Opinion issued November 6, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00470-CV
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ENTERGY CORPORATION, ENTERGY SERVICES, INC., ENTERGY
POWER, INC., ENTERGY POWER MARKETING CORPORATION,
ENTERGY ARKANSAS, INC., AND ENTERGY TEXAS, INC., Appellants
V.
DAVID JENKINS, GEORGE W. STRONG, FRANCIS N. GANS, AND
GARY M. GANS, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS
SIMILARLY SITUATED, Appellees
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Case No. CV20666
OPINION
This is an interlocutory appeal challenging the trial court’s order certifying a
class action in a suit brought under the Texas Theft Liability Act (“the Theft
Act”). 1 In three issues, appellants, Entergy Corporation, Entergy Services, Inc.,
Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas,
Inc., and Entergy Texas, Inc. (collectively, “Entergy”), contend that the trial court
(1) lacked subject matter jurisdiction over this suit, (2) abused its discretion in
finding that the requisites for class certification had been established, and
(3) abused its discretion by making findings of fact and conclusions of law that
misstate and misapply the applicable law.
We reverse and render.
Background
A. Factual Background
Entergy Corporation is a public utilities holding company with six electric
utility operating companies: Entergy Gulf States Louisiana, L.L.C., Entergy
Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New
Orleans, Inc., and Entergy Texas, Inc. (“ETI”). These six companies, which
operate in four southern states, provide electrical service to approximately 2.6
million retail customers.2
1
TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005 (Vernon 2011 & Supp.
2014).
2
The generation and bulk transmission assets of these six companies are referred to
as the “Entergy System.”
2
Each operating company has electricity generation facilities, consisting of
nuclear, coal, natural gas, or oil-fired generating plants. The companies are parties
to the Entergy System Agreement (“ESA”), a federal tariff under which power is
shared and distributed. 3 The companies also purchase power from each other and
from non-affiliated third parties in the power market. The ESA provides for
centralized control of power purchases, operations, and use of available resources
throughout the Entergy System. Although each company operates its generation,
transmission, and distribution systems independently, production, purchasing, and
sale of wholesale electricity on behalf of those companies to meet the needs of
retail and wholesale customers are controlled centrally by Entergy Services, Inc.
(“ESI”).
ESI operates a Systems Operation Center, located in The Woodlands, which
controls the selection of power (“dispatch decisions”). The ESA permits the
System Operator to purchase power at wholesale from third-party suppliers. The
System Operator controls daily operations and is in charge of determining whether
system-generated power is sufficient to meet capacity needs or whether purchasing
third-party power is necessary. ESI performs a monthly accounting, assigning a
portion of the total power resources used by the whole system to each operating
3
A “tariff” is a document listing a public utility’s rates and services and having the
force and effect of law. See First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52
S.W.3d 482, 489 (Tex. App.—Dallas 2001, no pet.).
3
company, generating an “intra-system” bill. The cost is dictated by a formula in
Service Schedule MSS-3 of the ESA, which governs the intra-company accounting
for system resources.
B. Procedural Background
On August 5, 2003, David Jenkins, George W. Strong, Francis N. Gans, and
Gary M. Gans, individually and on behalf of all persons similarly situated
(collectively, “Jenkins”), filed suit against Entergy4 alleging that it had devised and
operated an improper energy-purchasing scheme under which it had selected
internally generated, higher-priced electrical power while rejecting less expensive,
available third-party power, resulting in theft from Texas retail power customers in
violation of the Theft Act. On September 15, 2003, Entergy removed the suit to
federal court alleging federal question jurisdiction. The federal court remanded the
case to state court, concluding that the suit did not invoke federal law.
On April 23, 2004, Entergy filed a motion to dismiss for want of
jurisdiction, contending that jurisdiction of Jenkins’s claims was preempted by the
Federal Energy Regulatory Commission (“FERC”) and the Texas Public Utilities
Commission (“PUC”) and that the claims were also barred by the filed-rate
doctrine. On November 24, 2004, the trial court granted Entergy’s motion to
dismiss, finding that it lacked subject matter jurisdiction over Jenkins’s claims.
