
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-08-00205-CV



Coastal Habitat Alliance, Appellant

v.

Public Utility Commission of Texas; Barry T. Smitherman, Chairman;
Kenneth W. Anderson, Jr., Commissioner; Donna L. Nelson, Commissioner;
Texas Gulf Wind LLC; PPM Energy, Inc.; and AEP Texas Central Company, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-07-004164, HONORABLE DARLENE BYRNE, JUDGE PRESIDING


 C O N C U R R I N G   AND   D I S S E N T I N G   O P I N I O N

		The question before us is whether the district court properly granted the pleas to
the jurisdiction filed by the Public Utility Commission and its Commissioners and the AEP
Texas Central Company. (1)  Contrary to the precedents of the Texas Supreme Court and this
Court, the majority affirms the district court's order and, in doing so, perpetuates a "failure of
justice" (2) that erodes confidence in the agency process and could easily have been resolved by the
Commission itself in carrying out its core functions. (3)  Because the allegations in the pleadings
filed by the Coastal Habitat Alliance were sufficient to invoke the district court's jurisdiction to
review the final order of the Commission under the Administrative Procedure Act, I would
reverse the district court's order in part and remand for further proceedings.
		The majority posits three basic conclusions:

(1)	The Administrative Procedure Act does not authorize a non-party such as
the Alliance to independently pursue judicial review of a final order or
decision of the Public Utility Commission;

(2)	Dismissal of the Alliance's claim for declaratory relief [was] proper
because, by statute, the denial of the Alliance's intervention was a matter
committed to the Commission's discretion and subject to review by
mandamus; [and]

(3)	Although a constitutional due process claim may be asserted by a non-party to an administrative proceeding, the Alliance has failed to allege the
deprivation of a vested property right as a result of the denial of its
intervention.

		For the reasons that follow, I would conclude that section 2001.171 of the APA
provides an independent right of judicial review of the Commission's final order.  Based on that
conclusion, I would also conclude that any remedy available under the UDJA would be
redundant of the remedies available under the APA and, therefore, I agree with the majority's
conclusion that the district court properly dismissed the Alliance's claims to the extent they were
brought under the UDJA. (4)  I also agree with the majority's conclusion that the Alliance has
failed to state a constitutional due process claim.  However, I disagree with the majority's
conclusion that the Commission's order denying the Alliance's motion to intervene in the
underlying administrative proceedings is subject to review only by mandamus.

Judicial Review Under the APA
		Relying on the supreme court's decision in Texas Department of Protective &
Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 173 (Tex. 2004), the majority
erroneously concludes that the Alliance cannot obtain judicial review under section 2001.171 of
the APA because section 15.001 of the Public Utility Regulatory Act expressly provides that
"[a]ny party to a proceeding before the [C]ommission is entitled to judicial review under the
substantial evidence rule."  Slip op. at 6-7 (citing Tex. Util. Code Ann. § 15.001 (West 2007))
(emphasis added).  A reading of section 15.001, coupled with a proper application of the
supreme court's decision in Mega Child Care, demonstrates that the Alliance has an independent
right of judicial review under section 2001.171 of the APA.
		 Section 2001.171 of the APA provides:

A person who has exhausted all administrative remedies available within a state
agency and who is aggrieved by a final decision in a contested case is entitled to
judicial review under this chapter.

