

Opinion issued April 19, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00050-CV
———————————
Tara Partners, Ltd., Appellant
V.
CenterPoint
Energy Resources Corporation, Appellee

 

 
On Appeal from the 190th District Court
Harris County, Texas

Trial Court Case No. 2010-31083
 

 
O P I N I O N
          Appellant,
Tara Partners, Ltd. (“Tara Partners”), challenges the trial court’s dismissal without
prejudice of its suit pursuant to the plea to the jurisdiction of appellee, CenterPoint Energy Resources Corp. (“CenterPoint”).  In its sole issue on appeal, Tara Partners
argues that the trial court erred in granting CenterPoint’s
plea to the jurisdiction and in dismissing its case.
          We affirm.
                                                                                                                                                                
Background
Tara Partners sued “CenterPoint
Energy” for breach of contract, alleging that CenterPoint
had billed Tara Partners for more natural gas than it actually used.  Specifically, Tara Partners argued that CenterPoint “has materially breached . . . contractual
arrangements . . . because [it] has, with respect to substantial portions of
the period ranging from November 2009 through February 2010, invoiced [Tara
Partners] for the price of more cubic feet of natural gas than [Tara Partners]
actually consumed.”  Tara Partners
requested that the trial court “retroactively correct [CenterPoint’s]
bills for natural gas” and award it damages in the amount it was required to
overpay.
CenterPoint Energy, Inc. filed a
plea to the jurisdiction and a verified denial asserting that it was not liable
in the capacity alleged by Tara Partners. 
Tara Partners subsequently amended its pleading to add appellee, CenterPoint, as a defendant, and it non-suited CenterPoint Energy, Inc.
CenterPoint filed its own plea
to the jurisdiction, arguing that the trial court lacked jurisdiction over the
case because the Texas Utilities Code has established a regulatory scheme that
confers exclusive jurisdiction for claims regarding rate disputes and refunds
for overcharges on the Texas Railroad Commission or on the municipality
involved.  See Tex. Util.
Code Ann. §§ 101.001–105.051 (Vernon 2007
& Supp. 2011).  
Tara Partners responded, arguing that, because its suit is
based on a private contract, no administrative regulation of natural gas rates
and services applies to its claim.  It
also stated that it attempted to file a complaint with the Texas Railroad
Commission, which dismissed the complaint.  Tara Partners attached the letter it received
from the Railroad Commission.  The letter
provided that it was in reference to the “Request for an Informal Complaint by
Small Commercial Customer Tara Partners, Ltd. Against CenterPoint Energy.” 
The letter stated that Tara Partners’ complaint, which it determined
involved a billing dispute, “is not subject to the informal complaint process,
which is reserved for complaints over natural gas transmission discrimination
issues.”  The letter further stated that
“consumer bill complaints [are handled] through the Market Oversight Section’s
consumer complaint function,” but it concluded, “Since the dispute is the
subject of a lawsuit, the matter has proceeded beyond this Division’s ability
to facilitate a resolution.”
The trial court granted CenterPoint’s
plea to the jurisdiction and dismissed Tara Partners’ claims without
prejudice.  This appeal followed.
                                                                                                                                                                         
