                                                                                            ACCEPTED
                                                                                        03-14-00706-CV
                                                                                                5125236
                                                                             THIRD COURT OF APPEALS
                                                                                        AUSTIN, TEXAS
                                                                                    5/1/2015 4:09:57 PM
                                                                                      JEFFREY D. KYLE
                                                                                                 CLERK
                               No. 03-14-00706-CV
__________________________________________________________________
                                                           FILED IN
                                                    3rd COURT OF APPEALS
                        IN THE COURT OF APPEALS         AUSTIN, TEXAS
                    FOR THE THIRD DISTRICT OF TEXAS 5/1/2015 4:09:57 PM
                             AUSTIN, TEXAS            JEFFREY D. KYLE
                                                            Clerk
__________________________________________________________________
                              ENTERGY TEXAS, INC.,
                                   Appellant,
                                         v.
              PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.,
                              Appellees.
__________________________________________________________________

    Appealed from the 345th Judicial District Court of Travis County, Texas
            The Honorable Amy Clark Meachum, Judge Presiding
                 Trial Court Cause No. D-1-GN-13-002623
__________________________________________________________________

       STATE AGENCIES’ MOTION TO STRIKE PORTIONS OF
                   APPELLANT’S REPLY BRIEF
__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

      Pursuant to Texas Rules of Appellate Procedure § 10.1 and § 38.1(f), Appellee

State of Texas Agencies and Institutions of Higher Education (State Agencies) files

this Motion to Strike Portions of Appellant’s Reply Brief, and in support thereof

shows as follows:

      State Agencies move to have Appendices A and B to Appellant’s Reply Brief

stricken because they are outside the appellate record and impermissibly lack

specific citations. State Agencies further move to have a certain document, which is

                                         1
not designated as an appendix but is appended to Appellant’s Reply Brief as part of

“AR and PUC material,” stricken for the same reasons. Specifically, the excerpt of

the Direct Testimony of Susan Goodfriend from Public Utility Commission (PUC)

Docket No. 28840 (Goodfriend testimony) cannot be considered by this Court and

should be stricken.

      I.     Introduction

      Appellant, Entergy Texas, Inc. (ETI or Entergy) filed an initial brief and a

reply brief in this appeal that, combined, include over 1500 pages of documentation

purporting to support its arguments. Some of these documents are listed as

appendices while others are simply attached to the briefs without such designation.

      Appendices A and B to Appellant’s Reply Brief contain the direct testimony

of the same expert witness in PUC Docket Nos. 34800 and 37744, respectively - two

dockets that are not a part of this appeal or part of the administrative record before

this Court. Appellant’s Reply Brief also includes 857 pages of additional material

following identified appendices, denoted only in the bookmarks of the electronic

version of the reply brief under the heading “AR & PUC Materials.” This material

contains, among other items, an excerpt from the Direct Testimony of expert witness

Susan Goodfriend from PUC Docket No. 28840 (a docket also not connected to this

appeal).




                                          2
         Within its reply brief, Entergy cites to its appendices on pages 17 and 18, and

to the Goodfriend testimony on pages 25-26, to support certain assertions. These

three documents (Appendix A, Appendix B, and the Goodfriend testimony,

collectively referred to as “challenged testimonies”) and portions of Entergy’s reply

brief that rely on them are the subject of this Motion.

         Under Texas Rule of Appellate Procedure § 38.9(b), if the court determines

that a case has not been properly presented, or that law and authorities have not been

properly cited in the briefs, it may make any order necessary for satisfactory

submission of the case. For the reasons set out below, the challenged testimonies and

assertions relying thereon are not properly before this Court and cannot be

considered. An order striking the challenged testimonies and related portions of

Appellant’s Reply Brief is proper.

         II.    The challenged testimonies are outside the administrative record.

         This court is necessarily limited as to what evidence it can consider in an

appeal of a district court decision. The Supreme Court of Texas established in Sabine

Offshore Service, Inc. v. The City of Port Arthur1 that the appellate record sets those

limits. In Sabine, the Supreme Court reversed a decision by the Court of Civil

Appeals because the decision was based on an affidavit that had not been presented

in the trial court, and therefore was not a part of the appellate record. The Court


1
    595 S.W.2d 840 (Tex. 1979).
                                            3
stated, “Affidavits outside the record cannot be considered by the Court of Civil

Appeals for any purpose other than determining its own jurisdiction.”2 This holding

has been affirmed and expanded since,3 and case law still confirms that an appellate

court may only consider the record presented to it.4

       Attaching a document as an appendix does not modify these limitations. A

court cannot consider evidence cited in a brief and attached as an appendix if that

evidence is not formally included in the appellate record.5 Instead, such evidence

should be excluded from the court’s consideration altogether. “Material outside the

record that is improperly included in or attached to a party’s brief may be stricken.”6

       Pursuant to Texas Rule of Appellate Procedure § 34, the appellate record in

this matter was properly filed upon appeal to this Court. In compliance with Texas

Rule of Appellate Procedure § 36, included in the appellate record was the

administrative record of the PUC proceeding underlying the district court decision.