Tex. Gov't Code Ann. § 2001.171 (West 2008).  Interpreting this provision in 2004, the supreme
court held that section 2001.171 of the APA provided an independent right of judicial review in
a contested case.  Mega Child Care, 145 S.W.3d at 173, 196 (citing Tex. Gov't Code Ann. §
311.016(4) (West 2005) ("'Is entitled to' creates or recognizes a right.")).  The supreme court's
holding was based in part on the statutory language in APA section 2001.178 that states, "This
subchapter [including sections 2001.171 through .178] is cumulative of other means of redress
provided by statute."  Id. at 173, 183 (citing Tex. Gov't Code Ann. § 2001.178 (West 2008)). 
The supreme court explained, however, that this independent right of judicial review was limited
to situations in which an agency's enabling act "neither specifically authorizes nor prohibits
judicial review of the decision."  Id. at 173.  The majority misreads this limitation, finding a
deliberate legislative choice where none exists.
		Section 15.001 of the PURA expressly provides judicial review only for "any
party to a proceeding before the [C]ommission."  Tex. Util. Code Ann. § 15.001 (emphasis
added).  As the majority recognizes, however, the Alliance was never admitted as a party to the
underlying administrative proceeding before the Commission.  Because it was not a party, the
Alliance cannot invoke section 15.001 of the PURA to obtain judicial review of the
Commission's final order.  But this does not preclude judicial review altogether.  The plain
language of section 15.001 does not specifically authorize judicial review by a non-party, nor
does it specifically prohibit judicial review by a non-party.  See id.  The absence of statutory
language with regard to non-parties is insufficient to create the presumption of nonreviewability. 
Applying the supreme court's precedent in Mega Child Care, then, I would hold that the
Alliance has an independent right of judicial review under section 2001.171 of the APA.  See
Mega Child Care, 145 S.W.3d at 173.
		This conclusion is consistent with this Court's decision in West v. Texas
Commission on Environmental Quality, 260 S.W.3d 256, 260-62 (Tex. App.--Austin 2008, pet.
denied).  Although this Court in West concluded that the APA did not provide an independent
right of judicial review, it did so because the water code expressly provided that a person was
entitled to judicial review of the agency's decision.  See id. at 260 (citing Tex. Water Code Ann.
§ 5.351(West 2000)).  This Court's decision in West followed the general rule established by the
supreme court in Mega Child Care and  Texas Natural Resources Conservation Commission v.
Sierra Club, 70 S.W.3d 809 (Tex. 2002), that courts look to an agency's enabling act to
determine the procedures for obtaining judicial review of the agency's decision unless the
enabling act is silent--i.e., it neither authorizes, nor specifically prohibits judicial review.  Mega
Child Care, 145 S.W.3d at 197; Sierra Club, 70 S.W.3d at 811.  In West, this Court concluded
that the APA did not provide an independent right of judicial review because section 5.351 of the
water code expressly provided for judicial review of the agency's decision.
		Contrary to this Court's reasoning in West, the majority concludes that "PURA is
not silent" because section 15.001 "specifically authorizes judicial review only for parties" and,
therefore, a non-party like the Alliance is not entitled to judicial review.  See slip op. at 6-7.  But
the majority injects into section 15.001 a prohibition against judicial review by a non-party
where none exists.
		The plain language of PURA section 15.001 allows a party to the proceeding to
seek judicial review of the Commission's decision.  See Tex. Util. Code Ann. § 15.001.  But
section 15.001 says nothing about judicial review of the Commission's decision by a non-party. 
Section 15.001 is therefore silent on the matter of judicial review by a non-party because it
neither authorizes judicial review by a non-party, nor does it prohibit judicial review by a non-party.  See Mega Child Care, 145 S.W.3d at 197.  Absent express statutory language prohibiting
judicial review, a legislative intent to do so must be established by specific statutory history or
other reliable evidence of intent, none of which is present in the record before us.  See id. at 199. 
A proper reading of section 15.001 of the PURA in conjunction with the supreme court's holding
in Mega Child Care, then, confirms that section 2001.171 of the APA provides an independent
right of judicial review by a non-party such as the Alliance.  See id. at 173, 197.  As to section
15.001 of the PURA, I would resolve legislative silence in favor of an independent right of
judicial review under section 2001.171 of the APA.
		Clinging to outdated precedent, the majority asserts that its holding is consistent
with this Court's prior holding in City of Port Arthur v. Southwestern Bell Telephone Company,
13 S.W.3d 841, 844 (Tex. App.--Austin 2000, no pet.), "that a non-party has no statutory right
to judicial review of a decision by the Public Utility Commission."  Slip op. at 7.  But the
majority's reliance on City of Port Arthur is misplaced because that case was decided four years
prior to the supreme court's decision in Mega Child Care and, therefore, this Court did not
consider whether section 2001.171 of the APA provided an independent right of judicial review
to a non-party. (5) 
		The question then is whether the Alliance has satisfied the requirements for
judicial review under section 2001.171.  By its plain language, section 2001.171 allows for
