in Re Electric Reliability Council of Texas, Inc., and William L. Magness

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COURT OF APPEALS REBECA C. MARTINEZ FOURTH COURT OF APPEALS DISTRICT MICHAEL A. CRUZ, CHIEF JUSTICE CADENA-REEVES JUSTICE CENTER CLERK OF COURT PATRICIA O. ALVAREZ 300 DOLOROSA, SUITE 3200 LUZ ELENA D. CHAPA SAN ANTONIO, TEXAS 78205-3037 IRENE RIOS WWW.TXCOURTS.GOV/4THCOA.ASPX TELEPHONE BETH WATKINS (210) 335-2635 LIZA A. RODRIGUEZ LORI I. VALENZUELA FACSIMILE NO. JUSTICES (210) 335-2762 June 24, 2021 Rachel A. Ekery Honorable Solomon Casseb, III ALEXANDER DUBOSE Judge, 288th District Court JEFFERSON & TOWNSEND, LLP Bexar County Courthouse 515 Congress Ave., Suite 2350 100 Dolorosa, 4th Floor Austin, TX 78701 San Antonio, TX 78205 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Lauren A. Valkenaar Nicholas Bacarisse Chasnoff Mungia Valkenaar Pepping Alexander Dubose Jefferson & & Stribling, LLP Townsend 1020 N.E. Loop 410, Suite 150 515 Congress Ave., Suite 2350 San Antonio, TX 78209 Austin, TX 78701 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Ron H. Moss Mukul Kelkar Winstead PC Dentons US LLP 401 Congress Ave Ste 2100 1221 McKinney St., Suite 1900 Austin, TX 78701-3798 Houston, TX 77010-2006 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Barry A. Chasnoff Adrianna Jimenez Chasnoff Mungia Valkenaar Pepping Chasnoff Mungia Valkenaar & Stribling, LLP Pepping & Stribling, LLP 1020 N.E Loop 410, STE. 150 1020 NE Loop 410 Ste 150 San Antonio, TX 78205 San Antonio, TX 78209-2302 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Elliot Clark Glenn A. Ballard, Jr. Winstead PC Dentons US LLP 401 Congress Ave., Suite 2100 1221 McKinney St., Suite 1900 Austin, TX 78701 Houston, TX 77010-2006 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Blake Stribling Wallace B. Jefferson Chasnoff Mungia Valkenaar Pepping Alexander Dubose Jefferson & & Stribling, LLP Townsend LLP 1020 NE Loop 410 Ste 150 515 Congress Ave., Suite 2350 San Antonio, TX 78209-2302 Austin, TX 78701 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * Adam Kiehne David Wilson Chasnoff Mungia Valkenaar Pepping Winstead PC & Stribling, LLP 401 Congress Ave Ste 2100 1020 NE Loop 410 Ste 150 Austin, TX 78701-3798 San Antonio, TX 78209-2302 * DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL * RE: Court of Appeals Number: 04-21-00244-CV Trial Court Case Number: 2021CI04574 Style: In re Electric Reliability Council of Texas, Inc., and William L. Magness Enclosed please find the order which the Honorable Court of Appeals has issued in reference to the above styled and numbered cause. If you should have any questions, please do not hesitate to contact me. Very truly yours, MICHAEL A. CRUZ, Clerk of Court ______________________ Cecilia Phillips Deputy Clerk, Ext. 5-3221 cc: Mary Angie Garcia (DELIVERED VIA E-MAIL) Fourth Court of Appeals San Antonio, Texas June 24, 2021 No. 04-21-00242-CV ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness, Appellants v. CPS ENERGY, Appellee From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-04574 Honorable Solomon Casseb, III, Judge Presiding No. 04-21-00244-CV IN RE ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness Original Mandamus Proceeding1 ORDER On June 15, 2021, Electric Reliability Council of Texas, Inc. and William L. “Bill” Magness (collectively, “ERCOT”) filed an interlocutory appeal, and it was assigned Cause Number 04-21-00242-CV. That same day, ERCOT filed a petition for writ of mandamus, and it was assigned Cause Number 04-21-00244-CV. Both cases challenge the trial court’s order denying ERCOT’s plea to the jurisdiction. The petition for writ of mandamus also challenges the trial court’s order denying ERCOT’s