ADP Texas Central Co. v. PUC (Tex.App.- Austin 2008)

AEP Texas Central Company v. PUC (Tex.App.- Austin, May 23, 2008) () (Before Justices Patterson, Puryear and Pemberton) No.

Appellants, AEP Texas Central Company; the State of Texas, by and through the Office of the Attorney General, Consumer Protection and Public Health Division, Public Agency Representation Section; et al.// Cross-Appellant, Public Utility Commission of Texa v. Appellee, Public Utility Commission of Texas// Cross-Appellees, AEP Texas Central Company; the State of Texas, by and through the Office of the Attorney General, Consumer Protection and Public Health Division, Public Agency Representation Section; et al.--Appeal from 250th District Court of Travis County

O P I N I O N

PER CURIAM

This appeal arises from the final order of the Public Utility Commission in the true-up proceeding to finalize "stranded costs" and other true-up balances for the AEP Texas Central Company and CPL Retail Energy, L.P. (collectively "TCC") as a result of the legislative mandate to bring competition to the retail energy market in Texas. The district court affirmed the Commission's final order in most respects, but reversed on three issues. This Court affirms the district court's judgment in part, reverses in part, and remands this cause to the Commission for further proceedings consistent with the Court's opinions.

Justice Patterson filed a concurring and dissenting opinion, joined by Justices Puryear and Pemberton in part. Justice Pemberton filed a concurring opinion, joined by Justice Puryear.

For the reasons expressed in Justice Patterson's opinion, the Court affirms the district court's judgment, except that the Court reverses the district court's judgment that: (1) the Commission erred in excluding the testimony and expert report of Ross A. Sollosy; (2) the Commission erred in using the interest rate specified in PUC Rule 25.263(l)(3); (3) the Commission properly refused to consider the potential normalization violation resulting from its treatment of the amounts held in TCC's federal tax accounts for Accumulated Deferred Investment Tax Credits (ADITC) and Excess Deferred Federal Income Tax (EDFIT); and (4) the Commission properly accounted for the excess mitigation credits and interest paid by TCC to its affiliated retail electric provider.

For the reasons expressed in Justice Pemberton's opinion, the Court affirms the district court's judgment that section 39.252(d) of the Public Utility Regulatory Act precludes the Commission from adjusting the net book value of TCC's generation assets where the Commission has found that TCC has disposed of those assets in a bona fide third-party transaction under a competitive offering as required in section 39.262(h). Accordingly, the Court does not reach the question of whether the Commission's adjustments to the net book values of TCC's share in the South Texas Nuclear Project and the Coleto Creek Coal Plant for "commercial unreasonableness" were supported by substantial evidence. The Court also affirms the district court's judgment affirming the Commission's refusal to make book-value adjustments based on the failure to employ bridge power sales agreements.

Justice Patterson dissents from the majority's conclusion that section 39.252(d) precludes the Commission's adjustments to the net book value of TCC's generation assets for "commercial unreasonableness" related to TCC's sales of the South Texas Nuclear Project and the Coleto Creek Coal Plant to the extent TCC's commercially unreasonable behavior benefitted the utility and was not captured in the market valuation of TCC's generation assets.

Before Justices Patterson, Puryear and Pemberton;
Concurring and Dissenting Opinion by Justice Patterson;

Joined in part by Justices Puryear and Pemberton;
Concurring Opinion by Justice Pemberton;

Joined by Justice Puryear

Affirmed in part; Reversed and Remanded in part
Filed: May 23, 2008

En Banc Rehearing denied in

Texas Citizens for a Safe Future and Clean Water and Mr. James G. Popp v. Railroad Commission of Texas and Pioneer Exploration, Ltd., (Tex.App.- Austin, May 23, 2008)( denial) (Before Chief Justice Law, Justices Patterson, Puryear, Pemberton, Waldrop and Henson) .--Appeal from 200th District Court of Travis County

O R D E R

PER CURIAM

The Railroad Commission of Texas and Pioneer Exploration, Ltd. have each filed motions for rehearing en banc. The motions are denied.

It is ordered May 23, 2008.

Before Chief Justice Law, Justices Patterson, Puryear, Pemberton, Waldrop and Henson

Concurring Opinion by Justice Waldrop, joined by Justices Puryear and Pemberton

Concurring Opinion by Justice Pemberton, joined by Justice Waldrop

Release on reasonable bail pending appeal by state

Jimmy Lee Simmons v. The State of Texas (Tex.App.- Austin, May 2, 2008)
ORDERED: (Before Chief Justice Law, Justices Waldrop and Henson)

Jimmy Lee Simmons v. The State of Texas--Appeal from 20th District Court of Milam County

O R D E R
PER CURIAM

Appellant's motion for release on reasonable bail pending final determination of an appeal by the State is granted. See Tex. Code Crim. Proc. Ann. art. 44.04(h) (West Supp. 2007). The amount of bail is set at $25,000. The trial court shall set the conditions of bail and must approve any sureties.
It is ordered May 2, 2008.
Before Chief Justice Law, Justices Waldrop and Henson
Do Not Publish

Mandamus petition disposed of in three-sentence per curiam opinion

In re Russell Scott Silverman, No. (Tex.App.- Austin, July 26, 2007)(Per Curiam)(Before Chief Justice Law, Justices Puryear and Waldrop)
Appeal from 22nd District Court of Comal County

ORIGINAL PROCEEDING FROM COMAL COUNTY

M E M O R A N D U M O P I N I O N

Relator has filed his petition for writ of mandamus. See Tex. R. App. P. 52.8. Having reviewed the petition and record filed by relator, we cannot hold that the trial court abused its discretion in entering the complained-of order. We deny the petition for writ of mandamus.
____________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Filed: July 26, 2007