judicial review by (1) a person (2) who has exhausted all administrative remedies available
within a state agency (3) who is aggrieved by a final decision in a contested case.  The
Commission does not dispute that the Alliance is a person within the meaning of the statute or
that the Alliance was aggrieved by a final decision by the Commission in a contested case.  The
Commission challenges only whether the Alliance has exhausted its administrative remedies. (6)
		The Commission argues that, even if the APA provides an independent right of
judicial review, the Alliance failed to exhaust its administrative remedies because the Alliance
failed to comply with the APA prerequisites regarding motions for rehearing.  See Tex. Gov't
Code Ann. §§ 2001.145 (requiring timely motion for rehearing as prerequisite to appeal); .146
(requiring motion for rehearing to be filed within 20 days after the date of final agency order and
allowing for 45 days from date of final agency order for agency to act on motion for rehearing)
(West 2008).  Citing the supreme court's decision in Lindsay v. Sterling, 690 S.W.2d 560 (Tex.
1985), the Commission asserts that the Alliance's petition for judicial review was premature
under the APA because the Alliance filed its petition for judicial review before it filed a motion
for rehearing with the Commission and before the Commission either acted on the Alliance's
motion for rehearing or the motion was overruled by operation of law.  By failing to wait until
the Commission acted on its motion for rehearing or wait until the motion was overruled by
operation of law before filing its petition for judicial review, the Commission argues that the
Alliance failed to exhaust its administrative remedies and, therefore, the district court lacked
jurisdiction over the Alliance's petition for judicial review.
		Placing form over substance, the Commission's argument ignores two significant
factors applicable here:  (1) neither the APA nor the Commission's procedural rules require,
much less contemplate, that a non-party must file a motion for rehearing; and (2) the Alliance
had already filed a motion for rehearing challenging the Commission's denial of its motion to
intervene.  Because I conclude that, under the circumstances of this case, the APA does not
require a non-party like the Alliance to file a redundant motion for rehearing as a prerequisite for
judicial review, I would conclude that the Alliance has satisfied the exhaustion requirement.
		Section 2001.145 of the APA states that "a timely motion for rehearing is a
prerequisite to an appeal in a contested case."  See Tex. Gov't Code Ann. § 2001.145(a).  And
Texas courts, including this Court, have generally held that the failure to file a motion for
rehearing deprives a district court of jurisdiction in a suit for judicial review of an agency's
decision.  See Temple Indep. Sch. Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995); Vandygriff
v. First Fed. Sav. & Loan Ass'n of Breckenridge, 586 S.W.2d 841, 842 (Tex. 1979); Burke v.
Central Educ. Agency, 725 S.W.2d 393, 395-96 (Tex. App.--Austin 1987, writ ref'd n.r.e.); see
also Tex. Gov't Code Ann. § 311.034 (West Supp. 2008) ("Statutory prerequisites to a suit,
including the provision of notice, are jurisdictional requirements in all suits against a
governmental entity.").  However, the statutory scheme for filing a motion for rehearing
contemplates that one must have been a party to the underlying administrative proceeding in
order to file a motion for rehearing.  See Tex. Gov't Code Ann. § 2001.146(a) (specifying that a
party may file a motion for rehearing within 20 days of the date on which an agency order may
become final under section 2001.144).  This statutory scheme is consistent with the
Commission's own procedural rules, which preclude a non-party from filing a motion for
rehearing.  See 16 Tex. Admin. Code § 22.264(a) ("Only a party who has been granted
intervenor status may file a motion for rehearing." (Emphasis added.)).
		Because the Commission denied the Alliance's motion to intervene and overruled
the Alliance's appeal and motion for reconsideration of that decision, the Alliance was not a
party within the meaning of section 2001.146(a) of the APA or the Commission's rules.  See
Tex. Gov't Code Ann. § 2001.003(4) (defining "party" as "a person or state agency named or
admitted as a party").  16 Tex. Admin. Code § 22.103(b) (2008) ("Persons desiring to intervene
must file a motion to intervene and be recognized as a party under §22.104 of this title (relating
to Motions to Intervene) in order to participate as a party in a proceeding.").  As a non-party, the
Alliance was not permitted to file a motion for rehearing under the APA or the Commission's
rules.  See Tex. Gov't Code Ann. § 2001.146(a); 16 Tex. Admin. Code § 22.264(a).  Applying
the statutory scheme to the facts and circumstances of this case, I would conclude that the
Alliance, having already filed a motion for reconsideration, was not required to file a redundant
motion for rehearing, and I would reject the Commission's argument that the Alliance has failed
to exhaust its administrative remedies.
		The policy behind requiring parties to exhaust their available administrative
remedies 
is to encourage parties to resolve their dispute without resorting to litigation when an
administrative procedure has been provided for that purpose.  Vela v. Waco Indep. Sch. Dist., 69
S.W.3d 695, 702 (Tex. App.--Waco 2002, pet. withdrawn by agr.); Gregg County v. Farrar,
933 S.W.2d 769, 773 (Tex. App.--Austin 1996, writ denied) (citing Schroeder v. Texas Iron
Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991)).  This Court has recognized:

