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CAUSE NO. 21-0093-A GOD’S PROPERTY MINISTRIES, IN THE DISTRICT COURT (Barney Joe Donalson, Jr. d/b/a) Plaintiff, SMITH COUNTY, TEXAS CHARLES HILL, INDIVIUALLY, and ONCOR ELECTRIC DELIVRY COMPANY LLC Defendant JUDICIAL DISTRICT DEFENDANTS’ PLEA TO THE JURISDICTION Defendant cor Electric Delivery Company Oncor”) files its Plea to the Jurisdiction and m the urt to dismiss this case without prejudice because (1) the Public Utility Commission of Texas (the PUC) s exclusive jurisdiction to initially resolve many issues underlying Plaintiff’s claims, and (2) Plaintiff has not exhausted his administrative remedies before the pertinent public agency. MMARY Plaintiffs sues Oncor for trespass, negligence and Fourth Amendment violations arising from Oncor s failure to provide electrical service after the City of Canton red tagged” the property (indicating repairs were needed before power could be safely restored) and subsequent investigations prompted by reports of theft of electricity. Oncor’ ies toward customers and even prospective or former customers such as the Plaintiff are governed by Oncor s Tariff and the substantive regulations promulgated by the Public Utility Commission of Texas (PU In accordance with well established precedent, Plaintiff s complaints should begin at the PUC, which has exclusive and primaryjurisdiction over these matters. This Court must dismiss this case without prejudice because lacks subject matter jurisdiction over Plaintiff’s claims. This is because the Texas Supreme Court repeatedly has made clear that, when a plaintiff’s claims involve issues within the exclusive jurisdiction of an administrative agency: (1) the plaintiff must exhaust his administrative remedies before that agency, allowing it to decide those issues within its exclusive jurisdiction, before seeking relief in a district court, even if his or her claim involves tort or statutory causes of action that the agency cannot decide or seeks money damages that the agency cannot award, and (2) a district court lacks subject tter jurisdiction over such a claim and must dismiss itwithout prejudice. The Supreme Court also has made clear that the Texas Public Utility Regulatory Act (PURA) gives the PUC “exclusive original jurisdiction” over Oncor’s “rates, operations, and services.” TILS ODE§§ 32.001(a), 33.001(a),and any claim involving such matters. As Plaintiff’s claims invoke Oncor’s “operations” and “services requesting initiat of electrical service and challenging Oncor s right to esearch a allegation of diversion (1) the PUC has exclusive jurisdiction over he claims, (2) Plaintiff is required to exhaust his administrative remedies before seeking relief in this Court, and (3) this Court lacks subje matter jurisdiction over Plaintiff’s claims and must dismiss this case without prejudice. FACTUAL BACKGROUND Plaintiff alleges that as the director of a ministry he purchased a nursing home in Caton Texas. He admits that insector for the City of Canton told him the electrical system for the nursing home was unsafe and red tagged the breaker box, indicatin that repairs were necessary before power could be estored to the property. Given the tagged dangerous condit in accordance with the Tariff, Oncor did n reconnect service. Based on calls from the City of Canton describing power on the property, and again in accordance with the Tariff and substantive regulations Oncor employees investigated to see if there was diversion of lectrical God’s Property v. Hill and Oncor: Plea to the Jurisdiction age service While Plaintiff characterizes these actions as a th Amendment violation, trespas and negligence, they are normal activities of an electrical utility dealing with a house with faulty wiring and allegations of electricaltheft. ENT AND AUTHORITY Oncor is a “public transmission and distribution utility” (TDU) within the meaning of Section 31.002(19) of PURA, see Oncor Elec. Util. Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018), and an “electric utility” within th aning of Section 31.002(6) of PURA. As a TDU, Oncor’s retail rates, services, and operations are governed by a tariff Oncor’s “Tariff for Retail Delivery Service” (the Tariff), which ultimately is approved by the PUC. Chaparral, 546 S.W.3d at 142 (“As regulated utility, Oncor is required to file a tariff with the PUC describing its rates, operations, and services.”) (citing PURA § 32.101). “Once the PUC approves the [T]ariff Oncor must comply with the [T]ariff’s requirements and apply its rate d provide its se rvices uniformly to all of its retail customers.” Id. at 142 (citing 16 Tex. Admin. Code § 23.3). A state agency, such as the PUC, “has exclusive jurisdiction when the Legislature has granted that agency the sole authori y to make an initial determination in a dispute.” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004)). When the agency has such jurisdiction, courts lack subject matter jurisdiction, eve the agency cannt resolve the entire dispute, until the plaintiff “has exhausted all administrative remedies before the agency.” Id. at 138 (quoting Entergy, 142 S.W.3d at 321 22)“The absence of subject matter jurisdiction may be raised by a plea t e jurisdiction . . . .” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because “a challenge to subject matter jurisdiction cannot be waived, it can be raised at any time.” Alfonso v. Skadden, 251 S.W.3d 52, God’s Property v. Hill and Oncor: Plea to the Jurisdiction age 55 (Tex. 2008); cord Dolez v. Dallas Cent . Appraisal Dist., 259 S.W.3d 331, 334 (Tex. App.Dallas 2008, no pet.). The PUC Has Exclusive Jurisdiction Over Plaintiff’s Claims Because They Involve Oncor’s “Operations” Or “Services.” A statute grants an agency exclusive jurisdictin when its “language clearly expresses the Legislature’s intent for the [agency] to have exclusive jurisdiction over matters the [statute] governs.” Chaparral, 546 S.W.3d at 138 (quoting Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 2123 (Tex. 2002)). Absent such an explicit grant, an agency may also have exclusive jurisdiction “when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to whi h the regulation is addressed.” Id. quoting In re Sw. Bell Tel. Co., 235 S.W.3d 25 (Tex. 2007)). In deciding whether such a scheme exists, “the statutory language is determinative.” quoting Entergy,142 S.W.3d at 322 23). PURA provides hat “the rates, operations, and services” of a TDU, such as Oncor, are regulated by the PUC. Thus, Section 32.001(a) of PURA gives the PUC “exclusive origin jurisdiction” over such matters Chaparral, 546 S.W.3d at 141; accord Isa v. CenterPoint Energy Hous. Elec., LL No. 03 CV, 2018 Tex. App. LEXIS 6923, at *6 7 (Tex. Houston Aug. 29, 2018, no pet. h.) (mem. op.) ( following Chaparral); Giovanni Homes Corp., 438 S.W.3d at 657 (cited with approval in Chaparral, 546 S.W.3d at 140); City of Houston, ex. App. LEXIS 10515, at *11 12, 17 cited with approval i aparral,546 S.W.3d at 140). Accordingly, Plaintiff’s claims fall within the exclusive jurisdiction of the PUC Chaparral, 546 S.W.3d at 141 (“[B]ecause Chaparral’s bre contract claim in this case complains of Oncor’s services, we conclude that the scope of the PUC’s exclusive jurisdiction encompasses that claim.”); accord Isa, 2018 Tex. App. LEXIS 6923, at *10 (holding, under God’s Property v. Hill and Oncor: Plea to the Jurisdiction age Chaparral, that the PUC had exclusive isdiction of the plaintiff’s DTPA claims because Chapter 17 of PURA governs an electric utility’s “fraudulent, unfair, misleading, deceptive, or anticompetitive practices”) o determine whether Plaintiff’s claims involve Oncor’s “operations” and “services,” those terms, as defined by PURA, must be applied to the claims. Chaparral, 546 S.W.3d at 139 (applying PURA’s definition of “service” in determining whether the plaintiff’s breach contract claim involved Oncor’s “services”); Giovanni Homes, 438 S.W.3d 644, 649, 65 58 (applying PURA’s definitions of “rate” and “service” in ermining whether the plaintiff’s breach contract and trespass claims involved Oncor’s “rates” or “services”); City of Houston, 2012 Tex. App. LEXIS 10515, at *11 (applying PURA’s definition of “service” in determining whether the plaintiff’s breach ontract claim involved a TDU’s “services”). Section 11.003(19) of PURA defines “service” as having “its broadest and most inclusive meaning. The term includes any act performed, anything supplied, and any facilities used or supplied by a public util in the performance of the utility’s duties . . ..” (emphasis added). Accord Chaparral, 546 S.W.3d at 139 (discussing the breadth of the term “services” as used by Sections 32.001(a) and 33.001(a) of PURA). Because PURA does not define “operations, e City of Allen v. Pub. Util. Comm’n, 161 S.W.3d 195, 207 (Tex. App.Austin 1990, no pet.), the term is given its ordinary meaning, TGS NOPEC Geophysical Co. v. Combs,340 S.W.3d 432, 439 (Tex. 2011) (“Undefined terms in a statute are typically given thei ordinary meaning . . . .”); In re Hall, 286 S.W.3d 925, 928 Tex. 2009) (same). “Operation,” in common parlance, means “[t]he act or process of operating or functioning[.]” The American Heritage Dictionary of the English Language 1268 (3d ed. 1992); ord https://www.dictionary.com/browse/operation (last visited on December 22, 2018) (defining “operation” as “an act or instance, process, or manner of functioning or operating”). God’s Property v. Hill and Oncor: Plea to the Jurisdiction age As noted by the Austin Court of Appeals: “While PURA does not define ‘oper tions,’ it has been observed that ‘the jurisdiction of the commission extends not only to rates . . . but to every aspect of an electric utility’s operation.’” City of Allen, 161 S.W.3d at 207 (emphasis added) (quoting Robert A. Webb, The 1975 Texas Publi Utility Regulatory Act: Revolution or Reaffirmation?, 13 Houston L. Rev. 1, 14 (1975)). Here, Plaintiff’s claims indisputably involve Oncor’s “operations” and “services” and, therefore, are within the PUC’s exclusive jurisdic ion and without this Court’s subject matter jurisdiction. For example, Plaintiff’s negligence, trespass a Fourth Amendment claims are based on Oncor’s refusal to reconnect electrical delivery