreme court noted that rather than being clear and unambiguous,
the meaning of the term “public interest” is instead an amorphous concept. Id. at 628.
After setting out the dispute in the case, the supreme court outlined the proper
standard by which courts review an agency’s construction of an ambiguous statute that the agency is
charged with enforcing. Although generally stating that statutory construction is a question of law that
appellate courts review de novo, id. at 624 (citing First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627,
631 (Tex. 2008)); see also Fireman’s Fund County Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 768-69
(Tex. 2000) (stating that when performing statutory construction, courts should look to plain
meaning of words used in statute), the court also explained that reviewing courts also give “serious
consideration” or “some deference” to an agency’s interpretation of a statute that it is charged with
enforcing, Texas Citizens, 336 S.W.3d at 624-25, provided that the statutory language at issue is
“ambiguous,” id. at 625 (quoting Fiess v. State Farm Lloyds, 202 S.W.3d 744, 747-48 (Tex. 2006)),
and provided that the agency’s interpretation “‘is reasonable and does not contradict the plain
language of the statute,’” id. (quoting Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.
1993)); see also id. (stating that “‘alternative unreasonable constructions do not make’” statute
ambiguous (quoting Fiess, 202 S.W.3d at 748)). In addition, the court explained that it “is precisely
9
when a statutory term is subject to multiple understandings that we should defer to an agency’s
reasonable interpretation.” Id. at 628. The court then emphasized that deference is particularly
warranted when the statutory term at issue is “as amorphous as ‘public interest,’” when the agency
oversees “a complex regulatory scheme,” and when the analysis to be performed “implicates” the
agency’s technical expertise. Id. at 629-30. Finally, the court reasoned that because an agency’s
interpretation “of a statute it is charged with administering” only has “to be reasonable and in accord
with the statute’s plain language,” an agency’s construction does not have to be “the only—or the
best—interpretation in order to warrant . . . deference.” Id. at 628.
As with the agency involved in Texas Citizens, the Commission is charged with
overseeing a complex regulatory scheme. See Tex. Util. Code Ann. §§ 11.002(c) (stating that
purpose of public utility regulatory act is to grant Commission authority to protect customers of
electric services), 14.001 (West 2007) (bestowing upon Commission power to regulate public
utilities within its jurisdiction). Also, the issue in this case involves the boundaries of a similarly
amorphous public-interest determination that falls within the Commission’s technical expertise. See
id. § 14.101. Accordingly, we apply the same standard of review that was applied in Texas Citizens.2
2
In its reply brief, Nucor asserts that the Commission’s interpretation is not entitled to any
deference because “the Commission provided no discernible reason for making its decision.” We
disagree. Although Nucor correctly points out that the Commission did not refer to the arguments
made by Texas Energy or Oncor regarding the Commission’s authority under subsection 39.262(o),
the Commission did provide a basis in its order for its limited construction of section 39.262(o). In
particular, the Commission stated as follows:
The Commission finds that the legislative intent of the language in § 39.262(o)
indicates that this section only applies to the public utility and to commitments
that directly affect the public utility. While the Commission has examined a wide
variety of issues related to public utility transactions using the public interest
10
In challenging the Commission’s construction of the statutes as prohibiting review
and enforcement of stipulations that do not relate to Oncor, Nucor asserts that “nowhere in Section
39.262(o) are there the limitations the Commission claims.” More specifically, Nucor argues that
no language requires that a stipulation have a “direct effect” on the transmission-and-distribution
utility and asserts that the Commission’s determination provides no guidance regarding when
something directly affects a utility. Instead, Nucor contends that although the Commission typically
only has authority over regulated utilities, the plain language of subsection 39.262(o) expansively
empowered the Commission to review and enforce any stipulation given as part of a filing under
section 14.101, “no matter who made the stipulation.” As support for this proposition, Nucor notes
that subsection 39.262(o) applies to stipulations made by “an electric utility or transmission and
standard in § 14.101(b)(4), most of these proceedings took place prior to S.B. 7
and a restructured electric industry in ERCOT, and are not directly comparable to
this proceeding. The restructuring of the electric industry in Texas, as well as the
legislative history concerning § 39.262(o), limit the Commission’s review of
the pending transaction. Therefore, the Commission’s determination . . . is that the
Commission cannot evaluate or enforce any commitment made that relates to the
affiliate of the public utility, and can only address commitments that directly
affect Oncor.
In its brief, Nucor also contends that the more thorough explanation for the limited
construction that is found in the Commission’s appellate brief should be disregarded because it
amounts to nothing more than impermissible “post hoc rationalization.” See Trans-American Van
Serv., Inc. v. United States, 421 F. Supp. 308, 319 (N.D. Tex. 1976) (stating that reviewing courts
may not search record for “post hoc rationalizations that the [agency] itself has not articulated as a
basis for its result”). Although the Commission elaborated on its construction in its appellate brief,
the main thrust of the Commission’s briefing on this issue is the same as that expressed in its order:
that the Commission does not have authority over the companies affiliated with Oncor because it
currently only has authority over public or regulated utilities. Accordingly, we cannot conclude that
the Commission’s briefing on the issue represents the sort of post hoc rationalization that we should
disregard.
11
distribution utility or a person seeking to acquire or merge with an electric utility or transmission
and distribution utility.” Tex. Util. Code Ann. § 39.262(o) (emphasis added). In light of this
provision as well as the broad definition for “person” found in the utilities code, Nucor urges that
subsection 39.262(o) plainly empowers the Commission to enforce any stipulation filed regardless
of whether the stipulation had an effect on the regulated transmission-and-distribution utility and to
determine whether all filed stipulations are in the public interest. See id. § 11.003(14) (West 2007)
(defining “[p]erson” as including individuals, partnerships, mutual or cooperative associations, and
corporations”); see also id. § 39.262(o) (stating that Commission “may reasonably interpret and
enforce conditions adopted under this section”).
Similarly, Nucor contends that there is no statutory support in section 14.101 for the
limitations imposed by the Commission. In making this assertion, Nucor notes that subsection
14.101(b) requires the Commission to determine if a “transaction” is in the “public interest” and
asserts that nothing in the remainder of section 14.101 “suggests that the ‘transaction’ under review
is limited to the public utility (in this case Oncor) or that the ‘public interest’ is somehow limited
exclusively to the regulated electric utility transmission and distribution service.” Id. § 14.101. To
the contrary, Nucor insists that the plain meaning of the wording in the statute supports the opposite
conclusions. In addition, Nucor argues that the factors listed in the public-interest analysis under
section 14.101—value of property to be acquired, adverse health or safety effects, transfer of jobs,
decline of service, consideration given for acquisition, and public interest—are broad considerations
that may be applied to anyone seeking to acquire a transmission-and-distribution utility under
subsection 39.262(o). See id. §§ 14.101, 39.262(o).
12
In addition, Nucor insists that construing the statutes in the manner suggested by the
Commission would render subsection 39.262(o) a “functional nullity” because even though the
language of the statute seems to expand the Commission’s power, the Commission’s interpretation
provides the Commission “with no more and no less authority than it had under Section 14.101(b)
to review mergers and acquisitions of regulated utilities.” See Tex. Gov’t Code Ann. § 311.021
(West 2005) (explaining that when construing statutes, courts should presume that legislature
intended entire statute to be effective). Moreover, Nucor contends that if the legislature had intended
the limitation suggested by the Commission, the legislature could have easily said that when it
promulgated subsection 39.262(o). See USA Waste Servs. of Houston, Inc. v. Strayhorn, 150 S.W.3d
491, 494 (Tex. App.—Austin 2004, pet. denied) (explaining that courts presume that every word
was deliberately chosen and that excluded words were left out on purpose). Finally, Nucor argues
that the Commission’s construction improperly favors Texas Energy’s private interest in avoiding
oversight of the deregulated portions of the acquisition over the public’s interest in having
“review and enforcement of [all] commitments beneficial to the public that were placed before the
Commission, even if not directly applicable to Oncor.” See Tex. Gov’t Code Ann. § 311.021(5)
(stating that when performing statutory construction, courts presume that “public interest is favored
over any private interest”).