An eminently practical reason for requiring exhaustion of remedies is that the
complaining party may be successful in vindicating his rights in the
administrative process and never have to resort to court.  Notions of
administrative autonomy require further that the agency be given first opportunity
to discover and correct its own errors.
 
Texas Air Control Bd. v. Travis County, 502 S.W.2d 213, 215-16 (Tex. App.--Austin 1973, no
writ); see also McKart v. United States, 395 U.S. 185, 194 (1969).  
		With regard to the requirement that one must file a motion for rehearing before
seeking judicial review, the purpose of that requirement is to notify an agency of potential errors
in its order to allow the agency an opportunity to correct such errors before resorting to
litigation.  See Suburban Util. Corp. v. Public Util. Comm'n, 652 S.W.2d 358, 364-65 (Tex.
1983); Coalition for Long Point Pres. v. Texas Comm'n on Envtl. Quality, 106 S.W.3d 363, 373
(Tex. App.--Austin 2003, pet. denied).  Thus, even if the Alliance was required to file a motion
for rehearing to exhaust its administrative remedies, I submit that the Alliance's appeal to the
Commission from the director's order denying intervention and the Alliance's motion for
reconsideration of the Commission's order denying that appeal satisfied the Alliance's obligation
to file a motion for rehearing.  More importantly, the Alliance satisfied the underlying purpose of
the exhaustion doctrine by providing the Commission with an opportunity to correct any alleged
error before the Alliance resorted to litigation.  See Suburban Util. Corp., 652 S.W.2d at 364-65. 
In the absence of a statutory mandate and when it serves no valid purpose, a court should not
create unnecessary hoops through which a litigant must leap.
		This is consistent with the concept and structure of judicial review under section
2001.171 of the APA.  Unlike the provisions relating to motions for rehearing, section 2001.171
speaks in terms of "persons" not "parties."  See Tex. Gov't Code Ann. § 2001.171.  By its plain
language, section 2001.171 allows a person who has exhausted all administrative remedies
available within a state agency to seek judicial review of the agency's final decision.  Id.  Thus,
the Legislature has contemplated that a person, who is not a party to the underlying
administrative proceeding, may still seek review of the agency's final order.  Id.
		The Commission, however, faults the Alliance and argues on appeal that, in order
to exhaust its administrative remedies, the Alliance was required to file yet another motion for
rehearing regarding the denial of its intervention once the Commission issued the notice of
approval of the CCN application, while acknowledging that any motion for rehearing filed by the
Alliance would have been a nullity under the Commission's rules.  Stated differently, "[l]ike the
chess player who tries to win by sweeping the opponent's pieces off the table," (7) the Commission
uses the doctrine of exhaustion as both a sword and shield to avoid the Alliance's right to
judicial review of the Commission's order denying intervention.  But the Commission cannot
have it both ways.  As the supreme court recognized in City of Corpus Christi v. Public Utility
Commission, "concern for  efficient administrative procedure requires consideration of the
validity of interim orders only upon appeal from final orders."  572 S.W.2d 290, 299-300 (Tex.
1978).  The Commission's notice of approval was final as to the Alliance on the date it was
issued because as a non-party the Alliance was neither required nor permitted to file a motion for
rehearing.  See Tex. Gov't Code Ann. §§ 2001.145-146; 16 Tex. Admin. Code § 22.264(a).  For
these reasons, I would conclude that the Alliance satisfied its obligation to exhaust
administrative remedies and was not required to file yet another motion for rehearing, and I
would hold that the Alliance's petition properly invoked the jurisdiction of the district court. (8)

