Harris County Hospital District v. Public Utility Commission of Texas

ACCEPTED
03-15-00386-CV
6707167
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/28/2015 3:44:57 PM
JEFFREY D. KYLE
CLERK
No. 03-15-00386-CV

FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS
8/28/2015 3:44:57 PM
AT AUSTIN JEFFREY D. KYLE
Clerk

HARRIS COUNTY HOSPITAL DISTRICT,
Appellant
v.
PUBLIC UTILITY COMMISSION OF TEXAS,
Appellee

Appealed from the 250th District Court
of Travis County, Texas
Trial Court Cause No. D-1-GN-09-002116

APPELLANT’S BRIEF

VINCE RYAN
Harris County Attorney
BRUCE S. POWERS
Assistant County Attorney
State Bar No. 16215500
1019 Congress, 15th Floor
Houston, Texas 77002
(713) 274-5144 (telephone)
(713) 755-8924 (facsimile)
bruce.powers@cao.hctx.net
ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED
 IDENTITY OF PARTIES AND COUNSEL

The names of all parties and counsel to this appeal are:

Plaintiff/Appellant: Counsel for Plaintiff/Appellant:

Harris County Hospital District Bruce S. Powers
Assistant County Attorney
Randall Raymond Smidt
Assistant County Attorney
1019 Congress, 15th Floor
Houston, Texas 77002

Trial Counsel for Plaintiff/Appellant:

Thomas R. Bray
1431 Wirt Road, Suite 140
Houston, Texas 77055

Edward J. Hennessy
2900 Weslayan, Suite 550
Houston, Texas 77027

Defendant/Appellee: Counsel for Defendant/Appellee:

Public Utility Commission of Texas Elizabeth R. B. Sterling
Assistant Attorney General
Environmental Protection Division
Office of the Attorney General
P.O. Box 12548, MC-066
Austin, Texas 78711-2548

ii
 TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................................... ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE .................................................................................. 1

ISSUES PRESENTED............................................................................................... 2

STATEMENT OF FACTS ........................................................................................ 3

SUMMARY OF THE ARGUMENT ........................................................................ 5

ARGUMENT ............................................................................................................. 7

ISSUE NO. 1 .............................................................................................................. 7

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
FAILING TO CONSIDER THE ISSUE OF FEES FOR THE HOSPITAL
DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN
RENDERING JUDGMENT DENYING SUCH FEES WITHOUT GIVING
THE DISTRICT THE OPPORTUNITY TO PRESENT EVIDENCE ON
THE ISSUE.

ISSUE NO. 2 .............................................................................................................. 7

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THIS
COURT DECLINED THE DISTRICT’S “CLAIMS” UNDER TEXAS
UTILITIES CODE § 15.003 IN THE PREVIOUS APPEAL.

PRAYER .................................................................................................................. 12

CERTIFICATE OF COMPLIANCE ....................................................................... 13

CERTIFICATE OF SERVICE ................................................................................ 14

APPENDIX

iii
 INDEX OF AUTHORITIES

CASES page

Chessher v. Southwestern Bell Telephone Co.,
658 S.W.2d 563 (Tex. 1983)(per curiam) ................................................................ 12

Harris County Hosp. Dist. v. Public Utility Com’n of Texas,
No. 03-10-00647-CV, 2012 WL 2989228, at *8 (Tex. App.―Austin
July 13, 2012, no pet.)(mem. op.) ..................................................................1, 3, 4, 9

International Security Life Ins. Co. v. Spray,
468 S.W.2d 347 (Tex. 1971) ...................................................................................... 9

Jay Petroleum, L.L.C. v. EOG Resources, Inc.,
332 S.W.3d 534 (Tex. App.―Houston [1st Dist.] 2009, pet. denied) ..............10, 11

Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc.,
447 S.W.3d 473 (Tex. App.―Houston [14th Dist.] 2014, no pet.) ......................... 11

Texas Education Agency v. Maxwell,
937 S.W.2d 621 (Tex. App.―Eastland 1997, writ denied) ................................. 9, 10

STATUTES

Tex. Gov’t Code Ann. § 311.016(2) .......................................................................... 8

Tex. Util. Code Ann. § 11.003(16) ........................................................................... 8

Tex. Util. Code Ann. § 11.008 ................................................................................... 8

Tex. Util. Code Ann. §15.003(a) ........................................................................... 7, 8

Tex. Util. Code Ann. §15.003(b) ........................................................................... 8, 9

RULES

Tex. R. App. P. 38.1(g) .............................................................................................. 3
iv
 No. 03-15-00386-CV

IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AT AUSTIN

HARRIS COUNTY HOSPITAL DISTRICT,
Appellant
v.
PUBLIC UTILITY COMMISSION OF TEXAS,
Appellee

Appealed from the 250th District Court
of Travis County, Texas
Trial Court Cause No. D-1-GN-09-002116

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

This is a suit for judicial review of a final order of the Public Utility

Commission of Texas. (CR 3). In a previous appeal this Court reversed a trial

court order affirming the Commission’s order and remanded with instructions that

the case be remanded to the Commission for further proceedings consistent with

this Court’s opinion. Harris County Hosp. Dist. v. Public Utility Com’n of Texas,

No. 03-10-00647-CV, 2012 WL 2989228, at *8 (Tex. App.―Austin July 13, 2012,

1
no pet.)(mem. op.). (CR 71). On remand the trial court signed a final judgment

which reversed the Commission’s order and remanded the case to the Commission

for further proceedings consistent with this Court’s opinion. (CR 148). The

Commission was ordered to pay all costs relating to the appeal and all relief not

specifically granted was denied. (CR 149). The Hospital District’s Motion for

New Trial, which included a Motion to Set Attorney’s Fees and Award Attorney’s

Fees, Expert Witness Fees and other Costs, was denied by operation of law after

the trial court declined the District’s request for an oral hearing. (CR 151, 225).

The Hospital District then perfected this appeal. (CR 292).

ISSUES PRESENTED

ISSUE NO. 1

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

FAILING TO CONSIDER THE ISSUE OF FEES FOR THE HOSPITAL

DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN RENDERING

JUDGMENT DENYING SUCH FEES WITHOUT GIVING THE DISTRICT

THE OPPORTUNITY TO PRESENT EVIDENCE ON THE ISSUE.

ISSUE NO. 2

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THIS

COURT DECLINED THE DISTRICT’S “CLAIMS” UNDER TEXAS

UTILITIES CODE § 15.003 IN THE PREVIOUS APPEAL.

2
 STATEMENT OF FACTS

In the instant case the “facts pertinent to the issues or points presented” all

relate to the procedural history of the case. Tex. R. App. P. 38.1(g). Those facts

are these. The Harris County Hospital District prevailed in the previous appeal of

this proceeding for review. This Court’s mandate in that appeal contained the

following language:

THIS CAUSE came on to be heard on the record of the court below,
and the same being considered, because it is the opinion of this Court
that there was error in the trial court’s judgment: IT IS
THEREFORE considered, adjudged and ordered that the judgment
of the trial court is reversed, and that the cause is remanded to the
trial court with instructions that the case be remanded to the
Commission for further proceedings consistent with this opinion. It
is FURTHER ordered that the appellee pay all costs relating to this
appeal, both in this Court and the court below; and that this decision
be certified below for observance.1

Wherefore, we command you to observe the order of our Court of
Appeals in this behalf and in all things have the order duly
recognized, obeyed, and executed.

(CR 87). The Court’s opinion concluded with the following:

For these reasons, we conclude that the Commission’s finding
that “it was appropriate to limit the amount that AT&T should
refund to the amount of overcharges over the last six and one-half
years, plus interest” and its corollary decision to order a partial
refund to be arbitrary and capricious. See id.; Starr Cnty., 584
S.W.2d at 356. We also conclude that the Commission’s arbitrary
limitation on the recovery period prejudiced substantial rights of
the District. See Tex. Gov’t Code Ann. § 2001.174(2). We sustain
the District’s second and third issues on this basis and need not

1
The Court’s judgment was identically worded. (CR 70).
3
 address the District’s remaining arguments and issues.6 See Tex. R.
App. P. 47.1.

CONCLUSION

Because we conclude that the Commission’s order was
arbitrary and capricious and prejudiced substantial rights of the
District, we reverse the order of the trial court and remand with
instructions that the case be remanded to the Commission for
further proceedings consistent with this opinion.
_____________________________
6
To the extent that the District seeks to have this Court order the
Commission to adopt the ALJ’s proposal for decision and to award
it expert’s fees and attorney’s fees, we decline to do so. See Tex.
Gov’t Code Ann. § 2001.174(2)(West 2008); Tex. Util. Code
Ann. § 15.003 (West 2007); Ford Motor Co. v. Butnaru, 157
S.W.3d 142, 149 (Tex. App.―Austin 2005, no pet.)(“In a suit for
judicial review of an agency action, the reviewing court is
empowered to issue only a general remand when it finds error that
prejudices an appellant’s substantial rights.”).

(CR 84-85).