Nucor presents a reasonable construction of the various statutes involved to the extent
that the language of the statutes could be read as empowering the Commission to review and enforce
all stipulations that are filed as part of a section 14.101 application. However, the question to be
decided in this case is whether the Commission’s interpretation is also reasonable, consistent with
the governing statutes, and therefore, entitled to deference.
13
When construing the statutes involved, the Commission took note of the foundational
shift in the Texas electricity market that occurred in the time between when section 14.101
was originally enacted and when section 39.262 was amended to add subsection 39.262(o). At the
time section 14.101 was enacted, utilities were operating as monopolies that were regulated by
the Commission. See CenterPoint Energy Houston Elec., LLC v. Gulf Coast Coal. of Cities,
252 S.W.3d 1, 7 (Tex. App.—Austin 2008) (on reh’g), aff’d in part, rev’d in part sub nom., State v.
Public Util. Comm’n, 344 S.W.3d 349 (Tex. 2011). Under this scheme, a region in Texas “was
served by a single vertically integrated utility,” Cities of Corpus Christi v. Public Util. Comm’n,
188 S.W.3d 681, 684 (Tex. App.—Austin 2005, pet. denied), meaning that a single utility “produced,
transported, and retailed electricity” for the region, Reliant Energy, Inc. v. Public Util. Comm’n,
101 S.W.3d 129, 133 (Tex. App.—Austin 2003), rev’d in part sub nom., CenterPoint Energy, Inc. v.
Public Util. Comm’n, 143 S.W.3d 81 (Tex. 2004).
However, in 1999, the legislature enacted various statutes that began the transition
to a competitive retail-service industry. See Act of May 27, 1999, 76th Leg., R.S., ch. 405, 1999
Tex. Gen. Laws 2543 (current version at Tex. Util. Code Ann. §§ 39.001-.910 (West 2007 & Supp.
2010)). Under the new competitive market, “the formerly integrated utilities were required to
‘unbundle’ and divide into three separate entities: (1) retail electric providers, (2) power-generation
companies, and (3) transmission-and-distribution utilities.” Gulf Coast, 252 S.W.3d at 7; see
Tex. Util. Code Ann. § 39.051(a)-(b) (West 2007). “After the deregulation process was completed,
the power-generation and retail electric markets would be subject to the ‘normal forces of competition’
and ‘customer choices,’ but the transmission-and-distribution utilities would remain regulated by the
Commission.” Gulf Coast, 252 S.W.3d at 8 (quoting Tex. Util. Code Ann. § 39.001(a) (West 2007)).
14
Consistent with the statutory mandate, a formerly integrated utility was unbundled
and divided into Oncor, an affiliated retail-electric provider, and an affiliated power-generation
company. As a result, only Oncor was still subject to regulation by the Commission, but its affiliated
companies were not. In light of this dramatic regulatory shift, the Commission concluded that its
enforcement powers under subsection 39.262(o) extended only to stipulations that affected the
company over which it had regulatory authority (Oncor) and not to stipulations that related to
companies affiliated with Oncor but did not directly affect Oncor.3 For that reason, the Commission
also determined that it may only consider evidence related to the regulated utility when considering
whether a proposed transaction is in the public interest under section 14.101 of the utilities code.
See Tex. Util. Code Ann. § 14.101.
The Commission’s limiting interpretation is supported by the language in section
14.101. Section 14.101 applies to transactions involving a “public utility” and imposes obligations
and restrictions on public utilities. See id. After deregulation, Oncor remained a public utility by
statutory directive, but the affiliated companies did not. See id. §§ 11.004 (defining “public utility”
3
As support for its assertion that the Commission’s limited interpretation of subsection
39.262(o) is incorrect, Nucor refers to two cases addressing controversies arising prior to
deregulation in which courts broadly described the Commission’s authority over agreements
between parties. See In re Entergy Corp., 142 S.W.3d 316, 324 (Tex. 2004) (stating that merger
agreement between utility and various parties was basis for Commission’s approval of merger and
that administrative character that gave effect to merger agreement also gave Commission authority
to adjudicate disputes arising from agreement); Public Util. Comm’n v. Southwestern Bell Tel. Co.,
960 S.W.2d 116, 119-20 (Tex. App.—Austin 1997, no pet.) (explaining that power to conduct
adjudicative proceedings necessarily includes “power to accept and act upon an agreement between
the parties that removes from dispute and litigation a subsidiary issue of fact or law” and “power to
formulate and award a reasonable remedy to effectuate the agreement”). However, nothing in either
of those cases compels a conclusion that the Commission’s limited interpretation, particularly in
light of the deregulation of the electric market, is inconsistent with the governing statutory language.
15
as including electric utilities), 31.002(6) (West 2007) (specifying that term “electric utility” includes
transmission-and-distribution utility but expressly excluding power-generation companies and
retail-electric providers); see also id. § 36.001(a) (West 2007) (authorizing Commission to “regulate
rates of an electric utility”). Accordingly, the Commission’s construction of section 39.262(o) as
pertaining only to stipulations involving Oncor is consistent with the focus in section 14.101 on
public utilities.
In light of the dramatic change in the electric market and in light of the Commission’s
newly diminished regulatory role, the Commission’s construction of the statutes at issue is reasonable
and consistent with the language of the statutes at issue as well as the entire statutory structure
changing the Texas electric market to a competitive and deregulated market. See Jones v. Fowler,
969 S.W.2d 429, 432 (Tex. 1998) (explaining that when determining legislative intent, entire act,
not isolated portions, must be considered).4
We also observe that the Commission’s interpretation is consistent with the legislative
history pertaining to the enactment of subsection 39.262(o). See Tex. Gov’t Code Ann. § 311.023(3)
4
We note that subsection 39.262(o) does not require the Commission to enforce
stipulations filed. See Tex. Util. Code Ann. § 39.262(o). Instead, the legislature stated that the
Commission “may enforce” filed stipulations. Id. Accordingly, the legislature has left the decision
regarding whether to enforce a stipulation to the Commission’s discretion. See Tex. Gov’t Code
Ann. § 311.016(1) (West 2005) (explaining that legislature’s use of word “[m]ay creates
discretionary authority”). Even assuming that the Commission could exert authority over stipulations
unrelated to a public utility, in light of the legislature’s decision to deregulate the electric market, we
would be unable to conclude that the Commission abused its discretion by refusing to consider
stipulations that do not relate to Oncor. See Tex. Gov’t Code Ann. § 2001.174(2)(F) (West 2008)
(allowing court to reverse agency’s order if agency’s determinations are “arbitrary or capricious or
characterized by abuse of discretion or clearly unwarranted exercise of discretion”); Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985) (explaining that action is abuse
of discretion if it occurs without reference to any guiding rules or principles or is arbitrary or
unreasonable).
16
(West 2005) (explaining that when construing statutes, court may consider legislative history).