4
Although not originally named as a defendant in the suit, Entergy Gulf States, Inc.
(appellant ETI’s predecessor) later intervened.
4
Jenkins appealed the trial court’s order dismissing the case. In Jenkins v.
Entergy Corp., 187 S.W.3d 785 (Tex. App.—Corpus Christi 2006, pet. denied)
(“Jenkins I”), the Corpus Christi Court of Appeals reversed the trial court’s order
dismissing the suit for lack of subject matter jurisdiction. On June 6, 2012, Jenkins
filed a motion to certify a class consisting of Texas retail customers served by ETI
who were billed and paid for electric power from January 1, 1994, to present.
Entergy filed a second motion to dismiss for lack of jurisdiction and three motions
for summary judgment. The trial court denied the motion to dismiss and the
summary judgment motions.
The parties submitted extensive briefing on class certification issues, and the
trial court held a certification hearing lasting several days. On April 30, 2012, the
trial court granted Jenkins’s motion for class certification and issued extensive
findings of fact and conclusions of law. Entergy timely perfected this interlocutory
appeal.
Analysis
In three issues, Entergy contends that the trial court (1) lacks subject matter
jurisdiction over Jenkins’s claims, (2) abused its discretion in finding that Jenkins
had established the requirements for class certification, and (3) abused its
discretion by making findings of fact and conclusions of law that misstate and
misapply the law. Jenkins argues that Jenkins I, which rejected Entergy’s
5
jurisdictional arguments, is the law of the case and prohibits reconsideration of the
subject matter jurisdiction issue. Entergy urges us to find that Jenkins I is not the
law of the case because (1) the circumstances and evidence have changed,
(2) Jenkins I was wrongly decided, (3) the law of the case doctrine should not be
applied to subject-matter jurisdiction determinations, and (4) Jenkins I did not
address all of the issues raised in this appeal.
A. Law of the Case
Because this case comes to us on appeal following remand for further
proceedings in the trial court by the Corpus Christi Court of Appeals in Jenkins I,
which reversed the trial court’s previous order dismissing the case for want of
jurisdiction, we consider, as a preliminary matter, the law of the case doctrine to
determine whether the Corpus Christi Court of Appeals’ decision prevents us from
considering Entergy’s jurisdictional arguments.
“Subject matter jurisdiction is ‘essential to a court’s power to decide a
case.’” City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam)
(quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000)).
“Without jurisdiction the court cannot proceed at all in any cause; it may not
assume jurisdiction for the purpose of deciding the merits of the case.” Fin.
Comm’n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem
Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S. Ct. 1184,
6
1191 (2007)). “The failure of a jurisdictional requirement deprives the court of the
power to act (other than to determine that is has no jurisdiction), and ever to have
acted, as a matter of law.” City of DeSoto v. White, 288 S.W.3d 359, 393 (Tex.
2009) (quoting Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359
(Tex. 2004)). Thus, “[a] judgment is void if rendered by a court without subject
matter jurisdiction.” In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 309 (Tex.
2010) (orig. proceeding). “[N]ot only may an issue of subject matter jurisdiction
‘be raised for the first time on appeal by the parties or by the court’, a court is
obliged to ascertain that subject matter jurisdiction exists regardless of whether the
parties questioned it.” Id. at 306 (quoting Loutzenhiser, 140 S.W.3d at 358)
(emphasis in original); City of Allen v. Pub. Util. Comm’n of Tex., 161 S.W.3d 195,
199 (Tex. App.—Austin 2005, no pet.) (“[T]he question of jurisdiction is
fundamental and can be raised at any time in the trial of a case or on appeal.”).
The law of the case doctrine is defined as “that principle under which
questions of law decided on appeal to a court of last resort will govern the case
throughout its subsequent stages.” Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d
593, 596 (Tex. 2006); Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317
S.W.3d 361, 373 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Under the
law of the case doctrine, a court of appeals will ordinarily be bound by its initial
decision if there is a subsequent appeal in the case. Briscoe v. Goodmark Corp.,
7
102 S.W.3d 714, 716 (Tex. 2003). “By narrowing the issues in the successive
stages of the litigation, the law of the case doctrine is intended to achieve
uniformity of decision as well as judicial economy and efficiency.” Id. (quoting
Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). This doctrine is based on
public policy and is aimed at bringing finality to litigation. Id.