On remand the Hospital District filed its Motion for Order Remanding

Overbilling Claims to the Public Utility Commission of Texas and its Motion to

Sever Claims for Attorney and Expert Fees and Costs, and to Abate the Severed

Claims. (CR 90, 114). The trial court considered the two motions at a

nonevidentiary hearing on January 22, 2015. On March 27, 2015, the trial court

signed the Final Judgment sub judice, which contains the following finding:

4
 The Court finds that, although the Court of Appeals reversed this
Court’s judgment affirming the Commission’s order, the Court of
Appeals declined the District’s claims under Texas Utilities Code §
15.003 for attorneys and expert witnesses and other costs for the
party’s efforts before the Commission and the court. Therefore,
the Court denies the District’s request to sever that claim into a
different lawsuit.

(CR 149.) The trial court denied all relief which was not specifically granted in

the judgment. (CR 149). As a result, the District’s claim for attorney’s fees and

expert witness fees was denied.

SUMMARY OF THE ARGUMENT

Section 15.003 of the Texas Utilities Code provides that a party represented

by counsel who alleges that existing rates are excessive or that rates prescribed by

the Commission are excessive and who prevails in a proceeding for review is

entitled to recover against the regulation fund reasonable fees for attorneys and

expert witnesses and other costs for the party’s efforts before the Commission and

the court. In this proceeding for review the Hospital District alleged that the “rate”

that was charged by AT&T during a thirteen year period was unjust and

unreasonable and therefore improper and prohibited. The District further alleged

that it is entitled to a refund of the “overbillings” for the entire period of the

“overcharges”. Therefore, when the District prevailed in the previous appeal of

this case, it became “entitled” to recover reasonable fees for attorneys and expert

5
witnesses and other costs. The trial court denied such relief when it signed the

final judgment in this cause.

When this case was remanded to the trial court following the previous

appeal, the Commission argued that any Section 15.003 claim was extinguished in

the appeal. It based this contention on footnote 6 of this Court’s opinion.

However, in footnote 6 the Court did not decline the District’s “claims” under

Texas Utilities Code §15.003. The Court simply declined to award expert’s fees

and attorney’s fees to the extent that the District sought to have the Court, itself, do

so. The issue of fees was simply a matter for the trial court to address in the first

instance. In failing to consider the issue of fees for the District’s attorneys and

expert witness and in rendering judgment denying such fees without giving the

District the opportunity to present evidence on the issue, the trial court clearly

abused its discretion.

The Hospital District submits that the Commission’s contention that nothing

in this Court’s opinion, judgment, or mandate allowed the trial court to consider

the District’s Section 15.003 claim is based on a misinterpretation of the Court’s

rulings. This Court’s reversal of the trial court’s judgment in the previous appeal

necessarily made the claim for attorney’s fees and expert witness fees live again.

Further, the mandate ordered the trial court to certify and observe this Court’s

decision, which necessarily ordered the trial court to consider the now live claim

6
for attorney’s fees and expert witness fees. The trial court’s failure to do so was

contrary to the mandate and was an abuse of discretion.

ARGUMENT

ISSUE NO. 1 (RESTATED)

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN

FAILING TO CONSIDER THE ISSUE OF FEES FOR THE HOSPITAL

DISTRICT’S ATTORNEYS AND EXPERT WITNESS AND IN RENDERING

JUDGMENT DENYING SUCH FEES WITHOUT GIVING THE DISTRICT

THE OPPORTUNITY TO PRESENT EVIDENCE ON THE ISSUE.

ISSUE NO. 2 (RESTATED)

WHETHER THE TRIAL COURT ERRED IN FINDING THAT THIS

COURT DECLINED THE DISTRICT’S “CLAIMS” UNDER TEXAS

UTILITIES CODE § 15.003 IN THE PREVIOUS APPEAL.

ARGUMENT AND AUTHORITIES UNDER ISSUES NO. 1 AND 2

Section 15.003 of the Texas Utilities Code provides that a party represented

by counsel who alleges that existing rates are excessive or that rates prescribed by

the Commission are excessive and who prevails in a proceeding for review is

entitled to recover against the regulation fund reasonable fees for attorneys and

expert witnesses and other costs for the party’s efforts before the Commission and

the court. Tex. Util. Code Ann. §15.003(a). As used in Section 15.003 the term

7
“rate” includes “any compensation, tariff, charge, fare, toll, rental, or classification

that is directly or indirectly demanded, observed, charged, or collected by a public

utility for a service.” Tex. Util. Code Ann. § 11.003(16). Section 11.008 of the

Code provides that Title 2, of which Section 15.003 is a part, “shall be construed

liberally.” Tex. Util. Code Ann. § 11.008.

