I respectfully dissent.
In my judgment, this Court misinterprets PURA § 17(e) Article 1446c, Tex.Rev.Civ.Stat.Ann. (1980).
At the outset, the Court's opinion is in conflict with our decision in Texas Water Rights Commission v. City of Dallas,591 S.W.2d 609 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e.). There we held that the Texas Water Rights Commission had complete jurisdictional authority under Water Code section6.056, over the rates charged by the City of Dallas to its customer cities. This Court made no attempt to hold that the Public Utility Commission, pursuant to PURA § 17(e), maintained exclusive original jurisdiction over such intercity water sales or services.
The Court's interpretation of PURA § 17(e) further conflicts with § 12.013 of the Texas Water Code, and other Water Code rate fixing provisions. Section 12.013 of the Texas Water Code, directs the Texas Water Commission to fix reasonable rates for the furnishing of raw or treated water by one political subdivision of the state to another. Subsection (h) of § 12.013 states "nothing herein contained shall affect the jurisdiction of the Public Utility Commission." By adopting § 12.013 in 1977 Tex.Gen Laws, Ch. 870 at 2207, the Legislature apparently did not intend to involve any jurisdiction of the Public Utility Commission earlier established under § 17(e) of PURA. *Page 633
By definition, the sale of potable water from one municipality to another entails rates, operations and services not within the incorporated limits of the municipality providing the water service. Yet this Court has determined such matters to be within the exclusive original jurisdiction of the Public Utility Commission under PURA § 17(e).
In the instant case, the City of Sherman is not seeking to have its service area protected. Nor is the appellant Luella Water Supply Corporation seeking protection of its service area from service encroachments. To the limited extent that PURA Article VII is directed at municipally owned utilities, it creates Commission jurisdiction strictly over those municipally owned utilities extending services either beyond their corporate limits or within an area being served by another retail public utility. It is undisputed that the City of Sherman is not attempting to provide or extend services within the Luella Water Supply Corporation's service area. Rather the record is clear that the City of Sherman is attempting only to obtain a more adequate and reliable source of supply for its inhabitants. I would submit that there is no ambiguity between § 3(c), § 49 and § 60 of PURA.
I would affirm the judgment of the trial court.