Subsection 39.262(o) was enacted by house bill 624 in 2007. Act of May 23, 2007, 80th Leg., R.S.,
ch. 1186, § 1, 2005 Tex. Gen. Laws 4049, 4049. That same year, a competing bill, senate bill 482,
was also proposed and covered many of the same topics addressed by house bill 624. Ultimately,
senate bill 482 did not pass, but it contained a provision that was identical to that of subsection
39.262(o) with the exception of the section numbers. Compare Tex. Util. Code Ann. § 39.262(o),
with Conf. Comm. Rep’t, S.B. 482, 80th Leg., R.S., at p. 24 (May 20, 2007); see Conf. Comm.
Rep’t, S.B. 482, 80th Leg., R.S., Section-by-Section Analysis, at p. 16. When discussing the breadth
of the enforcement power bestowed by senate bill 482, representative Miller explained that the
proposed amendments only dealt with “regulated industries, which are the transmission lines” and
do “not touch generation [or] retail.” H.J. of Tex., 80th Leg., R.S. 1866 (2007). Further, Miller
confirmed that the amendment did not “impact competitive companies.” Id.5
5
Although we generally recognize that courts should be wary of using the legislative history
for statutes that were not enacted in order to divine the meaning of a statutory provision that actually
became law, see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442-43 (Tex. 2009), we
believe that the legislative history for senate bill 482 is noteworthy in this case given that the relevant
statutory language proposed in senate bill 482 is identical to the language enacted and codified into
subsection 39.262(o), compare Conf. Comm. Rep’t, S.B. 482, 80th Leg., R.S., at p. 24 (May 20,
2007), with Tex. Util. Code Ann. § 39.262(o).
In its reply brief, Nucor refers to the summary provided by the Texas Legislative Council as
support for its broader interpretation of subsection 39.262(o). See Texas Legislative Council,
Summary of Enactments, 80th Leg., R.S., at 432 (2007); see also Tex. Gov’t Code Ann. § 323.001
(West 2005) (specifying who members of council are). In that summary, the Council wrote that
house bill 624 authorizes the Commission “to enforce” a “stipulation, representation, or
commitment” filed by an electric utility, transmission-and-distribution utility, or “acquisition or
merger party.” Summary of Enactments, 80th Leg., R.S., at 432. After referring to this language,
Nucor urges that the language in the summary demonstrates that the legislature intended to make all
stipulations filed be subject to enforcement by the Commission regardless of whether the stipulations
17
Morever, we cannot agree with Nucor’s assertion that the Commission’s interpretation
renders subsection 39.262(o) a functional nullity. Although it is true that the Commission’s
interpretation of the statutes at issue more sharply limits the Commission’s authority to review and
enforce stipulations than the interpretation offered by Nucor, that fact does not render subsection
39.262(o) a nullity. Further, prior to the enactment of subsection 39.262(o), the Commission had
no express statutory authority to enforce stipulations filed as part of a notification of a proposed
transaction under section 14.101. In fact, in reviewing a filing under section 14.101, the Commission
is only explicitly permitted to “disallow the effect of the transaction if the transaction will
unreasonably affect rates or service” and to “take the effect of the transaction into consideration
in ratemaking proceedings.” Tex. Util. Code Ann. § 14.101(c). However, subsection 39.262(o)
granted the Commission the additional authority to enforce stipulations made as part of a filing under
section 14.101. Id. § 39.262(o).
Furthermore, although Nucor correctly points out that the Commission’s
interpretation shields portions of the transaction pertaining to affiliated companies from oversight
by the Commission, in light of the fact that the affiliated companies are no longer subject to
regulation by the Commission, we cannot agree with Nucor’s assertion that the Commission’s
interpretation somehow improperly elevated Texas Energy’s private interests over that of the public.6
directly affect a regulated utility. Although the report does not specify whether a stipulation must
directly affect a regulated utility to be enforceable, the report does not explicitly contradict the
Commission’s interpretation either.
6
As discussed previously, in addition to enacting subsection 39.262(o), the legislature also
added other subsections to section 39.262 but limited the applicability of those subsections to
transactions occurring after the one at issue in this case. See Tex. Util. Code Ann. § 39.262(l), (m).
One of those new subsections—subsection 39.262(m)—provides factors for the Commission to
18
Because we conclude that the Commission’s construction of subsection 39.262(o) is
reasonable and consistent with the plain language of that statute as well as the statutes deregulating
the electric industry, we hold that the trial court properly upheld the Commission’s construction.
Accordingly, we overrule Nucor’s first issue on appeal.
The Commission’s Limitations on Discovery and the Admission of Testimony
In its second issue, Nucor argues that various evidentiary rulings by the Commission
denied it the right to a full hearing and violated its due process rights and its right to equal protection
under the law. See U.S. Const. amend. XIV, § 1; Tex. Const. art. I, §§ 3, 19. When reviewing an
agency’s rulings on the admission or exclusion of evidence, appellate courts apply an abuse-of-
discretion standard. Texas Dep’t of Pub. Safety v. Nordin, 971 S.W.2d 90, 93 (Tex. App.—Houston
[14th Dist.] 1998, no pet.); see Tex. Gov’t Code Ann. § 2001.174(2)(F) (West 2008) (stating that
courts may reverse agency order under substantial-evidence standard when order is “arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion”).
Under this standard, an agency abuses its discretion if it acts without reference to any guiding rules
consider when deciding whether a proposed transaction is in the public interest. Although that
subsection does not apply to the transaction here, the factors provide some insight regarding what
the legislature intended the Commission to consider after deregulation. It is worth noting that the
legislature directed the Commission to consider whether “the transaction will adversely affect the
reliability of service, availability of service, or cost of service of the . . . transmission and
distribution utility.” Id. § 39.262(m) (emphasis added). Further, although the provision also allows
the Commission to consider those effects on an “electric utility,” the definition of electric utility does
not include power-generation companies or retail-electric providers that were unbundled from a
formerly integrated utility. See id. § 31.002(6), (10), (17) (West 2007) (defining electric utility,
power-generation company, and retail-electric provider). Accordingly, the legislature has limited
the factors to be considered, and this limitation is consistent with the Commission’s construction of
subsection 39.262(o) as applied to transactions filed under section 14.101.
19
and principles or if its actions are arbitrary or unreasonable. See City of San Benito v. Rio Grande
Valley Gas Co., 109 S.W.3d 750, 757 (Tex. 2003).
First, Nucor challenges the Commission’s order denying several of its discovery
requests. See 16 Tex. Admin. Code § 22.141 (2011) (setting scope and forms of discovery). Those
requests related to the four commitments that were originally filed by Texas Energy and that did not
relate to Oncor (the public utility). For that reason, the Commission determined that the discovery
requests were beyond the scope of the proceeding. See id. (stating that parties may obtain discovery
on matters “relevant to the subject matter in the proceeding” unless matters are privileged or
exempted under rules of evidence or civil procedure).
Second, Nucor disputes the Commission’s order striking parts of Dennis W. Goins’s
testimony. Nucor had previously filed testimony from Goins that addressed, among other things,
Oncor’s affiliates, the four commitments discussed previously, and the scope of subsection 39.262(o).
For that reason, Oncor filed a motion to strike parts of Goins’s testimony from Nucor’s filings, and
the Commission granted the motion in part and struck various portions of the testimony.
As discussed above, the Commission determined that the governing statutes only
authorized the Commission to review and enforce stipulations that bear upon a regulated utility, and
we concluded that the Commission’s construction is reasonable, consistent with the governing
statutory scheme, and therefore, entitled to deference. In light of that determination, we cannot
conclude that the Commission abused its discretion by denying Nucor’s discovery requests for
information that did not pertain to Oncor or by striking testimony that also did not address
Oncor. See Tex. Gov’t Code Ann. § 2001.051 (West 2008) (stating that party in contested case is
20
entitled to opportunity to present evidence on issues “involved in the case”); Tex. Util. Code Ann.
