      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00418-CV



                   Office of Public Utility Counsel, State of Texas, and Cities
                               of Abilene and Vernon, Appellants

                                                   v.

                         Public Utility Commission of Texas and Mutual
                                  Energy WTU, LP, Appellees


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
          NO. GN203585, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Office of Public Utility Counsel, the State of Texas, and the Cities of Abilene

and Vernon appeal from the district court’s judgment affirming the decision of the Public Utility

Commission in this ratemaking proceeding concerning the adjustment of the fuel-factor portion of

the price-to-beat of Mutual Energy WTU, LP. Appellants raise several issues that we have discussed

and resolved in favor of the district court’s affirmance of the Commission’s decision in Cities of

Alvin v. Public Utility Commission, No. 03-03-00386-CV (Tex. App.—Austin Aug. 26, 2004).

There are some factual differences between that case and this one due to the differences in the parties

involved; for example, the ten-day market period measured differs, the percentage increase in the

fuel factor differs, and the appellant cities request different amounts of expenses be reimbursed. But

the issues raised are essentially the same; indeed, some parties have filed identical or nearly identical
briefs in the two cases. Accordingly, the discussions and resolutions of the issues raised in Cities

of Alvin apply to the issues raised in this appeal.

               Appellants in this case also challenge the district court’s refusal to allow discovery

regarding the energy and gas purchase contracts of Mutual Energy WTU, LP. We review discovery

rulings by the Commission for an abuse of discretion. Southwestern Bell Tel. Co. v. Public Util.

Comm’n of Tex., 31 S.W.3d 631, 640 (Tex. App.—Austin 2000), aff’d sub nom. Cities of Austin,

Dallas, Ft. Worth & Hereford v. Southwestern Bell Tel. Co., 92 S.W.3d 434, 446 (Tex. 2002).

Appellants state that they wanted this evidence to better illustrate the market prices of gas and energy

and the adequacy of the existing fuel factor. We have determined that the Commission acted within

its discretion by adopting the NYMEX index as the sole measure of the market price of gas and

energy and that the provider’s actual contract prices paid for gas and energy do not illuminate the

market price. See Cities of Alvin, slip op. at 17-21. The Commission did not err and appellants were

not harmed by the prohibition of discovery into this area.

               We conclude that appellants have not shown error in this case. We affirm the district

court’s affirmance of the Commission’s decision.




                                               Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Pemberton

Affirmed

Filed: August 26, 2004

                                                      2