In this proceeding for review the Hospital District alleged that the “rate” that

was charged by AT&T during a thirteen year period was unjust and unreasonable

and therefore improper and prohibited. The District further alleged that it is

entitled to a refund of the “overbillings” for the entire period of the “overcharges”.

(CR 10). Therefore, when the District prevailed in the previous appeal of this case,

it became “entitled” to recover reasonable fees for attorneys and expert witnesses

and other costs. Tex. Util. Code Ann. § 15.003(a). The statute provides that in

that circumstance the court “shall” set the amount of attorney’s fees awarded. Tex.

Util. Code Ann. §15.003(b).2 Nevertheless, the trial court denied such relief when

it signed the Final Judgment in this cause. (CR 148, 149).

When this case was remanded to the trial court following the previous

appeal, the Commission argued that “[a]ny Section 15.003 claim was extinguished

in the appeal.” It based this contention on footnote 6 of this Court’s opinion. (CR

124). The Commission further argued that nothing in this Court’s opinion,

2
The Legislature’s use of the word “shall” in the Code “imposes a duty.” Tex. Gov’t Code Ann.
§ 311.016(2).
8
judgment or mandate allowed the trial court to consider the District’s Section

15.003 claim. (CR 124). The trial court apparently accepted these arguments

since it expressly found that this Court “declined the District’s claims under Texas

Utilities Code §15.003 for attorneys and expert witnesses and other costs.” (CR

149). However, that was a misinterpretation of footnote 6 of this Court’s opinion.

In footnote 6 the Court did not decline the District’s “claims” under Texas

Utilities Code § 15.003. The Court simply declined to award expert’s fees and

attorney’s fees “to the extent that” the District sought to have the Court, itself, do

so. Certainly, the Court could not initiate such an award, “since this would be the

exercise of original rather than appellate jurisdiction.” International Security Life

Ins. Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971). Declining to exercise a

jurisdiction which the Court did not have did not constitute a ruling on the merits

of the District’s claim. Moreover, since the Court had just determined that the

District should prevail in the proceeding for review, the Court would have had no

reason to deny the District’s entitlement to recover fees under Section 15.003. The

issue of fees was simply a matter for the trial court to address in the first instance.

Tex. Util. Code Ann. §15.003(b). In failing to consider the issue of fees for the

District’s attorneys and expert witness and in rendering judgment denying such

fees without giving the District the opportunity to present evidence on the issue,

the trial court clearly abused its discretion. Compare Texas Education Agency v.

9
Maxwell, 937 S.W.2d 621, 623 (Tex. App.―Eastland 1997, writ denied)(“We hold

that the trial court abused its discretion in failing to consider the issue of attorney’s

fees and in rendering judgment denying attorney’s fees without giving plaintiffs

the opportunity to present evidence on the issue.”)(case brought under 42 U.S.C. §

1983).

The Hospital District submits that the Commission’s contention that nothing

in this Court’s opinion, judgment, or mandate allowed the trial court to consider

the District’s Section 15.003 claim is also based on a misinterpretation of the

Court’s rulings. In that regard, this case is similar to the procedural circumstances

described in Jay Petroleum, L.L.C. v. EOG Resources, Inc., 332 S.W.3d 534 (Tex.

App.―Houston [1st Dist.] 2009, pet. denied). In a prior appeal of that case the

court of appeals had reversed the judgment of the trial court, stating, “The trial

court erred by granting Jay’s motion for final summary judgment on its breach of

contract and conversion claims, and by denying EOG’s motion for partial summary

judgment.” Id. at 537. The court’s mandate stated the following:

“The cause heard today by the Court is an appeal from the judgment
signed by the court below on February 17, 2003. After submitting the
cause and inspecting the record of the court below, it is the opinion of
this Court that there was reversible error in the judgment. It is
therefore CONSIDERED, ADJUDGED, and ORDERED that the
judgment of the court below be in all things reversed and that
judgment be rendered that the partial summary judgment of appellant,
EOG RESOURCES, INC., be granted and that the motion for final
summary judgment by appellee, JAY PETROLEUM, L.L.C., be

10
 denied, and that appellee, JAY PETROLEUM, L.L.C., take nothing
on its claims against appellant, EOG RESOURCES, INC.

It is further ORDERED that the appellee, JAY PETROLEUM, L.L.C.,
pay all costs incurred by reason of this appeal.

It is further ORDERED that this decision be certified below for
observance.”

Id. On remand the trial court granted EOG’s motion for summary judgment and

awarded EOG its attorney’s fees. On the second appeal Jay Petroleum contended

that the mandate did not remand the case to the trial court. However, the court of

appeals said the following:

“The mandate plainly reversed the summary judgment on the counter-
claims, which necessarily made those counterclaims live. Moreover,
the mandate ordered the trial court to certify and observe our decision,
which necessarily ordered the trial court to consider the now live
claims.”