Analysis
In its sole issue, Tara Partners argues that the trial
court erred in granting CenterPoint’s plea to the
jurisdiction.
A.              
Standard of Review
Subject-matter jurisdiction is essential to the authority
of a court to decide a case.  Tex. Ass’n
of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  The plaintiff bears the burden of alleging
facts affirmatively showing that the trial court has subject-matter
jurisdiction.  Id. at 446.  The absence of subject-matter jurisdiction
may be raised by a plea to the jurisdiction. 
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
554 (Tex. 2000).
Whether a trial court has subject-matter jurisdiction is a
question of law and is reviewed de novo. 
See Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  When conducting a de novo review, the
appellate court exercises its own judgment and redetermines
each legal issue, giving no deference to the trial court’s decision.  Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).
In deciding a plea to the jurisdiction, a court may not
weigh the claims’ merits, but must consider only the plaintiff’s pleadings and
the evidence pertinent to the jurisdictional inquiry.  Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002).  The court of appeals must
take the allegations in the petition as true and construe them in favor of the
pleader.  Tex. Ass’n of Bus., 852
S.W.2d at 446.
CenterPoint asserts that the City
of Houston, as the municipality where Tara Partners’ gas service is provided, and/or
the Texas Railroad Commission have exclusive jurisdiction.  “An agency has exclusive jurisdiction when
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) (citing Subaru
of Am. Inc. v. David McDavid Nissan, Inc., 84
S.W.3d 212, 221 (Tex. 2002) and Cash Am.
Int’l, Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex. 2000)).  If an agency has exclusive jurisdiction, a
party must exhaust all administrative remedies before seeking review of the
agency’s action, and, until the party has done so, the trial court lacks
subject-matter jurisdiction and must dismiss any claim within the agency’s
exclusive jurisdiction.  Id. at 321–22.  Whether an agency has exclusive jurisdiction
is a question of law we review de novo.  See id. at 322; David McDavid
Nissan, 84 S.W.3d at 222.
B.              
Analysis
As Tara Partners argues, there is a constitutional
presumption that district courts are authorized to resolve disputes.  See In
re Entergy Corp., 142 S.W.3d at 322 (citing Tex. Const. art.
V, § 8).  We
also observe that administrative agencies “may exercise only those powers the
law confers upon them in clear and express statutory language and those
reasonably necessary to fulfill a function or perform a duty that the
Legislature has expressly placed with the agency.”  Id.  Thus, we must determine whether, as CenterPoint argues, “the ‘Constitution or other law’ conveys
exclusive, appellate, or original jurisdiction on another court or
administrative agency.”  See id.  Whether the Texas Railroad Commission and/or the
City of Houston has exclusive jurisdiction over Tara Partners’ claim depends on
statutory interpretation.  See id. (citing
David McDavid
Nissan, 84 S.W.3d at 221).  
“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.’”  Id. (quoting David McDavid Nissan, 84 S.W.3d at 221).  When construing a statute, our objective is
to determine and give effect to the Legislature’s intent.  Id.
(citing City of San Antonio v. City of
Boerne, 111 S.W.3d 22, 25 (Tex. 2003)). 
We look to the plain and common meaning of the statute’s words, and when
the statute’s meaning is unambiguous, we interpret that statute according to
its plain language.  Id. (quoting State v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)).
The legislature enacted the Gas Utility Regulatory Act (“GURA”)
“to establish a comprehensive and adequate regulatory
system for gas utilities to assure rates, operations, and services that are
just and reasonable to the consumers and to the utilities.”  See Tex. Util. Code Ann. §§ 101.001–.002 (Vernon
2007) (“Gas utilities are by definition monopolies in the areas they serve. . .
.  Public agencies regulate utility
rates, operations, and services as a substitute for competition.”).  GURA provides:
(a)  The
railroad commission has exclusive original jurisdiction over the rates and
services of a gas utility:
 
   (1) that distributes natural gas or synthetic natural gas in:
 
               (A)       areas outside a
municipality; and
 
(B)       areas inside a municipality that surrenders its jurisdiction
to the railroad commission under Section 103.003; and
 
(2) that transmits,
transports, delivers, or sells natural gas or synthetic natural gas to a gas
utility that distributes the gas to the public.
 
(b)  The
railroad commission has exclusive appellate jurisdiction to review an order or
ordinance of a municipality exercising exclusive original jurisdiction as
provided by this subtitle.
 
Id. § 102.001 (Vernon 2007).
          Regarding the jurisdiction of a
municipality, GURA provides:
To
provide fair, just, and reasonable rates and adequate and efficient services,
the governing body of a municipality has exclusive original jurisdiction over
the rates, operations, and services of a gas utility within the municipality,
subject to the limitations imposed by this subtitle,[1] unless the municipality
surrenders its jurisdiction to the railroad commission under Section 103.003.
 