§ 14.054(b)(1) (West 2007) (addressing settlements of contested cases and saying that parties are
entitled to hearing “on issues that remain in dispute”). In fact, Nucor essentially conceded in its
reply brief that this portion of its second issue is dependent on a determination that the Commission
improperly narrowed the scope of its review.
In its second issue, Nucor also criticizes another decision by the Commission that
limited other testimony that Nucor sought to introduce. As mentioned before, several parties in
addition to Nucor originally objected to the proposed acquisition of Oncor. The Commission Staff
also initially objected to the proposed transaction. When the parties and the Commission Staff
objected, they filed testimony from various witnesses contending that the proposed transaction
was not in the public interest. Under Commission rules, testimony from expert witnesses must be
pre-filed, but the testimony is not admitted into the record until it is offered by a witness and until
the witness testifies that the “testimony is a true and accurate representation of what the testimony
would be if the testimony were to be given orally at the time the written testimony is offered
into evidence.” 16 Tex. Admin. Code § 22.225 (a)-(b) (2011). Although the testimony at issue was
pre-filed with the Commission, it was not admitted into the administrative record. After Texas Energy
agreed to modify the stipulations that it originally proposed in order to address some of the concerns
of the objecting parties, the Commission Staff and many of the parties that originally objected to the
acquisition changed their minds and endorsed the proposed transaction.
Because Nucor was concerned that some of the previously objecting parties might
withdraw the testimony that they had previously filed, Nucor asked the Commission to inquire
21
whether the parties intended to have their previously filed testimony offered into evidence. The
Commission issued an order asking all intervening parties as well as the Commission Staff to
confirm “whether their previously filed direct testimony will be offered into evidence.” After the
order was issued, Nucor submitted its proposed testimony, including Goins’s testimony. Goins’s
proposed testimony partially relied on the testimony of a Commission Staff witness, Dr. Craig Roach,
and a witness for Texas Industrial Energy Consumers (“Texas Industrial”), Jeffry Pollock, that had
been filed prior to Texas Energy’s modifications. Nucor also attached as an exhibit to Goins’s
testimony a copy of Roach’s testimony. However, after Nucor filed its testimony, the Commission
Staff and Texas Industrial elected to withdraw the testimony by Roach and Pollock that they had
previously submitted.
On appeal, Nucor contends that the Commission erred by allowing the Commission
Staff and Texas Industrial to withdraw the previously filed testimony of Roach and Pollock and
also asserts that it was error to allow the Commission Staff and Texas Industrial to withdraw
their testimony after having the opportunity to review the testimony that Nucor filed. Under the
Commission’s rules, the only express prohibition on the ability to withdraw evidence during
proceedings before the Commission limits the ability of an individual to withdraw evidence after
it has been admitted into the record. 16 Tex. Admin. Code 22.225(e) (2011) (stating that party
may withdraw evidence after it has been admitted into record only by agreement of all parties to
proceeding). As mentioned above, although the testimony at issue was pre-filed with the Commission,
both the Commission Staff and Texas Industrial withdrew their pre-filed testimonies before they
were admitted into the record. See id. § 22.225(a)-(b). Nucor has not referred us to any rule, statute,
22
or case law that explicitly prohibits the Commission from allowing individuals to withdraw proposed
testimony before it is admitted into the record. It is also worth noting that Nucor has not referred us
to any request that it made to the Commission after the parties withdrew their testimony that asked
for an extension of time to file or to modify its testimony in response to the withdrawal.
Furthermore, as described previously, the pre-filed testimony was initially offered
to show that the proposed transaction was not in the public interest, and the Commission
authorized the withdrawal after Texas Energy and Oncor made significant modifications to the
proposed transaction. Moreover, as a result of those modifications, neither Texas Industrial nor the
Commission Staff continued to believe that the transaction was against the public interest. In fact,
they endorsed the modified transaction.
In light of the above, including the changes made to the stipulation, we cannot conclude
that the Commission abused its discretion by allowing the Commission Staff and Texas Industrial
to withdraw their previously filed testimony.
After Texas Industrial and the Commission Staff withdrew the testimony of Roach
and Pollock, Texas Energy and Oncor filed a motion to strike the portions of Goins’s proposed
testimony that discussed and extensively quoted from the withdrawn testimony as well as the
exhibit containing Roach’s testimony. Specifically, Texas Energy and Oncor argued that because
the testimony of Roach and Pollock had been withdrawn, the portions of Goins’s testimony quoting
and referring to their testimony as well as the exhibit constituted impermissible hearsay. See Tex.
Gov’t Code Ann. § 2001.081 (West 2008) (stating that rules of evidence apply to hearings before
Commission); Tex. Admin. Code § 22.221 (2011) (same). In other words, Texas Energy and Oncor
23
stated that because those pages “simply restate[d] testimony by” witnesses whose testimony had been
withdrawn, “Goins’ restatement of their testimony is hearsay—an out of court statement offered to
prove the truth of the matter asserted.” See Tex. R. Evid. 801(d) (defining hearsay as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted”). After reviewing the motion, the Commission granted the
motion in part and struck all of the testimony by Goins that discussed or quoted the testimony of
Roach and Pollock as well as the exhibit containing Roach’s testimony.7
On appeal, in addition to challenging the Commission’s decision to allow the
Commission Staff and Texas Industrial to withdraw the testimony of Roach and Pollock, Nucor also
challenges the Commission’s decision to strike the portion of Goins’s testimony that discussed or
quoted the withdrawn testimony as well as the exhibit containing Roach’s testimony.
In contesting the Commission’s ruling, Nucor alleges that the portions of
Goins’s testimony quoting and summarizing the testimony of Roach and Pollock as well as the
accompanying exhibit are either not hearsay or fall within an exception to hearsay. First, Nucor
contends that they are admissions by party-opponents and, therefore, are not hearsay by definition.
7
On appeal, Nucor contends that the Commission erred by striking portions of Goins’s
testimony without setting out the reasons why the testimony should be removed. Although Nucor
correctly points out that the ordering paragraph does not explicitly say why portions of Goins’s
testimony were stricken, Texas Energy and Oncor’s motion provided only one basis for the removal
of the testimony at issue. In particular, they urged that nearly all of the testimony appearing on pages
eight through eleven as well as the entirety of the accompanying exhibit was hearsay. Moreover, the
Commission summarized in its order the hearsay arguments made by Texas Energy and Oncor
and the responsive arguments made by Nucor and then stated that it was striking the testimony of
Goins “[a]fter reviewing the pleadings” by the parties. Accordingly, we cannot agree with Nucor’s
assertion that the Commission’s order was improper because it provided no basis for the exclusion.
24
See id. R. 801(e)(2) (setting out circumstances in which statement may be admitted as admission by
party-opponent).
However, we believe that Nucor’s reliance on the rule addressing statements by
party-opponents is misplaced. That rule, by its terms, applies only to admissions by a party to
the proceeding. Id. The Commission was the adjudicative body with which Nucor sought to file
testimony, not a party to the proceeding. Accordingly, the Commission could reasonably have
concluded that its Staff did not qualify as a “party” to that proceeding as that term is used in the rule
governing admissions by party-opponents. Accordingly, the Commission could have determined
that the testimony originally proposed by the Commission Staff and later withdrawn could not be
admitted as an admission by a party-opponent.