Jurisdiction under the UDJA
		Because I conclude that the APA provides an independent right of judicial
review, I would also conclude that an action for declaratory relief under the UDJA would be
redundant and, therefore, would not lie.  See Beacon Nat'l Ins. Co. v. Montemayor, 86 S.W.3d
260, 267 (Tex. App.--Austin 2002, no pet.) (a declaratory judgment action will not lie to
provide redundant remedies); Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d
906, 911 (Tex. App.--Austin 1998, pet. denied) (when statute provides avenue for attacking
agency order, declaratory judgment action will not lie to provide redundant remedies); Ben
Robinson Co. v. Texas Workers' Comp. Comm'n, 934 S.W.2d 149, 153 (Tex. App.--Austin
1996, writ denied) (same).  Accordingly, I agree with the majority's conclusion that the district
court properly dismissed the Alliance's claims to the extent they were brought under the UDJA,
but for different reasons than those expressed by the majority. (9)
		I disagree, however, with the majority's assertion that the Alliance is not entitled
to judicial review on the basis that the Commission's decision whether to permit the Alliance's
intervention was a matter of discretion.  While the UDJA may not provide an avenue of review
for the discretionary acts of state officials, see slip op. at 12 (citing City of El Paso v. Heinrich,
No. 06-0778, 2009 Tex. LEXIS 253, at *11 (Tex. May 1, 2009)), the APA states that a court
"shall reverse or remand the case for further proceedings if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions, or decisions
are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted
exercise of discretion."  Tex. Gov't Code Ann. § 2001.174(2)(F) (West 2008).  Thus, the APA
expressly provides an avenue for judicial review of discretionary acts of a state agency.
Due Process and Deprivation of a Vested Right
		I also agree with the majority's conclusion that the Alliance has not alleged a
deprivation of a vested property right or otherwise asserted a violation of its constitutional rights
and, therefore, is not entitled to judicial review on the ground that the Commission's order
violates Due Process.  See, e.g., Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19
S.W.3d 393, 397 (Tex. 2000).  On this point, the Alliance simply confuses the concepts of an
injury-in-fact necessary to confer standing, which the Alliance asserts through its allegations that
its members utilize the affected area and will be harmed by the Commission's approval of 
TCC's application for a CCN, and deprivation of a vested property right, which they do not
assert.  As the majority recognizes, the alleged harm necessary to confer standing may be
insufficient to demonstrate the deprivation of a vested property right entitled to constitutional
protection on the grounds of Due Process. (10) See slip op. at 16.