Id. at 540. The court therefore overruled Jay Petroleum’s issues concerning

waiver, res judicata and lack of jurisdiction. Id. at 540-542.

Similarly, in the instant case, this Court’s reversal of the trial court’s

judgment in the previous appeal necessarily made the claim for attorney’s fees and

expert witness fees live again. Further, the mandate ordered the trial court to

certify and observe this Court’s decision, which necessarily ordered the trial court

to consider the now live claim for attorney’s fees and expert witness fees. Id. The

trial court’s failure to do so was contrary to the mandate and was an abuse of

discretion. Southwest Galvanizing, Inc. v. Eagle Fabricators, Inc., 447 S.W.3d
11
473, 478 (Tex. App.―Houston [14th Dist.] 2014, no pet.)(“After this court

directed its mandate to the trial court, the trial court had jurisdiction to enforce our

mandate. The trial court, however, had no discretion but to enforce it; signing an

order contrary to our mandate would be an abuse of discretion.”)(citation omitted).

The trial court denied the District’s claim for attorney’s fees and expert witness

fees sua sponte. The Commission had filed no motion seeking the dismissal of the

claim. The trial court clearly erred in proceeding to the rendition of a final

judgment which summarily denied the requested relief in that circumstance.

Compare Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564

(Tex. 1983)(per curiam)(“It is axiomatic that one may not be granted judgment as a

matter of law on a cause of action not addressed in a summary judgment

proceeding.”).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant Harris County

Hospital District respectfully prays that the portion of the trial court’s judgment

which denied the District’s claim for attorney’s fees and expert witness fees be

reversed and remanded with instructions that the trial court conduct a hearing to

determine the amount of reasonable attorney’s fees and expert witness fees which

should be awarded to the District.

12
 Respectfully submitted,

VINCE RYAN
Harris County Attorney

/s/ Bruce S. Powers
Bruce S. Powers
Assistant County Attorney
State Bar No. 16215500
1019 Congress, 15th Floor
Houston, Texas 77002
(713) 274-5144 (telephone)
(713) 755-8924 (facsimile)
bruce.powers@cao.hctx.net

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this document complies with the

word-count limitations of Tex. R. App. P. 9.4. Relying on the word count of the

computer program used to prepare this document, it contains 2,740 words.

/s/ Bruce S. Powers
Bruce S. Powers
Assistant Harris County Attorney

13
 CERTIFICATE OF SERVICE

I hereby certify that on this the 28th day of August, 2015, a true and correct

copy of the foregoing APPELLANT’S BRIEF was served electronically upon

Defendant Public Utility Commission of Texas’ counsel, Elizabeth R. B. Sterling,

Assistant Attorney General, Environmental Protection Division, Office of the

Attorney General, P.O. Box 12548, MC-066, Austin, Texas 78711-2548.

/s/ Bruce S. Powers
Bruce S. Powers
Assistant County Attorney

14
APPENDIX
 Table of Contents

Tab No. Description

1 Final Judgment

2 Tex. Util. Code Ann. §15.003
 Tab 1
Final Judgment
 Tab 2
Tex. Util. Code Ann. §15.003
§ 15.003. Costs and Attorney's Fees, TX UTIL § 15.003

Vernon's Texas Statutes and Codes Annotated
Utilities Code (Refs & Annos)
Title 2. Public Utility Regulatory Act
Subtitle A. Provisions Applicable to All Utilities
Chapter 15. Judicial Review, Enforcement, and Penalties (Refs & Annos)
Subchapter A. Judicial Review

V.T.C.A., Utilities Code § 15.003

§ 15.003. Costs and Attorney's Fees

Currentness

(a) A party represented by counsel who alleges that existing rates are excessive or that rates
prescribed by the commission are excessive and who prevails in a proceeding for review of a
commission order or decision is entitled in the same action to recover against the regulation fund
reasonable fees for attorneys and expert witnesses and other costs for the party's efforts before the
commission and the court.

(b) The court shall set the amount of attorney's fees awarded under Subsection (a).

(c) If a court finds that an action under Section 15.001 or this section was groundless and brought
in bad faith and for the purpose of harassment, the court may award reasonable attorney's fees to
the defendant public utility.

Credits
Acts 1997, 75th Leg., ch. 166, § 1, eff. Sept. 1, 1997.

V. T. C. A., Utilities Code § 15.003, TX UTIL § 15.003
Current through Chapters effective immediately through Chapter 46 of the 2015 Regular Session
of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1