For different reasons, we also believe that Nucor’s reliance on the rule as support for
the admission of testimony previously filed by Texas Industrial is equally misplaced. At the time
that Texas Industrial initially offered the testimony, the interests of Texas Industrial and Nucor were
aligned because they each opposed the proposed transaction. Moreover, after Texas Industrial
initially filed the proposed testimony of Pollock, Texas Industrial entered into the agreed stipulation
that settled all of its issues pertaining to the proposed transaction. That settlement effectively
ended Texas Industrial’s participation in the case. Although Texas Industrial still filed a brief and
participated in the hearings after entering into the stipulation, its primary involvement in the case
was limited to demonstrating that it was now in favor of the transaction and stating its reasons
for no longer contesting the transaction. For these reasons, we believe that the Commission could
25
reasonably have determined that the testimony originally proposed by Texas Industrial and then
withdrawn was not admissible as an admission by a party-opponent in the case.
As mentioned above, Nucor also contends that portions of Goins’s testimony as well
as the accompanying exhibit were admissible under an exception to the hearsay rule. Specifically,
Nucor contends that the parts of Goins’s testimony discussing and quoting the Commission Staff’s
witness (Roach) as well as the exhibit containing Roach’s testimony were admissible as public
records. Id. R. 803(8)(C). The public-record exception provides, in relevant part, that the following
types of documents are not excluded by the general prohibition against the admission of hearsay:
Records, reports, statements, or data compilations, in any form, of public offices or
agencies setting forth:
(C) in civil cases as to any party . . . , factual findings resulting from
an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of
trustworthiness.
Id.
Nucor contends that the requirements of the rule were met because Roach was paid
by the Commission Staff to prepare testimony and because his testimony “is essentially a report
reflecting his expert opinion and conclusions regarding the underlying transaction.” Further, Nucor
argues that Roach’s testimony regarding the protective measures that should be imposed as part of
the transaction “are factual findings resulting from his investigation, which was conducted pursuant
to instructions given by Staff, under authority granted by law.” Finally, Nucor alleges that the
26
Commission Staff must have considered Roach’s testimony to be trustworthy or else they would
not have retained his services or initially filed the testimony.
However, Nucor has referred to no statute, rule, or case concluding that proposed
testimony from an expert witness who was hired by the Commission Staff qualifies as a public
record. Further, although Roach was hired by the Commission Staff, no showing was made that he
was under the supervision of the Commission Staff when he researched and prepared his testimony.
Cf. Fibreboard Corp. v. Pool, 813 S.W.2d 658, 676 (Tex. App.—Texarkana 1991, writ denied)
(stating that rule 803(8) “is applicable only when the exhibit is prepared by public officials or
employees under their supervision in the performance of their official duties,” that “[d]ocuments
prepared by private individuals and filed with a governmental agency are not official documents as
contemplated by Rule 803(8),” and that even if individual preparing document is under contract with
agency, document is not public record if individual preparing document was not under supervision
of public official). In addition, Nucor has provided no support for the proposition that a hired
expert’s proposed testimony could qualify as “factual findings resulting from an investigation made
pursuant to authority granted by law.” Although the Commission Staff hired Roach to prepare
testimony, that does not automatically render his review of the proposed transaction an investigation
performed under “authority granted by law.”
Finally, we have been unable to find any support for the idea that the mere filing of
proposed testimony renders the testimony a public record under rule 803(8). The absence of support
is even more compelling in a case like this where the testimony was pre-filed but was not admitted
into the record before it was withdrawn. See 16 Tex. Admin. Code 22.225(a)-(b).
27
In light of the preceding, we cannot conclude that the Commission abused its
discretion by failing to conclude that the portion of Goins’s testimony at issue as well as the
accompanying affidavit were admissions by party-opponents or that they qualified under the
public-record exception to the hearsay rule. Moreover, because the testimony and exhibit were
offered to prove that Pollock and Roach objected to the proposed transaction, we cannot conclude
that the Commission abused its discretion by striking the testimony and the exhibit as hearsay.
See Tex. R. Evid. 801, 802.8
In a final challenge to the Commission’s decision to strike portions of Goins’s
testimony, Nucor contends that the Commission’s order granting Texas Energy and Oncor’s motion
to strike is arbitrary and unreasonable on its face because the Commission “refused to grant Nucor’s
argument that testimony filed by Oncor [and Texas Energy] should be stricken on the same grounds”
that Oncor and Texas Energy alleged in their motion to strike. Stated differently, Nucor alleges that
because the Commission struck the portion of Goins’s testimony that discussed testimony by other
witnesses that had been withdrawn, the Commission should have also struck the rebuttal testimony
filed by Texas Energy and Oncor that responded to testimony that had been withdrawn.
As support for this argument, Nucor refers to its administrative filing entitled “Nucor
Steel - Texas’ Response to TEF’s and Oncor’s Motion to Strike Supplemental Direct Testimony of
Dr. Dennis W. Goins.” In that filing, Nucor argued that the portions of Goins’s testimony that Texas
8
In its reply brief, Nucor also contends that the stricken parts of Goins’s testimony as well as
the exhibit were admissible “as the deliberate creation of hearsay exceptions by the [Commission]
in permitting parties to withdraw testimony after having had a chance to review Nucor’s testimony
addressing the settlement.” Having reviewed the record, we cannot agree with Nucor’s assertion that
the Commission’s actions could have somehow created a hearsay exception.
28
Energy and Oncor objected to should not be stricken because they were relevant to the subject matter
at issue, were admissible under the public-record exception to hearsay, and were admissions by a
party-opponent. Near the end of the response, Nucor asserted that Texas Energy and Oncor had
“made no attempt to withdraw their own rebuttal testimony, almost all of which was prepared to
refute direct testimony that their co-Signatories have now elected to withdraw.” Further, Nucor
argued that in light of Texas Energy and Oncor’s contentions that portions of Goins’s testimony
should be stricken, the Commission “should strike all of Movants’ rebuttal testimony responding to
witnesses whose testimony will not be offered into evidence at hearing” and then listed the rebuttal
testimony of six witnesses that had been filed by Texas Energy or Oncor.
However, nothing in the title of the filing indicates that Nucor was actually seeking
to strike the testimony of any witness; on the contrary, the title stated that the filing was a
response to Texas Energy and Oncor’s motion to strike testimony. Furthermore, with the exception
of the argument regarding Texas Energy’s and Oncor’s witnesses that was discussed above, the
whole thrust of the filing was that Goins’s testimony should be admitted in its entirety. See In re
Brookshire Grocery Co., 250 S.W.3d 66, 72-73 (Tex. 2008) (explaining that nature of motion and
relief sought are not ascertained by simply looking at motion’s caption and that courts also look to
substance of motion); Finley v. J.C. Pace, Ltd., 4 S.W.3d 319, 320 (Tex. App.—Houston [1st Dist.]
1999, no pet.) (stating that substance of motion is gleaned from body of motion and from “prayer
for relief”). Furthermore, the prayer for relief failed to alternatively plead that in the event that the
Commission grants Texas Energy and Oncor’s motion to strike, the Commission should also
strike the testimony that Nucor highlighted. In fact, the prayer makes no mention of striking any
29
testimony at all. On the contrary, the prayer requested “that [Texas Energy] and [Oncor’s] Motion
to Strike be denied and that Nucor be granted such further relief to which it may be entitled.” In
addition, after the Commission granted Texas Energy and Oncor’s motion to strike, Nucor did not
file its own motion to strike the testimony of the six witnesses listed in its response, nor did it object
when those witnesses’ testimonies were later admitted into the administrative record. Cf. Tex. R.