Id. § 103.001 (Vernon 2007).
          GURA
defines “gas utility” as including “a person or river
authority that owns or operates for compensation in this state equipment or
facilities to transmit or distribute combustible hydrocarbon natural gas or
synthetic natural gas for sale or resale in a manner not subject to the
jurisdiction of the Federal Energy Regulatory Commission under the Natural Gas
Act (15 U.S.C. Section 717 et seq.). . . .”  Id. § 101.003(7) (Vernon Supp. 2011).  A “person” includes “an
individual, a partnership of two or more persons having a joint or common
interest, a mutual or cooperative association, a limited liability company, and
a corporation.”  Id. § 101.003(10).  A “rate” is defined as:
(A)                       
any compensation, tariff, charge, fare, toll, rental, or
classification that is directly or indirectly demanded, observed, charged, or
collected by a gas utility for a service, product, or commodity described in
the definition of gas utility in this section; and
 
(B)                        
a
rule, regulation, practice, or contract affecting the compensation, tariff,
charge, fare, toll, rental, or classification.
 
Id. § 101.003(12).  Finally, GURA provides that “service”
has
its broadest and most inclusive meaning. 
The term includes any act performed, anything supplied, and any
facilities used or supplied by a gas utility in the performance of the
utility's duties under this subtitle to its patrons, employees, other gas utilities,
and the public.  The term also includes
the interchange of facilities between two or more gas utilities.
 
Id. § 101.003(14).  
          The
statutory description of GURA as “comprehensive” demonstrates the Legislature’s
intent that GURA encompass all or virtually all pertinent considerations
involving gas utilities operating in Texas. 
See id. §§ 101.001–.002; cf. In re
Entergy Corp., 142 S.W.3d at 323 (construing essentially identical language
of the Public Utility Regulatory Act (“PURA”)).[2]  Furthermore, sections
102.001 and 103.001 grant “exclusive original jurisdiction” over the rates and
services to the municipality or to the Railroad Commission when no municipality
is involved.  See Tex. Util.
Code Ann. §§ 102.001, 103.001.  
Tara Partners’ dispute involves the amount it was billed
for natural gas provided by CenterPoint.  CenterPoint is a
corporation “that owns or operates for compensation
in this state equipment or facilities to transmit or distribute combustible
hydrocarbon natural gas or synthetic natural gas for sale,” and, thus, it is a
“gas utility” as defined by GURA.  See id. §§ 101.003(7), (10).  A “rate” includes any
charge demanded or collected by a gas utility “for a service, product, or
commodity described in the definition of gas utility,” including a “practice[] or contract affecting the compensation, tariff,
charge, fare, toll, rental, or classification.” 
See id. § 101.003(12); see also id. § 101.003(14) (giving
“service” its “broadest and most inclusive meaning,” including “anything
supplied” by gas utility “in the performance of the utility’s duties under this
subtitle to its patrons”).  Thus, Tara
Partners’ claim that CenterPoint incorrectly charged
it for natural gas falls under the statutory definitions of “rate” or “service”
over which the municipality or Railroad Commission has exclusive original
jurisdiction.  See id. §§ 102.001, 103.001; cf. In re Entergy Corp., 142 S.W.3d at 323–24 (construing
essentially identical language of PURA and concluding that Legislature expressed
clear intention that Public Utility Commission have exclusive jurisdiction over
dispute between Entergy and ratepayers).[3]
Because the municipality—or, in the event that the
municipality has surrendered its jurisdiction, the Railroad Commission—has exclusive
jurisdiction over this claim, Tara Partners was required to exhaust all
administrative remedies before seeking review of the agency’s action in the
district court.  See In re Entergy Corp., 142 S.W.3d at 321.  It is undisputed that Tara Partners has not
pursued its claim with the municipality, nor has it pursued any appeal to the
Railroad Commission;[4]
thus, the trial court lacks subject-matter jurisdiction and properly dismissed
Tara Partners’ claim.  See id. at
321–22.
Tara Partners argues that GURA does not apply to its claim
because it is suing for breach of a private contract.  However, the plain language of GURA defines a
“rate” over which the municipality or Railroad Commission has exclusive
original jurisdiction as including a “contract affecting
the compensation, tariff, charge, fare, toll, rental, or classification”
charged by a gas utility.  See Tex.
Util. Code Ann. §
101.003(12).  
Tara Partners argues that the
Texas Supreme Court considered a city’s breach of contract lawsuit against a
gas utility “without remarking upon the absence of subject matter
jurisdiction.”  See S. Union Co. v. City of Edinburg, 129 S.W.3d 74, 76–77 (Tex.
2003).  However, Southern Union actually addressed the question of whether “gas
purchased by consumers within the City from companies affiliated with [the gas
utilities] is subject to the 4% franchise tax under [an applicable city
ordinance],” and the gas sales at issue were “direct sales” made by unregulated
“special marketing companies.”  Id. at 76.  Thus, this case is distinguishable from the
present case.  
We further disagree with Tara
Partners’ assertion that In re Entergy
Corp. “should be understood as contemplating that private contractual
disputes between private parties and utilities can be maintained as original
actions . . . commenced in the state district courts.”  The Texas Supreme Court rejected the
plaintiff’s argument that the dispute involved a private contract and did not
fall under the exclusive original jurisdiction provision in PURA.  In re Entergy Corp., 142 S.W.3d at 323–24.  The supreme court held
that the agreement at issue “affected the public interest and, more
importantly, was the basis for the [Public Utility Commission’s] regulatory
approval of” Entergy’s merger with another entity and was implemented by an
order of the Public Utility Commission.  See id. at
324.  Here, as we have already held, the
plain language of GURA provides that contracts affecting charges by a gas
utility are considered “rates” over which the municipality or Railroad Commission
has exclusive original jurisdiction, and Tara Partners’ claim falls within the
stated purpose of GURA’s regulations.  See Tex.
Util. Code Ann. § 101.003(12) (defining “rate”); id. § 103.001
(“To provide fair, just, and reasonable rates and adequate and efficient
services, the governing body of a municipality has exclusive original
jurisdiction over the rates, operations, and services of a gas utility within
the municipality. . . .”); see also In re
Entergy Corp., 142 S.W.3d at 322 (“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.’”).
Thus, we conclude that the trial court lacked subject-matter
jurisdiction over this claim, and its dismissal of the suit without prejudice
was proper.
                                                                                                                                                                   