Review by Writ of Mandamus
		In a footnote at page 7 of its slip opinion, the majority suggests that the
Commission's denial of intervention was subject to review only by mandamus.  Slip op. at 7 n.6
(citing State v. Thomas, 766 S.W.2d 217, 218-20 (Tex. 1989) and noting that the Alliance does
not appeal the dismissal of its request for mandamus relief).  This suggestion is contrary to the
majority's conclusion that the Commission's denial of the Alliance's intervention was a
discretionary act.  
		If the majority is correct in its claim that the Commission's denial of the
Alliance's intervention was a discretionary act, then review by mandamus would not lie because
it is well established in Texas law that courts will not issue writs of mandamus to control or
revise the exercise of discretion by trial courts in the performance of purely judicial as
distinguished from ministerial acts.  See O'Meara v. Moore, 178 S.W.2d 510, 514 (Tex. 1944)
(orig. proceeding) (trial court cannot be compelled by mandamus to make particular findings);
Matlock v. Smith, 71 S.W. 956, 956-57 (Tex. 1903) (orig. proceeding) (judge cannot be
compelled by mandamus to enter a different judgment even if his judgment is erroneous);
Aycock v. Clark, 60 S.W. 665, 666 (Tex. 1901) (orig. proceeding) (where act calls for the
exercise of judicial discretion, mandamus will not lie to control that discretion).  Applying this
principle in the context of administrative proceedings, Texas courts also refrain from issuing
writs of mandamus to control the exercise of discretion as opposed to ministerial acts by an
administrative agency in adjudicative proceedings.  See Matlock, 71 S.W. at 957 ("[E]ven as to
an executive officer, if it be his duty to determine a question of fact, the courts will not control
his decision by a writ of mandamus.").
		The basic principle that mandamus will not lie to control the exercise of
discretion explains the supreme court's grant of mandamus relief in State v. Thomas, 766 S.W.2d
217, 218-20 (Tex. 1989).  In that case, the supreme court determined that the constitution
required that the Texas Attorney General be allowed to intervene in administrative proceedings
before the Commission to establish utility rates.  See id.  Because it was a ministerial act to allow
the attorney general to perform his constitutional duty--and not an exercise of judicial
discretion--the supreme court's grant of mandamus relief was appropriate.  Id.
		In this case, however, the majority contends that allowing the Alliance to
intervene in the underlying administrative proceedings was an act subject to the Commission's
discretion.  If the majority is correct in this contention, then the majority is incorrect to suggest
that the Commission's action denying intervention is subject to review by mandamus.  Compare
Thomas, 766 S.W.2d at 218-20, with Matlock, 71 S.W. at 957.
		Additionally, the majority's suggestion that the Commission's order denying
intervention is subject to review by mandamus would defeat the requirement that one must
exhaust administrative remedies before seeking review of agency decisions.  Because many
administrative decisions are subject to judicial review under either an agency's enabling act or
the APA, it is unnecessary to provide for such review by way of mandamus.  The supreme court
has consistently recognized that, where there is an adequate remedy by way of appeal, the
extraordinary remedy of mandamus is inappropriate.  See In re McAllen Med. Ctr., 275 S.W.3d
458, 462, 464-69 (Tex. 2008); Walker v. Packer, 827 S.W.2d 833, 841-42 (Tex. 1992); Iley v.
Hughes, 311 S.W.2d 648, 652 (Tex. 1958).  
		To allow mandamus review in the context of interim agency orders would also be
contrary to the supreme court's holding that an agency's interim orders are reviewable, if at all,
only upon appeal from final orders.  See City of Corpus Christi, 572 S.W.2d at 299-300. 
Although exceptions to the exhaustion doctrine exist, such exceptions do not compel the
availability of mandamus relief.  For these reasons, I disagree with the majority's conclusion that
the Commission's order denying the Alliance's intervention was subject to review only by
mandamus.