App. P. 33.1 (explaining that in order to preserve complaint for appellate review, party must make
complaint to trial court in “a timely request, objection, or motion”); see also Kaufman v. Commission
for Lawyer Discipline, 197 S.W.3d 867, 875 (Tex. App.—Corpus Christi 2006, pet. denied) (stating
that party waives right to raise appellate claim if not presented below).
In light of the preceding, we cannot conclude that the Commission’s order granting
Texas Energy and Oncor’s motion to strike was arbitrary or unreasonable or that the Commission
abused its discretion when it issued the order.
Having found no abuse of discretion in any of the rulings that Nucor argued were
erroneous, we cannot conclude that the Commission’s evidentiary rulings deprived Nucor of the right
to a fair hearing or violated Nucor’s constitutional rights to due process and equal protection.
The Commission’s Order Is Supported by Substantial Evidence
In its third issue, Nucor contends that there is no evidence supporting the Commission’s
finding that the non-unanimous stipulation was in the public interest. Nucor groups its various
assertions into three sets of arguments.
In its first set of arguments, Nucor argues that the Commission’s order does not
satisfy the statutory requirements for a final administrative decision because the Commission’s order
30
amounted to no more than bald and conclusory assertions that the transaction and stipulation were
in the public interest. See Tex. Gov’t Code Ann. § 2001.141(b)-(d) (West 2008) (stating that final
decision must contain findings of fact and conclusions of law, that findings may only be based on
evidence and matters that were “officially noticed,” and that findings, “if set forth in statutory
language, must be accompanied by a concise and explicit statement of the underlying facts
supporting the findings”). Further, Nucor contends that the Commission’s order is improper because
it contains no reference to evidence in the record.9
As discussed previously, most of the parties to this administrative proceeding
entered into an agreed stipulation, and the Commission approved that stipulation and incorporated
the stipulation into its order. Various cases have described the manner in which agencies may use
non-unanimous stipulations. See City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231
(Tex. 2001); City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179 (Tex. 1994). In particular,
an administrative agency is required to consider the stipulation “on its merits,” Corpus Christi,
51 S.W.3d at 263 (Owen, J., concurring), and may not simply adopt a non-unanimous stipulation,
City of El Paso, 883 S.W.2d at 183. Stated differently, the incorporation of a non-unanimous
stipulation is proper when an agency makes its own independent finding that the stipulation satisfies
9
Nucor also contends that the order is improper and may not be upheld because it contains
no discussion of the arguments or evidence offered by the non-settling parties. However, Nucor has
referred to no statutory authority or case law for that proposition, and we have been unable to find
any. To the contrary, although we were construing a prior version of the Administrative Procedure
Act, this Court has concluded that the Commission is only required to state findings that support “its
ultimate findings; it is not required to state facts that it rejected and upon which it did not rely in
reaching its conclusions.” See Pedernales Elec. Coop. v. Public Util. Comm’n, 809 S.W.2d 332, 337
(Tex. App.—Austin 1991, no writ).
31
the relevant governing criteria based on substantial evidence in the record as a whole, see id.
(discussing adoption of non-unanimous stipulation in rate context and stating that adoption is proper
if agency makes finding that proposal will establish reasonable rates for area (quoting Mobil Oil
Corp. v. Federal Power Comm’n, 417 U.S. 283, 314 (1974))), and when the agency “provides all
parties, including non-signatories, the opportunity to be heard on the merits of the stipulation,” id.
at 183-84; see 16 Tex. Admin. Code § 22.206 (2011) (providing that when some parties have
reached agreement on some or all issues, each party to proceeding still has right to full hearing on
issues still in dispute).10
As a preliminary matter, we note that Nucor was given the opportunity to be
heard regarding the stipulation and the proposed transaction. Although the Commission limited the
scope of the proceeding in light of its interpretation of section 39.262(o), Nucor fully and actively
participated in the hearings regarding the approval of the transaction, including cross-examining the
chief executive officer of Oncor, and filed expert testimony as well as several exhibits contesting
that the proposed transaction was in the public interest.
10
Nucor also asserts that the Commission’s order cannot be upheld because the Commission
did not make a specific finding that the stipulation “resulted in just and reasonable rates.” As support
for the proposition that the Commission is required to make that type of finding, Nucor refers to City
of El Paso v. Public Utility Commission, 883 S.W.2d 179 (Tex. 1994). That case involved a situation
in which a regulated utility sought to increase its rates. Id. at 181. Because El Paso was a rate case,
the supreme court explained that the Commission was required to independently find that the
stipulation resulted in just and reasonable rates.
However, the present case is not a rate case. Rather, this case involves the acquisition of a
public utility under section 14.101 of the utilities code. See Tex. Util. Code Ann. § 14.101 (West
2007). Accordingly, we cannot conclude that the Commission’s failure to make the specific finding
suggested by Nucor would constitute grounds for overturning the Commission’s order.
32
Having considered whether Nucor was given an opportunity to be heard on the
merits of the stipulation, we now consider whether the Commission made its own finding that the
stipulation satisfied the requirements of section 14.101 and whether that determination is
supported by substantial evidence. At the conclusion of the proceeding, the Commission issued
its order approving the transaction. The order is thirty pages in length and contains 102 findings
of fact and 10 conclusions of law. In the introductory paragraphs of the order, the Commission
concluded that “the merger fulfills the requirements set forth in” section 14.101 and “that the
stipulation reached by certain parties . . . fulfills the standards for approval of non-unanimous
stipulation[s] set forth . . . in City of El Paso v. Public Utility Commission.” Next, the Commission
set out the background of the case, including identifying the various parties involved in the case,
listing the various hearings that were conducted, and summarizing the proposed transaction
and the stipulation entered into by various parties. Following the discussion of the merger, the
Commission directly incorporated all of the commitments made in the non-unanimous stipulation
in findings of fact 43 through 95.
After listing the commitments in the stipulation, the Commission found that
“[b]ased on the record evidence, the terms of the stipulation reached by certain parties in this
docket are reasonable” and that “the stipulation reached by certain parties in this docket is in
the public interest.” Then, the Commission made findings specific to the requirements from
subsection 14.101(b). See Tex. Util. Code Ann. § 14.101(b). Although the Commission concluded
that several of the factors listed in subsection 14.101 did not apply because “the merger does not
33
involve the sale of a utility’s assets or a merger of operating utilities,”11 see id. § 14.101(b)(1), (3),
the Commission made findings regarding the remaining factors. Specifically, the Commission
found as follows:
98. Based upon the record evidence and the commitments offered by Oncor, the
merger will not adversely affect the health or safety of Oncor’s customers or
employees.
99. No party presented evidence to rebut [Texas Energy]’s position that the merger
will not result in the transfer of jobs of citizens of this state to workers domiciled out
of this state.
100. Based upon the record evidence and the commitment offered by Oncor relative
to specific performance and customer service standards, the merger will not result in
a decline in service.
...
102. The merger, coupled with the terms of the stipulation, as amended, is in the
public interest.
See id. § 14.101(b)(2), (4). The Commission also found that “[b]ased upon the commitment by
[Texas Energy] and Oncor that Oncor will not seek to include merger costs in future rate requests,
the merger will not result in Texas ratepayers bearing merger-related costs unrelated to the
corresponding benefits to Texas ratepayers.”
