                                                                                             ACCEPTED
                                                                                         03-14-00706-CV
                                                                                                 5270049
                                                                              THIRD COURT OF APPEALS
                                                                                         AUSTIN, TEXAS
                                                                                    5/13/2015 2:46:24 PM
                                                                                       JEFFREY D. KYLE
                                                                                                  CLERK
                              No. 03-14-00706-CV
                        IN THE COURT OF APPEALS           FILED IN
                    FOR THE THIRD DISTRICT OF TEXAS 3rd COURT OF APPEALS
                                                        AUSTIN, TEXAS
                             AUSTIN, TEXAS
                                                               5/13/2015 2:46:24 PM
                              ENTERGY TEXAS, INC.,               JEFFREY D. KYLE
                                                                       Clerk
                                   Appellant,
                                        v.
              PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.,
                              Appellees.
__________________________________________________________________

                        STATE AGENCIES’
              REPLY TO APPELLANT’S RESPONSE TO
              STATE AGENCIES’ MOTION TO STRIKE
                               AND
             RESPONSE TO MOTION FOR THE COURT
                   TO TAKE JUDICIAL NOTICE
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

      Appellee State of Texas Agencies and Institutions of Higher Education (State

Agencies) file this Reply to Appellant Entergy Texas Inc.’s (ETI’s) Response to

State Agencies’ Motion to Strike and Response to ETI’s Motion for the Court

to Take Judicial Notice. In support of their own motion and in opposition to ETI’s,

State Agencies show as follows.

      I.    Testimony and Orders are different.

      ETI conflates the nature of documents that are appropriate for attachment as

appendices. Contrary to ETI’s characterization, there is an appreciable difference

between evidence offered within an administrative agency’s proceeding and the final

                                        1
decision of the agency, as documented in a Final Order signed by the agency’s

Commissioners. Because ETI appended evidence, in the form of witness testimony,

to its brief, the appendices and linked testimony should be properly stricken.

         Texas Rule of Appellate Procedure (TRAP) 38.1(i) requires that a brief must

contain “appropriate citations to authorities and to the record.” TRAP 38.1(k)(2)

allows optional contents for the appendix to a brief in civil cases, specifically, items

pertinent to the issues or points presented for review, including “copies or excerpts

of relevant court opinions, laws, documents on which the suit was based, pleadings,

excepts from the reporter’s record, and similar material.” When read together,

subsections (i) and (k) provide for the citation to and appending of authorities, such

as case law and statutes, or other documents from related proceedings. Where

judicial review of an Administrative decision is sought, TRAP 36.2 allows for the

inclusion of the record of the underlying agency proceeding in the appellate record.

Nowhere in the rules of appellate procedure are evidentiary filings from other,

unrelated agency proceedings made eligible for inclusion as appendices to a brief in

this Court.

         ETI cites to Oncor Elec. Delivery Co. LLC v. Public Util. Comm’n of Tex.1 to

support its assertion that this Court may consider the testimony presented in ETI’s

appendices. However, the Oncor case does not support ETI’s argument. In Oncor,


1   406 S.W.3d 253, 267 (Tex. App.—Austin 2013, no pet.).
                                               2
this Court ruled that it could consider prior Public Utility Commission (PUC or

Commission) orders; that is, it considered the Commission’s decisions in previous

cases. It did not consider evidence offered in any of the cases that gave rise to those

decisions. In fact, the consideration of Commission decisions was explicitly

contrasted with the consideration of evidence regarding fact issues from other

agency proceedings, which the Oncor court affirmed had previously been properly

proscribed. 2 The testimony put forth by ETI is not properly appended; it should be

stricken.

       II.    Citations should include page numbers.

       State Agencies’ objection to ETI’s incomplete citations concerns locating

relevant references within the referenced documents, rather than locating the

documents themselves. As stated in State Agencies’ Motion to Strike, neither

appellate court nor trial court is required to wade through entire documents and

testimonies to locate proof. It is the parties’ responsibility to provide page numbers

and, if necessary, line numbers, for the court’s direction. 3 ETI’s appended and linked

documents are voluminous; without page number citations, they are neither useful

nor eligible for consideration by this Court.




2
  Id. (citing Reliant Energy, Inc. v. Public Util. Comm’n of Tex., 153 S.W.3d 174, 199–200 (Tex.
App. —Austin 2004, pet. denied).
3
  See Arredondo v. Rodriguez, 198 S.W.3d 236, 238–39 (Tex. App.—San Antonio 2006, no
pet.).
                                               3
       III.   Direction to the PUC Interchange is inappropriate.

       ETI’s repeated citations directing the Court to the PUC Interchange to review

PUC proceedings is inappropriate. As noted in State Agencies’ Appellee’s Brief and

explained in State Agencies’ Motion to Strike, this Court cannot consider evidence

that is not formally included in the appellate record.4 Appellant’s repeated efforts to

direct the Court to the vast depths of the PUC Interchange, which holds all filings in

all Commission dockets and projects for multiple decades, are improper citations to

voluminous evidence outside the administrative record.