A decision rendered on an issue by an appellate court does not, however,
absolutely bar reconsideration of the issue on a second appeal. Id. Rather, the law
of the case doctrine “‘merely expresses the practice of the courts generally to
refuse to reopen what has been decided.’” See It’s the Berry’s, LLC v. Edom
Corner, LLC, 271 S.W.3d 765, 771 (Tex. App.—Amarillo 2008, no pet.) (quoting
Messinger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740 (1912)). The
application of the doctrine lies within the discretion of the court, depending on the
circumstances of the case. Briscoe, 102 S.w.3d at 716. The doctrine does not
necessarily apply when either the issues or the facts presented at successive
appeals are not substantially the same as those involved in the first trial. 5 Pitman
v. Lightfoot, 937 S.W.2d 496, 513 (Tex. App.—San Antonio 1996, writ denied).
Moreover, it is an exception to the law of the case doctrine that the original
decision was clearly erroneous. Briscoe, 102 S.W.3d at 716.
5
The other occasion allowing the doctrine to be set aside—when a partial summary
judgment is followed by a trial on the merits—is not relevant to this appeal. See
Hudson v. Wakefield, 711 S.W.2d 628, 630–31 (Tex. 1986).
8
Most critically, the law of the case doctrine does not either confer or limit
subject matter jurisdiction and is not a limitation on the power of the courts to act.
See It’s the Berry’s, 271 S.W.3d at 771–72 (refusing to apply law of the case
doctrine to bar review of district court’s exercise of subject matter jurisdiction on
estoppel grounds). “Subject matter jurisdiction cannot be conferred by consent,
waiver, or estoppel at any stage of a proceeding.” Id. (quoting Tourneau Houston,
Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.—Houston [1st
Dist.] 2000, no pet.)). It follows that subject matter jurisdiction cannot be
conferred by a prior decision in the case.
Given this law, we review de novo the issue of whether the Texas courts
have subject matter jurisdiction over Jenkins’s claims. See In re United Servs.
Auto. Ass’n, 307 S.W.3d at 306 (holding that appellate court is “obliged to
ascertain that subject matter jurisdiction exists,” even sua sponte on appeal if not
raised by parties).
B. Entergy’s Jurisdictional Arguments
Entergy argues that the trial court lacks subject matter jurisdiction over
Jenkins’s claims for several reasons. First, Entergy argues that the FERC has
exclusive jurisdiction over Jenkins’s claims. Second, Entergy argues that if this
Court determines that FERC does not have exclusive jurisdiction, then the PUC,
which governs retail rates for power sold to Texas consumers, has exclusive
9
jurisdiction over this case. Third, Entergy asserts that both the federal and Texas
filed-rate doctrines bar Jenkins’s suit. We conclude that FERC has exclusive
jurisdiction over Jenkins’s claims and, therefore, appellees’ claims must be
dismissed.
1. Exclusive Jurisdiction
An agency has exclusive jurisdiction when Congress or the Legislature has
granted that agency the sole authority to make an initial determination in a dispute.
In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding); Subaru
of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002).
Likewise, an agency has exclusive jurisdiction “‘when a pervasive regulatory
scheme indicates that Congress intended for the regulatory process to be the
exclusive means of remedying the problem to which the regulation is addressed.’”
In re Entergy Corp., 142 S.W.3d at 322 (quoting David McDavid Nissan, 84
S.W.3d at 221)). If an agency has exclusive jurisdiction, a party must exhaust all
administrative remedies before seeking review of the agency’s action. Id. at 321
(citing Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)). Until the
party has exhausted all administrative remedies, the trial court lacks subject matter
jurisdiction and must dismiss any claims that fall within the agency’s exclusive
jurisdiction. Id. at 321–22; Oncor Elec. Delivery Co. LLC v. Giovanni Homes
Corp., 438 S.W.3d 644, 648 (Tex. App.—Fort Worth 2014, no pet. h.). Whether
10
an agency has exclusive jurisdiction is a question of law that we review de novo.