At the end of the order, the Commission concluded that the “merger, coupled with
the terms of the stipulation, as amended, meet the requirements set forth in” section 14.101 “to
11
We note that Nucor makes no specific challenge to the Commission’s determination
that the provisions in subsection 14.101(b) pertaining to the value of the utility’s assets and the
consideration offered under the transaction had no applicability to the public-interest analysis at
issue.
34
support a public interest finding”; that the “stipulation, as amended, is in the public interest”;
and that the “stipulation, as amended, satisfies all of the Commission’s standards for review of a
non-unanimous stipulation.”
The findings underlying the Commission’s public-interest determination are
supported by substantial evidence in the record. A party challenging an order by the Commission
“bears the burden of overcoming a presumption that the Commission’s findings are supported
by substantial evidence.” Nucor Steel v. Public Util. Comm’n, 168 S.W.3d 260, 267 (Tex.
App.—Austin 2005, no pet.). When determining whether an agency’s actions are supported by
substantial evidence, courts are prohibited from substituting their judgment for the Commission’s
“as to the weight of the evidence on questions committed to agency discretion.” Cities of Abilene,
San Angelo, & Vernon v. Public Util. Comm’n, 146 S.W.3d 742, 748 (Tex. App.—Austin 2004, no
pet.) (citing Tex. Gov’t Code Ann. § 2001.174 (West 2008)); see also Tex. Util. Code Ann. § 15.001
(stating that judicial review of agency action is under substantial-evidence standard); Tex. Gov’t
Code Ann. § 2001.174(2) (allowing court to reverse agency determination if it is not supported by
substantial evidence). In making this determination, courts are not asked to verify whether “the
agency reached the correct conclusion, but whether some reasonable basis exists in the record for
the agency’s action.” Cities of Abilene, San Angelo, & Vernon, 146 S.W.3d at 748. In fact, the
evidence may actually preponderate against the Commission’s finding and be upheld as long as
there is enough evidence to suggest that the Commission’s “determination was within the bounds
of reasonableness.” Id.
Several witnesses testified that the proposed transaction was in the public interest.
For example, Dr. William Avera, Texas Energy’s witness, testified that the terms of the stipulation
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“ensure Oncor’s financial independence with several ring-fencing provisions and commit [Texas
Energy] to maintaining Oncor’s capital structure and limiting its embedded debt cost.” Furthermore,
Avera clarified that the ring-fencing portions of the stipulation isolated Oncor from the financial
risks or expenses of its affiliates and “ensures that the risk” from affiliates “does not negatively
impact the financial viability of the utility.” In addition, Avera explained that the terms of the
stipulation also “ensure Oncor’s operational independence” and “preserve Oncor’s financial
independence.” Then, Avera related that “[b]ecause Oncor’s operations will not be directly affected,
the merger does not threaten the health or safety of customers or employees, jobs in Texas, or quality
of service.” Additionally, Avera explained that as a result of the stipulation, Texas Energy “will
expend substantial funds on demand-side management and energy efficiency programs.” Avera
clarified that the demand-side-management expenditures will be $200 million “over the amount
included in Oncor’s rates.” Further, Avera testified that the stipulation requires Oncor to “make
capital expenditures on its traditional system . . . during the next five years.” Moreover, Avera stated
that the stipulation “establishes detailed reliability and performance standards” that will be effective
for five years after the transaction and that “Oncor also agreed to customer service metrics for
maintaining street lights and handling customer service requests.”
Finally, Avera explained that the stipulation provided additional benefits to the public
that were “beyond the Commission’s authority to order.” In particular, Avera referenced Oncor
agreeing to issue a $72 million credit to its customers as well as agreeing to not seek recovery for
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various expenses in future rate cases, including a $35 million write-off to Oncor’s storm reserve and
a $20.9 million write-off resulting from the restructuring of Oncor’s regulated assets.12
12
Throughout its first and third issues, Nucor complains that although the Commission’s
interpretation of the governing statutes limited its ability to consider or enforce commitments
to those that directly related to Oncor, the Commission in its public-interest analysis approved
stipulations made by “Oncor’s unregulated affiliates and unregulated third party market participants.”
Given that the Commission’s construction prohibited Nucor from introducing evidence regarding
effects of the transaction beyond those relating to Oncor, Nucor insists that the Commission erred
by including commitments relating to unregulated companies. Moreover, Nucor argues that “under
the Commission’s reading of the law, there is no way to enforce these commitments” and that the
allegedly problematic commitments may be disregarded “without penalty.”
The commitments Nucor is referring to are the promise to spend $200 million on demand-
side management and the $72 million credit Oncor agreed to give to its customers. Specifically
regarding the credit, Oncor promised to give the credit to its retail-electric-provider customers.
Under the stipulation, the retail providers are required to pass the credit on to their retail customers.
In challenging the propriety of this stipulation, Nucor asserts that the Commission will be unable to
enforce the commitment because it depends on the actions of unregulated companies. Admittedly,
although we need not make a final determination regarding the issue, we do note that based on the
Commission’s construction, it is not entirely clear that the Commission would be able to force the
unregulated companies to pass the credit on to their customers. However, the Commission would
unquestionably be able to enforce the commitment as it relates to the obligations imposed on Oncor.
See Tex. Util. Code Ann. § 39.262(o); see also id. § 14.101(c) (authorizing Commission to take “the
effect of the transaction into consideration in ratemaking proceedings”). For that reason, we cannot
agree with Nucor’s assertion that the Commission’s inclusion of this commitment in its order was
somehow improper.
Under the demand-side-management commitment, Texas Energy agreed to fund $200 million
for demand-side-management programs. Further, the commitment required Oncor, through the
funding given by Texas Energy, to spend $100 million on demand-side-management issues. The
commitment also extensively listed the manner in which Oncor was required to spend the money,
including using $16 million for low-income-customer programs. Finally, the commitment explained
that Texas Energy would be giving the other $100 million to Texas Energy “affiliates other than
Oncor.” Other than mentioning Texas Energy’s decision to provide funding for companies other
than Oncor, the stipulation and the Commission’s order make no further reference to that funding.
Accordingly, we cannot conclude that the mere mention of this promise, without more, was
reversible error or could have somehow invalidated the Commission’s limited construction of the
governing statutes.
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Another witness for Texas Energy, Frederick Goltz, similarly testified that the
stipulation and transaction were “undoubtedly consistent with the public interest.” As with Avera,
Goltz explained that the stipulation is designed “to provide reasonable assurance that Oncor will
function as a separate company from [its] affiliates and that Oncor will be protected from any
possible negative impacts from financial difficulties at those affiliates.” Goltz also testified that as
a result of the stipulation, Oncor agreed to provide the rate credit discussed above and to not seek
to recoup the expenses associated with the transaction through its rates. Further, Goltz stated that
Oncor’s customers will receive the benefit of improvements to Oncor’s efficiency and of additional
demand-side-management spending and that under the stipulation, Oncor is required to either
maintain or improve its transmission-and-distribution system. In addition, Goltz related that the
transaction will not adversely affect any of Oncor’s customers or employees because “Oncor will
be managed no differently after the closing of the [t]ransaction” and that “Oncor has historically
provided safe, reliable service.” Additionally, Goltz clarified that the transaction will not result in
the transfer of jobs to workers out of Texas and “will not result in a decline of Oncor’s services.”
