Public Utility Commission v. City of Coahoma

I withdraw the original dissenting opinion filed herein on October 2, 1980, and substitute this in lieu thereof.

For more than twenty years prior to the creation of PUC, the City of Coahoma had *Page 532 been supplying water to its own citizens and to many persons who resided outside of City but within the District. It timely filed an application under Section 53 of PURA for a grandfather certificate authorizing the continuation of the service it was then rendering.

District sought a certificate under Section 54 authorizing service to Coahoma's customers who resided outside the City. Coahoma was denied its grandfather certificate as to the customers outside its corporate limits and District was granted the right to serve such customers.

City lost about half of its customers in the Commission order and appealed to the District Court where it obtained relief. That judgment has now been reversed and the sole authority therefor is an opinion of a prior attorney general which, in turn, does not cite a single authority. I decline to follow such ruling.

City was entitled to a grandfather certificate under Section 53, and the District Court was correct in so holding.1 Any other construction of the statute, contrary to that of the trial court, leads to absurd results. And, this record demonstrates that the Commission did not follow the attorney general's opinion now relied upon by the majority.

Instead, our record shows that PUC granted certificates of convenience and necessity, under Section 53, to more than twenty cities, authorizing the continuation of their retail public utility service in providing water. In many instances, the certificate included areas wider than the corporate limits.2 This order, dated January 27, 1977, was nine months after the opinion of the attorney general mentioned earlier.

The effect of Section 50(2) is to preclude one utility from invading another's territory without first obtaining a certificate of public convenience and necessity from PUC under Section 54. See and cf. City of Lubbock v. South Plains Elec. Coop., 593 S.W.2d 138, 141 (Tex.Civ.App. Amarillo 1979, writ ref'd n.r.e.); Southwestern Public Service Co. v. Public Utility Comm'n, 578 S.W.2d 507, 511 (Tex.Civ.App. Austin 1979, writ ref'd n.r.e.). It necessarily follows that a municipality operating a water utility outside its boundaries is entitled to a grandfather certificate under Section 53 if it otherwise qualifies for such treatment under such section.

Under the construction of the statute, as determined by the majority, a city cannot receive a grandfather certificate for service in an area it has been serving for decades; yet, another entity could invade city's territory with impunity and without regard to its effect upon the city's overall operation.

This inequitable treatment is exacerbated by Section 54 relating to merit as distinguished from grandfather certificates. This latter section requires PUC to consider the effect on a public utility serving the area but does not specifically speak to the question of what consideration is to be given to the effect on a "retail public utility".

Should the result which I espouse in this dissent need further support, I would call upon the rule of law set forth in Magnolia Petroleum Co. v. Walker, 125 Tex. 430, 83 S.W.2d 929, 934 (1935), where the Court, quoting from a text, used this language:

"`Where . . . the language of the statute is of doubtful meaning, or where an adherence to the strict letter would lead to injustice, to absurdity, or to contradictory provisions, the duty devolves upon the court of ascertaining the true meaning. If the intentions of the Legislature cannot be discovered, it is the duty of the court to give the statute a reasonable construction, consistent with the general principles of law.' "

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If the Legislature intended to deprive cities of protection from encroachment upon their areas of service after adoption of PURA, it appears to me that it could have chosen more apt language to accomplish its purpose. See and compare First State Bank of Bedford v. Miller, 563 S.W.2d 572, 577 (Tex. 1978).

The judgment of the District Court was correct and should be affirmed. I respectfully dissent from a reversal thereof.

1 The District Court's first conclusion of law read: "The legislative intent of Article VII of Art. 1446c is that a municipality may be a retail public utility and that for the purposes of Article VII every retail public utility is a public utility."
2 For instance, Item 4 of the PUC Order in Docket No. 21 granted a certificate to: "City of El Paso, the `present' and `future water service area' in El Paso County as shown on maps WM 69-75, as amended by map filed 12-30-76, Exhibit 30."