 CONCLUSION
		Because I conclude that the APA provides an independent right of judicial review
under the facts of this case, I respectfully dissent from the majority's conclusion that it does not. 
Albeit for different reasons, I agree with the majority's conclusions that the district court lacked
jurisdiction to review the Alliance's claims under the UDJA and properly dismissed those
claims.  I also agree with the majority's conclusions that the Alliance has not alleged the
deprivation of a vested property right or otherwise alleged the violation of a constitutional right
and, therefore, is not entitled to judicial review on the ground of Due Process.  However, I
disagree with the majority's conclusion that the Commission's order denying intervention was
subject to review only by mandamus.  For these reasons, I would reverse the district court's
order granting the pleas to the jurisdiction in part and remand for further proceedings.

						__________________________________________
						Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed:   July 8, 2009
1.   Because the interests of these parties are aligned, I refer to them collectively as the
"Commission" unless otherwise noted.
2.   See, e.g., Krippendorf v. Hyde, 110 U.S. 276, 285 (1884) (explaining that purpose of
allowing parties to intervene in legal proceedings is to prevent a "failure of justice").
3.   Recognizing "the Commission's liberal policy of intervention," then-Chairman Paul
Hudson stated in his dissent, "[T]he Commission's stance on intervention in CCN proceedings has
become too narrow and discourages a robust development of the record."  See Order Denying
Appeal of Order No. 5, at 4-5, Application of AEP TCC to Amend a CCN for a 345-KV Double
Circuit Transmission Line in Kenedy County, Texas, PUC Docket No. 34298 (Pub. Util. Comm'n
Oct. 29, 2007) (Paul Hudson, Chairman, dissenting), available at
http://interchange.puc.state.tx.us/WebApp/ Interchange/Documents/34298_53_566364.PDF.
4.   The majority suggests that review is improper under the UDJA because the Commission's
denial of the Alliance's intervention was a matter committed to the Commission's discretion.  See
slip op. at 10 (citing Railroad Comm'n v. Ennis Transp. Co., 695 S.W.2d 706 (Tex. App.--Austin
1985, writ ref'd n.r.e.)).  The APA, unlike the UDJA, expressly provides that a court "shall reverse
or remand" an agency order that prejudices substantial rights if the agency order is "arbitrary or
capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion." 
See Tex. Gov't Code Ann. § 2001.174(2)(F) (West 2008).  It is appropriate to observe that
discretionary choices of a tribunal are not to be left to a body's "inclination," but to its judgment,
which is guided by "sound legal principles."  Unites States v. Burr, 25 F. Cas. 30, 35 (D. Va. 1807)
(No. 14,692d) (Marshall, C.J.).  In any event, the question whether the Commission's denial of the
Alliance's intervention was an abuse of discretion goes to the merits of the Alliance's petition for
judicial review and is, therefore, not before us in this interlocutory appeal from the district court's
order granting the Commission's plea to the jurisdiction.
5.   Prior to the supreme court's holding in Texas Department of Protective & Regulatory
Services v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004), this Court had "repeatedly held that
[section 2001.171 of the APA] is a procedural provision that does not confer independent subject
matter jurisdiction on the district court."  See id. at 173 (quoting Eldercare Props., Inc. v. Texas
Dep't of Human Servs., 63 S.W.3d 551, 557 (Tex. App.--Austin 2001, pet. denied)); see also
Carrizales v. Texas Dep't of Protective & Regulatory Servs., 5 S.W.3d 922, 924 (Tex. App.--Austin
1999, pet. denied);  Employees Ret. Sys. v. Foy, 896 S.W.2d 314, 316 (Tex. App.--Austin 1995, writ
denied); Southwest Airlines v. Texas High Speed Rail Auth., 867 S.W.2d 154, 158 (Tex.
App.--Austin 1993, writ denied); Motorola, Inc. v. Bullock, 586 S.W.2d 706, 708-09 (Tex. Civ.
App.--Austin 1979, no writ).