Conclusion
We affirm the order of the trial court dismissing Tara
Partner’s suit.
 
 
                                                                   Evelyn
V. Keyes
                                                                   Justice

 
Panel
consists of Justices Keyes, Bland, and Sharp.
 




[1]           GURA further provides that the
administrative decisions of a municipality are appealable to the Texas Railroad
Commission and that decisions of the Railroad Commission are subject to
judicial review.  See Tex. Util. Code Ann.
§ 103.024 (Vernon
2007) (providing that municipality is entitled to judicial review of certain
decisions of Railroad Commission); id.
§§ 103.051–.053 (Vernon
2007) (providing for appeal of municipality decisions to Railroad Commission); id. § 105.001 (Vernon 2007) (providing
right to judicial review of decisions of Railroad Commission).


[2]           As analyzed by the Texas Supreme Court
in In re Entergy Corp., PURA provides
that its purpose is “to establish a comprehensive and adequate regulatory
system for electric utilities to assure rates, operations, and services that
are just and reasonable to the consumers and to the electric utilities.”  In re
Entergy Corp., 142 S.W.3d 316, 323 (Tex. 2004) (orig. proceeding) (quoting Tex. Util. Code Ann. § 31.001(a) (Vernon 2007)).


[3]           As analyzed by the Texas Supreme Court
in In re Entergy Corp., PURA provides
that the Public Utility Commission has “exclusive original jurisdiction over
the rates, operations, and services of an electric utility in (1) areas outside
a municipality; and (2) areas inside a municipality that surrenders its
jurisdiction to the Commission under Section 33.002.”  In re Entergy Corp., 142 S.W.3d at 323 (quoting Tex. Util. Code Ann.
§ 32.001 (Vernon 2007)).
 


[4]           After the trial court’s plenary power
expired, Tara Partners filed a second letter from the Railroad Commission
informing it that “[t]he Commission does not handle this type of complaint
through the Commission’s informal complaint process” and that “[t]he City of
Houston has original jurisdiction in setting rates and handling quality of
service issues for gas utilities within the city limits.”  We note that this letter does not create a
fact issue regarding whether Tara Partners has exhausted its administrative
remedies, because it remains undisputed that Tara Partners has not attempted to
pursue its claim with the applicable municipality.  See Tex. Util. Code Ann. § 103.001 (Vernon
2007) (providing that governing body of municipality has exclusive original
jurisdiction over rates, operations, and services of gas utility within municipality).  