amended motion to transfer venue. In its petition, ERCOT asserts that the petition and the interlocutory appeal present largely identical arguments, 1 This proceeding in Cause No. 04-21-00244-CV arises out of Cause No. 2021-CI-04574, styled CPS Energy v. Electric Reliability Council of Texas, Inc. and William L. Magness, pending in the 285th Judicial District Court, Bexar County, Texas, the Honorable Solomon Casseb, III presiding. and it requests that we consolidate the two proceedings for decision for the sake of efficiency. On June 22, 2021, ERCOT filed a motion to consolidate, in which it further states its argument for consolidation. ERCOT notes in its motion that CPS Energy, the appellee in Cause Number 04-21-00242-CV and the real party in interest in Cause Number 04-21-244-CV, is opposed to the motion. We ORDER CPS Energy to respond to the motion to consolidate on or before June 28, 2021. See TEX. R. APP. P. 10.3(a)(3). On June 21, 2021, CPS Energy filed an “Emergency Motion for a Temporary Order to Extend Temporary Restraining Order and For Expedited Consideration” in Cause Number 21- 242-CV. The motion references a “Second Agreed Extended Temporary Restraining Order,” entered by the trial court, which states that the prohibitions stated in that TRO expire on June 25, 2021. CPS Energy argues in its emergency motion that the expiration of the TRO is automatically stayed during the pendency of the interlocutory appeal, but “out of an abundance of caution,” CPS Energy seeks an order under Rule 29.3 of the Texas Rules of Appellate Procedure to extend the trial court’s TRO. See TEX. R. APP. P. 29.3; see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (providing for automatic stays of all trial court proceedings for certain interlocutory appeals). On June 22, 2021, ERCOT filed a letter with this court, in which it expressly agreed that it would refrain from taking any of the actions prohibited by the TRO before July 15, 2021, unless this court denies CPS Energy’s motion before that date. On June 23, 2021, ERCOT filed a response in opposition to the motion, in which ERCOT references H.B. 4492 and S.B. 1580, signed into law on June 16, 2021, and June 18, 2021, respectively. ERCOT argues, among other things, that the new laws, “address the subject matter of CPS’s suit” and “probably moot much or all of CPS’s lawsuit.” In its response, ERCOT suggests the briefing schedule, which we now order. We ORDER CPS Energy to file a reply brief, on or before June 30, 2021, specifically addressing, among other things, CPS Energy’s right to relief under H.B. 4492 and S.B. 1580. We ORDER ERCOT to file a sur-reply brief, on or before July 7, 2021, addressing CPS Energy’s right to relief under H.B. 4492 and S.B. 1580. All other deadlines in the appeals are unaffected by this order. These other deadlines include the deadline of June 25, 2021, to file the clerk’s record in Cause Number 04-21-242-CV, see TEX. R. APP. P. 35.1(b), and ERCOT’s deadline of July 6, 2021, to file a response to CPS Energy’s motion to dismiss both appeals, which CPS Energy filed on June 23, 2021. See TEX. R. APP. P. 4.1(a), 10.3(a). It is so ORDERED on June 24, 2021. PER CURIAM ATTESTED TO: ______________________________ MICHAEL A. CRUZ, Clerk of Court MINUTES Court of Appeals Fourth Court of Appeals District San Antonio, Texas June 24, 2021 No. 04-21-00242-CV ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness, Appellants v. CPS ENERGY, Appellee From the 285th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-04574 Honorable Solomon Casseb, III, Judge Presiding No. 04-21-00244-CV IN RE ELECTRIC RELIABILITY COUNCIL OF TEXAS, INC. and William L. Magness Original Mandamus Proceeding2 ORDER On June 15, 2021, Electric