No party objected that the administrative record was at all incomplete.

       Nonetheless, Entergy cites to and appends testimony that is not a part of the

appellate record in its reply brief. Appellant cites to expert witnesses’ testimony


2
  Id. at 841.
3
  Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas 1987, no writ)
(“The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the
record on appeal and, thus, the documents cannot be considered.”).
4
  In re: M.S., 115 S.W.3d 534, 546 (Tex. 2003) (“this Court—or any appellate court—may only
consider the record presented to it”).
5
  Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.—Dallas 2006, no pet.)
6
  Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 501 (Tex. App.—Austin 1991, writ denied).
                                               4
from Docket Nos. 34800, 37744, and 28840. Regardless of the purpose or content

of these documents, the fact that they were not included in the administrative record

renders them improper for consideration by this Court. As such, the documents

should be stricken, as should portions of Appellant’s Reply Brief that rely on those

documents. Specifically, at pages 17 and 18, the entirety of the content in the bullet

points referencing Docket Nos. 34800 7 and 377448 should be stricken and

disregarded by this Court. Similarly, at pages 25 and 26, the excerpt relying on the

Goodfriend testimony 9 should also be stricken.

       III.   Appellant’s citations do not contain specific information required
              for the parties or the court to utilize the challenged testimonies.

       Lastly, Appellant’s references to the testimony offered in the appendices

include no specific citation to exactly what the testimony allegedly shows and where

it can be found. Instead, on pages 17-18 of Appellant’s Reply Brief, Entergy

references each testimony without qualification. Appellant simply points to the

entirety of the two testimonies, a total of roughly fifty pages. As the Supreme Court

of Texas has found, it “has never been considered part of an appellate court’s duties

in conducting judicial review” to “search the record for evidence itself.”10 More

recently, the Dallas Court of Appeals has recognized this tenet still stands,

7
  From “In Docket No. 34800, ETI’s …” through “… on Remand);” on page 17-18.
8
  From “In Docket No. 37744, ETI …” through “Hartzell, PhD);” on page 18.
9
  From “Dr. Goodfriend’s Testimony was 117 …” through “it concerned the quality-of-service
issue.”
10
   Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994)
                                             5
explaining that it is not the duty of a Court of Appeals to wade through a voluminous

record to verify an appellant’s claim. 11 “A general reference to a voluminous record

that does not direct the [] court and parties to the evidence on which [appellant] relies

is insufficient.”12 Entergy’s citations to the challenged testimonies are similarly

insufficient.

       Appellant has offered these pieces of testimony among countless pages of

other documentation, without providing a simple citation as to where to find the

evidence purportedly verifying its assertions. This is an improper manner of bringing

evidence before the court, and therefore, the appendices should be stricken.

       IV.      Prayer

       WHEREFORE, PREMISES CONSIDERED, State Agencies pray that this

Court strike from the record:

       1) Appendix A of Appellant’s Reply Brief;

       2) Appendix B of Appellant’s Reply Brief;

       3) Two paragraphs on pages 17 and 18 of Appellant’s Reply Brief that

          reference Docket No. 34800 and Docket No. 37744;

       4) Excerpt of Direct Testimony of Susan Goodfriend, Docket 28840,

          appended to Appellant’s Reply Brief but not labeled as an appendix; and


11
   Hall v. Douglas, 380 S.W.3d 860, 868 (Tex. App—Dallas 2012, no pet.) (citing Fredonia
State Bank c. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283 (Tex. 1994)).
12
   Aguilar v. Trujillo, 162 S.W.3d 839, 855 (Tex. App.—El Paso 2005, pet. denied).
                                             6
      5) The portion of Appellant’s Reply Brief that relies on the excerpt of Direct

         Testimony of Susan Goodfriend, pages 25-26.

State Agencies also pray for any further relief to which they may be entitled.

Dated: May 1, 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



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                      CERTIFICATE OF CONFERENCE


      I certify that I contacted counsel for all parties of record and asked whether
they would oppose this motion. Counsel for Texas Industrial Energy Consumers
takes no position on the motion; Public Utility Commission of Texas and Office of
Public Utility Counsel do not oppose the motion. Counsel for Entergy Texas, Inc.
opposes the motion.




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




                         CERTIFICATE OF SERVICE
      I certify that a true and correct copy of State Agencies Motion to Strike
Portions of Appellant’s Reply Brief was transmitted by electronic filing on the 1st
day of May, to the parties of record as listed below:




                                          8
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

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




                          9
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




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