In re Entergy Corp., 142 S.W.3d at 322; David McDavid Nissan, 84 S.W.3d at
222.
2. FERC’s Jurisdiction
Jenkins claims that ETI, in conspiracy with its parent and affiliates
(Entergy), stole the class’s money by charging them for using ETI-generated
electrical power or power purchased from other entities within the Entergy System
instead of cheaper power available from third parties, in violation of the Theft Act.
The Corpus Christi Court of Appeals noted in Jenkins I that the ESA
provides that: (1) the companies within the Entergy System, with the consent of or
under conditions specified by the operating committee, may agree to purchase
capacity or energy from outside sources that, if purchased by the operating
company, shall be allocated amongst the companies in the System in any manner
mutually agreeable to them; (2) the operating committee may purchase energy
under economic dispatch or emergency conditions; (3) the operating committee is
to ensure the continuous supply or capacity of energy, provide for and coordinate
safe dispatching and the proper distribution of reserves, coordinate negotiations for
the interchange and sale of power and energy, including the sale and delivery to
others on a profitable basis of power and energy not required for system purposes,
and to secure power from external sources as may be required or will result in
11
savings to the companies; and (4) the operating committee shall determine
availability of energy for purchase from or sale to outside systems in an
economical manner. See 187 S.W.3d at 806.
As Entergy explains and its evidence shows, electricity cannot be practically
stored. Rather, at all times, available power must match demand, which is based
upon ever-changing customer usage. To match power and demand, Entergy selects
generating resources to meet estimated future demand (the commitment process)
and determines the level at which committed resources will be operated and
adjusted to meet the instantaneous demand (the demand process). These processes
involve determining what third-party power is available, what price the seller is
demanding, what quantity is available each hour, whether transmission service is
available to deliver the purchased power to where it is needed, whether available
third-party power can be automatically dispatched or must be purchased in
unchangeable blocks of time and energy, whether there is Entergy generation that
could and should be displaced, and whether reserve requirements can be met.
Operation of the System requires that a significant portion of the System’s
resources be able to respond to changes in demand through instantaneous changes
in the amount of electricity provided, which requires flexible system generators.
Entergy relies on flexible generation to be able to comply with federal law, which
permits industrial co-generators on the Gulf Coast to require Entergy to take excess
12
power into the System or to cease supplying power to the System without notice.
Entergy avers that third-party power is generally not flexible, limiting the amount
of third-party power the Entergy System can use.
Entergy’s fuel and purchased-power costs are subjected to scrutiny by FERC
under the Federal Power Act (“FPA”) and by the PUC under the Public Utilities
Regulatory Act (“PURA”). FERC regulates wholesale power transactions and has
exclusive jurisdiction over wholesale power rates. The PUC governs ETI’s
recovery of fuel and purchased-power costs from its customers and, in fuel
reconciliation proceedings, it reviews and makes a final determination as to the
reasonableness and necessity of ETI’s incurred fuel and purchased-power costs.
The cost of system-generated or purchased power is charged directly to ratepayers,
subject to PUC prudence review. This cost charged to ratepayers is the subject of
Jenkins’s sole complaint—that Entergy has over-charged appellees in violation of
the Theft Act.
Under the FPA, FERC has exclusive jurisdiction of the wholesale sale or
transmission of electricity in interstate commerce. See 16 U.S.C.A. § 824(a),
(b)(1); Entergy La., Inc. v. La. Pub. Serv. Comm’n, 539 U.S. 39, 41, 123 S. Ct.
2050, 2053 (2003). FERC’s exclusive jurisdiction extends not only to rates but
also to power allocations that affect wholesale rates. See Miss. Power & Light Co.
v. Miss. ex rel. Moore, 487 U.S. 354, 371–72, 108 S. Ct. 2428, 2439 (1988)
13
(holding that states may not alter allocations of power ordered by FERC by
substituting their own determinations of what would be just and fair; FERC-
mandated allocations of power are binding on states and must be treated as fair and
reasonable when determining retail rates, and “[s]tates may not bar regulated
utilities from passing through to retail consumers FERC-mandated wholesale
rates”).