	A careful reading of this Court's opinion in City of Port Arthur v. Southwestern Bell
Telephone Company, 13 S.W.3d 841 (Tex. App.--Austin 2000, no pet.), reflects that the case could
also have been decided on the ground that the City failed to exhaust its administrative remedies.  The
record of the underlying administrative proceeding at issue in City of Port Arthur was not before this
Court on appeal, and the facts were taken from the parties' briefs.  See 13 S.W.3d at 842 n.1.  The
opinion states that the City "complains that the district court erred in denying it permission to
intervene in [Southwestern Bell]'s suit for judicial review," not that the Commission erred in
striking the City's intervention in the underlying administrative proceeding.  See id. at 843.  Nothing
in the opinion suggests that the City in that case, unlike the Alliance here, even attempted to
intervene in the underlying administrative proceeding.  Thus, having failed even to attempt to
participate in the underlying administrative proceeding, the City could not have claimed that it had
exhausted its administrative remedies and, therefore, would not have been entitled to judicial review
under section 15.001 of the PURA or section 2001.171 of the APA.  See In re Sw. Bell Tel. Co., L.P.,
235 S.W.3d 619, 624-25 (Tex. 2007) (if agency has exclusive jurisdiction to resolve dispute, party
must first exhaust administrative remedies before trial court has subject matter jurisdiction); Subaru
of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 227 (Tex. 2002) (until exhaustion
occurs, trial court must generally dismiss related litigation without prejudice).
6.   Because it concludes that section 15.001 of the PURA forecloses judicial review of the
Commission's decision by a non-party, the majority declines to "resolve these issues concerning the
APA."  See slip op. at 8 n.8.
7.   Ricci v. DeStefano, Nos. 07-1428 & 08-328, 2009 U.S. LEXIS 4945, at *133 (2009)
(Ginsburg, J., dissenting).
8.   Because I conclude that the Alliance was not required to file a motion for rehearing, I
would also conclude that the Commission's reliance on Lindsay v. Sterling, 690 S.W.2d 560 (Tex.
1985), is misplaced.  In that case, the supreme court determined that a district court lacked
jurisdiction over a petition for review filed before an agency acted on a pending motion for rehearing
or the motion was overruled by operation of law.  Id. at 563.  Since a motion for rehearing was not
required under the facts of this case, the supreme court's holding in Lindsay is simply inapposite.

	Alternatively, even if a motion for rehearing was required, the district court could have
abated the proceedings either to allow the agency an opportunity to act on the motion for rehearing
or, if the agency chose not to act, to permit the motion to be overruled by operation of law.  See, e.g.,
Subaru of Am., 84 S.W.3d at 228 (quoting American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801,
805 (Tex. 2001) (where "'impediment to jurisdiction could be removed, then the court may abate
proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured'")); cf. Tex.
R. App. P. 27.1(a) ("In a civil case, a prematurely filed notice of appeal is effective and deemed 
filed on the day of, but after, the event that begins the period for perfecting the appeal."); Newman
v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997) (applying former Tex. R. App. P. 58, now Tex. R.
App. P. 27.1); Aguirre v. Texas Dep't of Protective & Regulatory Servs., 917 S.W.2d 462, 465 (Tex.
App.--Austin 1996, no writ) (same).
9.   With regard to the Alliance's claim that the district court erred in denying the Alliance
leave to amend its pleadings to add a citation to the UDJA, I conclude this was not error based on
my previous conclusion that the Alliance was entitled to judicial review under the APA.  Because
relief under the UDJA would have been redundant of any relief available to the Alliance under the
APA, it was not error for the district court to disallow the pleading amendment.
10.   That is not to say that the Alliance's interest should be foreclosed from review altogether. 
As then-Chairman Paul Hudson explained in his dissent, the Alliance's concerns that the
environment will be adversely affected, while not based in property ownership, is a concern that
should have been examined by the Commission in the underlying administrative proceeding.  See
Order Denying Appeal of Order No. 5, at 5, supra.