In addition to the testimony of Texas Energy’s witnesses, Oncor also offered testimony
from its chief executive officer, Robert Shapard. Shapard agreed that the transaction was “in the
public interest in accordance with [subsection] 14.101(b) and considering the factors identified
therein.” In his testimony, Shapard agreed with the portions of Goltz’s testimony regarding how the
requirements of the stipulation separate Oncor from its affiliates and protect Oncor from any
negative impacts stemming from one of its affiliate’s financial problems. Shapard also discussed
the benefits to Oncor’s customers, including the credit, the additional money spent on demand-side
38
management and energy-efficiency programs, and the fees that Oncor agreed not to recover in its
next rate case. Furthermore, Shapard explained that the stipulation requires Oncor to make significant
investments in its transmission-and-distribution system, which Shapard characterized as a “major
concession by [Texas Energy] and Oncor.” Shapard also related that under the stipulation, Oncor
is required to meet certain “aggressive” reliability standards that will lead to rebate payments “if the
standards are not achieved.” Finally, Shapard testified that the transaction will not result in a decline
in service to Oncor’s customers due to the capital-investment commitments under the stipulation as
well as the additional reliability standards that will be applied and that because Oncor “will be
managed no differently after the closing of the [t]ransaction,” the acquisition will not affect the
health or safety of its employees.
A witness for the Commission Staff, Darryl Tietjen, also testified that the transaction
was in the public interest. He explained that the stipulation represented “an acceptable resolution
of contested issues in this proceeding as well as in Oncor’s current rate proceeding.” In addition,
Tietjen listed various benefits arising from the stipulation, including the investments in demand-side
management, the decision by Oncor to not seek recovery of certain expenses, and the credit that will
be given to Oncor’s customers. Furthermore, Tietjen explained that the stipulation serves the public
interest by providing “certainty on the resolution of a variety of issues, it ensures an outcome that,
in the aggregate, is at least equal to—or, in some instances, possibly better than—what would result
from continued litigation.” Moreover, Tietjen summarized the various commitments that were
designed to keep Oncor independent and to insulate Oncor from any potential negative effects
stemming from one of its affiliates. Tietjen also mentioned the promise by Oncor to adhere to certain
39
reliability standards as well as Oncor’s promise to pay $3.6 billion over the next five years “to
support the traditional Oncor system” and to “ensure Oncor’s adherence to at least the same levels
of capital investment that would have occurred absent the merger transaction.”
In light of the preceding, we must conclude that the Commission considered
the stipulation on its merits, made its own finding that the stipulation satisfied the relevant
statutory requirements, and provided all parties with an opportunity to address the merits of the
stipulation. We must also conclude that the stipulation is supported by substantial evidence in the
record as a whole.
In its second set of arguments, Nucor contends that two of the commitments
contained in the stipulation and that were relied on by the Commission in its determination could
not support the Commission’s conclusion that the proposed transaction was in the public interest.
The first is the one-time $72 million credit offered by Oncor to retail-electric providers that
the providers would then pass on to their retail customers. The Commission found that the credit
represented “a great benefit for Texas retail consumers.” The second involved the $56 million in
write-offs to Oncor’s storm reserve and from restructuring fees that Oncor promised not to include
in its future rate case.
When attacking the propriety of the credit, Nucor asserts that none of the settling
parties provided any testimony demonstrating that the amount of the credit, $72 million, was
adequate. In making this contention, Nucor refers to the fact that the credit was given in exchange
for the Commission’s decision to dismiss Oncor’s then-pending rate case. Essentially, Nucor theorizes
that had the rate case continued, the Commission might have discovered that Oncor’s excess
40
revenue well exceeded the amount offered as a credit and that without evidence of Oncor’s cost of
service, the Commission was unable to evaluate the reasonableness of the credit.13 Regarding the
write-offs, Nucor contends that the benefit of the write-offs is illusory because there is no guarantee
or evidence “that Oncor would have requested recovery of any of these expenses in its 2008 rate
case, or that the Commission would have granted that request.”
Rather than challenge the evidentiary support for the stipulation as a whole, Nucor
posits the concept that reviewing courts may only affirm a Commission’s order approving a non-
unanimous stipulation if each term of a stipulation is individually supported by substantial evidence.
Even assuming that Nucor’s assertion is correct, its challenge to these particular findings still fails.
As summarized above, various witnesses testified that the credit and the write-offs represented a
benefit to Oncor’s customers and were in the public interest. Moreover, although Nucor correctly
points out that Oncor’s rate case was dismissed prior to a final determination regarding whether and
to what amount Oncor had accumulated excess revenue, that uncertainty does not necessitate a
conclusion that the finding regarding the $72 million credit was erroneous. Similarly, the fact that
the dismissal of the rate case foreclosed the possibility of finding out whether the Commission would
have authorized recoveries during the rate case for the write-offs that Oncor agreed to make under
the stipulation does not render the findings pertaining to those write-offs improper. Undeniably, the
13
In this set of arguments, Nucor again challenges the Commission’s decision to not address
or include in its order the evidence that Nucor offered regarding the stipulation. In particular, Nucor
contends that the Commission should have addressed the testimony by Goins stating that the credit
was tied to the Commission’s decision to dismiss Oncor’s then-pending rate case that was initiated
when the Commission Staff estimated that Oncor’s rates led to $80 million in excess revenue. In
footnote nine, we addressed similar arguments made by Nucor, and for those same reasons, we
reject this challenge as well.
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stipulation, by its nature as a settlement agreement, foreclosed knowledge of the ultimate outcome
had the parties fully litigated the various claims, but Nucor’s challenges ignore the actual benefits
obtained from the settlement, including a speedier resolution of the issues and recovery without
the need for and added expense of continued and protracted litigation. Moreover, although Nucor
correctly points out that the Commission may have ultimately forbidden recovery of the expenses
that were written off under the stipulation or concluded that Oncor had obtained excess revenues
well beyond $72 million, the Commission could have as easily made the opposite determinations.
In other words, the stipulation might have given a benefit that otherwise would not have been given
had the rate case continued.
In its final set of arguments, Nucor argues that the write-offs had no bearing on
whether the proposed transaction was in the public interest. In other words, Nucor argues that the
write-offs related to Oncor’s rate case but were not relevant to the proposed acquisition of Oncor.14
Although those write-offs pertained to Oncor’s then-pending rate case, we can find
14
Although it did not contest the following findings in its opening brief, in its reply brief,
Nucor seems to challenge several findings regarding steps that were taken to “minimize any
deleterious impact the merger might otherwise have on Oncor.” Specifically, Nucor contends that
those commitments in the stipulation “do absolutely nothing to determine whether with those
measures and other elements the merger/acquisition is in the public interest.”
As discussed earlier, the legislature provided factors for the Commission to consider when
performing a public-interest analysis, including whether a proposed transaction will result in a
decline in service and, more generally, whether the acquisition “is consistent with the public
interest.” See Tex. Util. Code Ann. § 14.101(b)(1)-(4). Given this language, we cannot conclude
that the Commission’s decision to consider commitments designed to protect the public utility from
potential financial ruin was unreasonable or inconsistent with the plain language of the governing
statutes. See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619,
625 (Tex. 2011).
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no support for the proposition that a concession relating to a rate case could not be included in a
stipulation filed under section 14.101 or in an order by the Commission endorsing the stipulation.
This seems particularly true given that the Commission is authorized under subsection 14.101(c) to
consider the effects of a proposed transaction in a utility’s “ratemaking proceedings.” Tex. Util.
Code Ann. § 14.101(c).
For all the reasons previously given, we overrule Nucor’s third issue on appeal.
CONCLUSION
Having overruled all three of Nucor’s issues on appeal, we affirm the judgment of the
district court.
__________________________________________
David Puryear, Justice
Before Justices Puryear, Pemberton and Rose
Affirmed
Filed: March 15, 2012
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