FERC’s jurisdiction encompasses the determination of just and reasonable
rates—including all classifications, practices, regulations, and contracts affecting
rates, as well as the authority to hear complaints that an existing rate (or associated
charge, classification, rule, regulation, practice or contract) is unjust, unreasonable,
unduly discriminatory or preferential. See 16 U.S.C.A. §§ 824d, 824e. FERC also
has exclusive jurisdiction to make a final determination as to whether the rate has
been violated. AEP Tex. N. Co. v. Tex. Indus. Energy Consumers, 473 F.3d 581,
586 (5th Cir. 2006). The “filed rate doctrine” requires that interstate power rates
filed with, or fixed by, FERC must be given binding effect by state utility
commissions determining intrastate rates in that the FPA and the Supremacy
Clause preempt any state action modifying or overruling the filed rate. See 16
U.S.C.A. § 824(b)(1); Entergy La., 539 U.S. at 47, 123 S. Ct. at 2056; AEP Tex. N.
Co., 473 F.3d at 584.
14
The FPA gives states, municipalities, and retail ratepayers the right to
participate in FERC proceedings and to file complaints. 16 U.S.C.A. §§ 824d,
824e, 825e. The FPA also gives FERC exclusive jurisdiction to remedy rate
violations by providing refunds. Id. § 824e; AEP Tex. N. Co., 473 F.3d at 586.
And it provides civil penalties for violating any provision of the governing chapter
of the FPA or any rule or order thereunder. 16 U.S.C.A. § 825o-1(b).
Entergy Louisiana involved the same group of energy companies as in this
case and a similar issue involving FERC preemption of state utility commission
regulation of power rates under the filed-rate doctrine. Entergy Louisiana shared
capacity with its fellow operating companies in the Entergy System which allowed
the companies “to access additional capacity when demand exceeds the supply
generated by that company alone.” Entergy La., 539 U.S. at 42, 123 S. Ct. at 2053.
Pursuant to MSS-1 of the System Agreement, the same ESA at issue here, Entergy
allocated the costs of keeping excess capacity available among the operating
companies. Id. MSS-1 provided a formula to calculate “cost-equalization”
payments among the companies in the System, which ensured that companies
within the System that used more capacity than they contributed (“short”
companies) made payments to companies that contributed more capacity than they
used (“long” companies). Id. at 42–43, 123 S. Ct. at 2053–54. Entergy determined
each company’s capacity on a monthly basis, and a company that contributed more
15
capacity than it used received a payment equal to its average cost of the company’s
generating units multiplied by the number of megawatts the company was
considered “long.” Id. at 43, 123 S. Ct. at 2054. Under Entergy’s Extended
Reserve Shutdown (“ERS”) program, the operating committee could designate
some generating units as not immediately necessary for capacity needs; but
because these units could be activated if energy demand increased in the future,
these units were considered “available” under the MSS-1’s cost-equalization
calculations. Id.
FERC approved an amendment to the System Agreement that “allow[ed] an
ERS unit to be treated as available under MSS-1 if the operating committee
determine[d] it intend[ed] to return the unit to service at a future date.” Id. at 44,
123 S. Ct. at 2054. Entergy Louisiana, which routinely had to make cost-
equalization payments to other companies within the System pursuant to MSS-1,
filed its 1997 retail rates with the Louisiana Public Service Commission
(“LPSC”)—the counterpart to the Texas PUC in this case. See id. at 45, 123 S. Ct.
at 2055. The LPSC determined that, although it was preempted from determining
whether the operating committee’s inclusion of ERS units prior to August 5,
1997—the date of the FERC order approving the amendment to the System
Agreement—was prudent, it was not preempted from “disallowing MSS-1 related
costs as imprudent subsequent to August 5, 1997.” Id. The LPSC “concluded that
16
the operating committee’s treatment of ERS units after August 5, 1997, was
imprudent and that [Entergy Louisiana’s] MSS-1 payments would not be
considered when setting [its] retail rates in Louisiana.” Id. at 46, 123 S. Ct. at
2055.