       IV.    ETI’s Motion for Judicial Notice should be denied.

       The distinction between testimony and orders, outlined in Section I, is also

relevant with respect to ETI’s Motion for the Court to Take Judicial Notice. Judicial

Notice of agency decisions is different than judicial notice of evidence from previous

agency proceedings, in the same way that a court’s decision is eligible for judicial

notice while evidence from the proceeding leading to that decision is not. “It is

inappropriate for a trial judge to take judicial notice of testimony even in a retrial of

the same case.” 5 The distinction between testimony and final decisions of a court or

agency was explained by the Dallas Court of Appeals: “testimony is a mutable


4
  Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.); Carlisle v. Philip
Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied).
5
  Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(quoting Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex. Civ. App. —San Antonio 1985, writ
ref'd n.r.e.); see also In re J.C., 346 S.W.3d 189, 192-93 Tex. App.—Houston [14 Dist.], 2011,
no pet).
                                              4
product of human memory and subject to different interpretations. It does not carry

the high degree of indisputability required to justify taking judicial notice.”6

         Testimony also cannot be viewed in a vacuum, without the context of the

entire proceeding in which it was first offered. ETI has requested judicial notice be

taken of testimony from Docket No. 34800. This proceeding, which spanned over

two years, contains over 2500 filings. The Commission has already determined how

much weight to give to the evidence presented in that proceeding, as recorded in the

final order for Docket No. 34800. The fact that the final order does not mention the

testimony is telling. To suggest this Court should go to the interchange to view one

of the 2500 filings is to suggest the Court should supplant the Commission’s decision

on what weight the evidence should be given. Evidence offered by a party in

previous proceedings is neither reliable nor useful to this Court in this proceeding.

ETI’s Motion for Judicial Notice should be denied.

         V.      Conclusion

         WHEREFORE, PREMISES CONSIDERED, State Agencies request that

their Motion to Strike be granted, and that ETI’s Motion for the Court to Take

Judicial Notice be denied. State Agencies also pray for any further relief to which

they may be entitled.




6
    Garza v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. ref'd)
                                                5
Dated: May 13, 2015
                      Respectfully submitted,

                      KEN PAXTON
                      Attorney General of Texas

                      CHARLES E. ROY
                      First Assistant Attorney General

                      JAMES E. DAVIS
                      Deputy Attorney General for Civil Litigation

                      DAVID A. TALBOT, JR.
                      Chief, Administrative Law Division

                      /s/ Sara R. Hammond
                      Katherine H. Farrell
                      State Bar No. 24032396
                      Sara R. Hammond
                      State Bar No. 24081003
                      Assistant Attorneys General
                      OFFICE OF THE TEXAS ATTORNEY GENERAL
                      Administrative Law Division
                      P.O. Box 12548
                      Austin, Texas 78711
                      Telephone: (512) 475-4173
                      Facsimile: (512) 320-0167
                      E-mail: katherine.farrell@texasattorneygeneral.gov
                                sara.hammond@texasattorneygeneral.gov

                      Counsel for Appellee State Agencies




                                  6
                         CERTIFICATE OF SERVICE
      I certify that a true and correct copy of State Agencies Reply to ETI’s
Response to State Agencies’ Motion to Strike and Response to ETI’s Motion for the
Court to Take Judicial Notice was transmitted by electronic filing on the 13th day of
May, to the parties of record as listed below:


ENTERGY TEXAS, INC.,                  John F. Williams
                                      Marnie A. McCormick
Appellant                             DUGGINS WREN MANN & ROMERO, LLP
                                      One American Center
                                      600 Congress Suite 1900
                                      Austin, Texas 78767
                                      Telephone: (512) 744-9300
                                      Facsimile: (512) 744-9399
                                      jwilliams@dwmrlaw.com
                                      mmccormick@dwmrlaw.com



OFFICE OF PUBLIC                      Ross Henderson
UTILITY COUNSEL,                      Assistant Public Counsel
                                      OFFICE OF PUBLIC UTILITY COUNSEL
Appellee                              1701 N. Congress Avenue
                                      Suite 9-180
                                      P.O. Box 12397
                                      Austin, Texas 78711-2397
                                      Telephone: (512) 936-7500
                                      Facsimile: (512) 936-7525 or 936-7520
                                      ross.henderson@opuc.texas.gov




                                          7
PUBLIC UTILITY      Elizabeth Sterling
COMMISSION          Assistant Attorney General
OF TEXAS,           OFFICE OF THE ATTORNEY GENERAL
                    Environmental Protection Division
Appellee            P.O. Box 12548, Capitol Station
                    Austin, Texas 78711-2548
                    Telephone: (512) 475-4152
                    Facsimile: (512) 320-0911
                    Elizabeth.Sterling@texasattorneygeneral.gov

TEXAS INDUSTRIAL    Rex D. Van Middlesworth
ENERGY CONSUMERS,   Benjamin Hallmark
                    THOMPSON KNIGHT, LLP
Appellee            98 San Jacinto Blvd, Ste. 1900
                    Austin, Texas 78701
                    Telephone: (512) 469.6100
                    Facsimile: (512) 469.6180
                    rex.vanm@tklaw.com
                    benjamin.hallmark@tklaw.com


                     /s/ Sara R. Hammond
                     Sara R. Hammond
                     Assistant Attorney General




                       8