Reliability Council of Texas, Inc. and William L. “Bill” Magness (collectively, “ERCOT”) filed an interlocutory appeal, and it was assigned Cause Number 04-21-00242-CV. That same day, ERCOT filed a petition for writ of mandamus, and it was assigned Cause Number 04-21-00244-CV. Both cases challenge the trial court’s order denying ERCOT’s plea to the jurisdiction. The petition for writ of mandamus also challenges the trial court’s order denying ERCOT’s amended motion to transfer venue. In its petition, ERCOT asserts that the petition and the interlocutory appeal present largely identical arguments, and it requests that we consolidate the two proceedings for decision for the sake of efficiency. On June 22, 2021, ERCOT filed a motion to consolidate, in which it further states its argument for consolidation. ERCOT notes in its motion that CPS Energy, the appellee in Cause Number 2 This proceeding in Cause No. 04-21-00244-CV arises out of Cause No. 2021-CI-04574, styled CPS Energy v. Electric Reliability Council of Texas, Inc. and William L. Magness, pending in the 285th Judicial District Court, Bexar County, Texas, the Honorable Solomon Casseb, III presiding. 04-21-00242-CV and the real party in interest in Cause Number 04-21-244-CV, is opposed to the motion. We ORDER CPS Energy to respond to the motion to consolidate on or before June 28, 2021. See TEX. R. APP. P. 10.3(a)(3). On June 21, 2021, CPS Energy filed an “Emergency Motion for a Temporary Order to Extend Temporary Restraining Order and For Expedited Consideration” in Cause Number 21- 242-CV. The motion references a “Second Agreed Extended Temporary Restraining Order,” entered by the trial court, which states that the prohibitions stated in that TRO expire on June 25, 2021. CPS Energy argues in its emergency motion that the expiration of the TRO is automatically stayed during the pendency of the interlocutory appeal, but “out of an abundance of caution,” CPS Energy seeks an order under Rule 29.3 of the Texas Rules of Appellate Procedure to extend the trial court’s TRO. See TEX. R. APP. P. 29.3; see also TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(b) (providing for automatic stays of all trial court proceedings for certain interlocutory appeals). On June 22, 2021, ERCOT filed a letter with this court, in which it expressly agreed that it would refrain from taking any of the actions prohibited by the TRO before July 15, 2021, unless this court denies CPS Energy’s motion before that date. On June 23, 2021, ERCOT filed a response in opposition to the motion, in which ERCOT references H.B. 4492 and S.B. 1580, signed into law on June 16, 2021, and June 18, 2021, respectively. ERCOT argues, among other things, that the new laws, “address the subject matter of CPS’s suit” and “probably moot much or all of CPS’s lawsuit.” In its response, ERCOT suggests the briefing schedule, which we now order. We ORDER CPS Energy to file a reply brief, on or before June 30, 2021, specifically addressing, among other things, CPS Energy’s right to relief under H.B. 4492 and S.B. 1580. We ORDER ERCOT to file a sur-reply brief, on or before July 7, 2021, addressing CPS Energy’s right to relief under H.B. 4492 and S.B. 1580. All other deadlines in the appeals are unaffected by this order. These other deadlines include the deadline of June 25, 2021, to file the clerk’s record in Cause Number 04-21-242-CV, see TEX. R. APP. P. 35.1(b), and ERCOT’s deadline of July 6, 2021, to file a response to CPS Energy’s motion to dismiss both appeals, which CPS Energy filed on June 23, 2021. See TEX. R. APP. P. 4.1(a), 10.3(a). It is so ORDERED on June 24, 2021. PER CURIAM ATTESTED TO: /s/ Michael A. Cruz MICHAEL A. CRUZ, Clerk of Court ENTERED THIS 24TH DAY OF JUNE, 2021.