The United States Supreme Court determined that the LPSC’s order
“impermissibly ‘traps’ costs that have been allocated in a FERC tariff” in violation
of the filed-rate doctrine. Id. at 49, 123 S. Ct. at 2057. The Court noted that the
System Agreement “leaves the classification of ERS units to the discretion of the
operating committee” instead of involving a specific FERC-mandated cost-
allocation. Id. The Court refused to create an exception to the filed-rate doctrine,
even though the case did not involve a specific FERC mandate, reasoning that to
do so would “substantially limit FERC’s flexibility in approving cost allocation
arrangements.” Id. at 50, 123 S. Ct. at 2057. The Court also held that preemption
did not depend on the existence of a FERC order approving the particular
classification at issue, stating, “It matters not whether FERC has spoken to the
precise classification of ERS units, but only whether the FERC tariff dictates how
and by whom that classification should be made.” Id.
The same FERC-approved System Agreement that governed in Entergy
Louisiana governs Entergy’s operations in this case. ESA section 6.02 sets out the
duties of the System Operating Center. This section provides that Entergy Services
17
shall “[d]etermine the most effective scheduling of sources for the reliable supply
of power and energy on an economical basis to the companies” and “[d]etermine
the availability of energy for purchase from or sale to outside systems on an
economical basis under effective contracts and arrange for and schedule such
transactions.” The ESA thus allows the System Operator to meet energy demand
by purchasing capacity from third-party sources, but the ESA does not specifically
dictate the amount of power the System Operator is to purchase from third-party
sources relative to system-generated power. This decision is therefore left to the
System Operator’s discretion under the FERC-approved ESA.
Jenkins challenges that decision, alleging that Entergy manipulated the
computer programs used in making purchasing decisions, such that Entergy
purchased more expensive system-generated power even though lower-cost third-
party power was available, resulting in Entergy’s charging higher rates to its retail
customers. Jenkins seeks a refund of retail charges, but he complains about
Entergy’s wholesale electricity purchases. Although Jenkins does not allege
breach of the ESA as a cause of action, he challenges Entergy’s purchasing
decisions—whether to use allegedly available third-party electricity or system-
generated electricity—which Entergy undertook pursuant to the ESA.
Determining whether Entergy permissibly exercised its discretion in making its
18
purchasing decisions thus necessarily requires consideration of the ESA, a FERC-
approved tariff.
Because resolving this dispute involves the consideration and interpretation
of a FERC-approved tariff, we conclude that this dispute falls within FERC’s
exclusive jurisdiction. See AEP Tex. N. Co., 473 F.3d at 585 (“FERC, not the
state, is the appropriate arbiter of any disputes involving a tariff’s interpretation.”);
see also Entergy La., 539 U.S. at 50, 123 S. Ct. at 2057 (“It matters not whether
FERC has spoken to the precise classification of ERS units, but only whether the
FERC tariff dictates how and by whom that classification should be made.”).
Because Jenkins did not exhaust his administrative remedies by first
bringing this dispute before FERC, we hold that the trial court lacks subject matter
jurisdiction over the case. See In re Entergy Corp., 142 S.W.3d at 321–22 (holding
that when agency has exclusive jurisdiction over dispute, party must exhaust all
administrative remedies before seeking relief in district court from agency
decision, and until party exhausts administrative remedies, trial court lacks subject
matter jurisdiction). We hold that the trial court erroneously denied Entergy’s
motion to dismiss for lack of jurisdiction and that the trial court’s class-
certification order is therefore void.
19
Accordingly, we sustain Entergy’s first issue. 6
Conclusion
We declare the trial court’s order granting class certification void. We
reverse the order of the trial court denying Entergy’s motion to dismiss and render
judgment dismissing all claims against Entergy.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
Justice Sharp, dissenting. Opinion to follow.
6
Given our disposition of Entergy’s first issue, we need not reach its second and
third issues. See TEX. R. APP. P. 47.1.
20
Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Texas, Inc. v. David Jenkins, George W. Strong, Francis N. Gans and Gary M. Gans, Individually and on Behalf of All Persons Similarly Situated
Combined Opinion