service and investigati o see whether there was an unlawfl diversion of service. Of course, the question of whether Oncor was responsible for this clearly involves (1) Oncor’s “operations” because it implicates acts or processes relating to Oncor’s operating or functioning (e.g., the connection of lines and ring the integrity of its systems), and (2) Oncor’s “services” because it relates to acts Oncor is, or is not, required to perform (e.g., making connections to a customer s equipment) and the facilities its uses in the delivery anddistribution of elec tri ity (e.g., theconnections tothe property Plaintiff’s trespass claim also involves Oncor’s (1) “operations” because it concerns acts or processes relating to Oncor’s operating or functioning (e.g., the provision of electric service to the property and (2) Oncor’s “services” because itrelates to acts Oncor is required to perform (i.e., the provision of electric service to the property). E.g., Giovanni Homes, 38 S.W.3d 644, 61 (holding that the plaintiff’s claim alleging that Oncor trespassed on its property by providing service to it with an electrical line placed outside of Oncor easement involved Oncor’s “services”). The trespass claim also implicates the Tariff because the Tariff has a specific provision about easements for the provision of electric service to retail customers, like the Plaint , that is, Section 5.4.5. God’s Property v. Hill and Oncor: Plea to the Jurisdiction age Because Plaintiff’s claims involve Oncor’s “operations” and “services” as well as the Tariff, they clearly fall within the exclusive jurisdiction of the PUC, and Plaintiff must exhaust his administrative remedies before seeking relief from this Court, and the Court must dismiss this case for want of subject matter jurisdiction. E.g., Chaparral, 546 S.W.3d at 141 (“[B]ecause Chaparral’s breach ntra t claim in this case complains of Oncor’s services, we conclude that the scope of the PUC’s exclusive jurisdiction encompasses that claim. Accordingly, Chaparral was required to exhaust its administrative remedies before the PUC before seeking reli in istrict court.”); Isa, 2018 Tex. App. LEXIS 6923, at *10 (“Because Chapter 17 [of PURA] provides the PUC with exclusive jurisdiction over a consumer’s disputes with his electric utility . . . and provides the exclusive remedies available in such a d pute the PUC has exclusive jurisdiction over Isa’s dispute with CenterPoint and Ambit. Isa may not attempt to sidestep the administrative process, a process that he did not exhaust, by this independent suit for damages not authorized under PURA.”) (citaons mitted). The PUC’s Inability To Decide Plaintiff’s Tort Claims Or Award Plaintiff Damages Does Not Excuse Plaintiff From Exhausting His Administrative Remedies. While Plaintiff may argue that he is excused from exhaustig his administrative re medies because the PUC cannot decide plaintiff’s tort claims or award him damages, the Texas Supreme Court repeatedly has held that a plaintiff nonetheless must exhaust his or her administrative remedies nd allow the relevant public agency to decide those issues within its exclusive jurisdiction before bringing suit so that the district court can apply the agency’s findings and legal conclusions in resolving the plaintiff’s tort claims and awarding damage For example, the Texas Supreme Court recently rejected a plaintiff’s claim that itwas excused from exhausting its administrative remedies because the PUC neither could decide God’s Property v. Hill and Oncor: Plea to the Jurisdiction age whether Oncor had breached its contract with the plaintiff nor award the pl intiff damages for its breach because: PURA does not prevent Chaparral from obtaining the damages it seeks in the district court after the PUC has exercised its exclusive jurisdiction. We described this two step process in David McDavid Nissan, in which e held that the former Texas Motor Vehicle Commission Code granted exclusive jurisdiction to the former Texas Motor Vehicle Board to resolve claims and issues that the Code governed. We explained, however, that in “some instances,” the “statutory scheme ay necessitate that an administrative agency with exclusive jurisdiction make certain findings before a trial court may finally adjudicate a claim.” Under this “hybrid claims resolution process,” the agency must first exercise its exclusive jurisdicti d apply its unique expertise to resolve the issues that fall within its exclusive jurisdiction. The claimant must first “exhaust administrative remedies to obtain [the agency’s] decision” on those issues before filing suit to obtain relief the agency cannt provide. The agency’s findings are “subject to bstantial evidence review” in the courts, and the claimant may rely on those findings to establish its claim and obtain relief in the courts. Chaparral, 546 S.W.3d at 142 (quoting David McDavid Nissa S.W.3d at 217, 221, 222, 224, 224); accord McIntyre v. El Paso Indep. Sch. Dist., 499 S.W.3d 820, 824 (Tex. 2016) (“[W]hen claims are predicated on a matter within the Commissioner’s exclusive jurisdiction, exhaustion is required.”); Isa, 2018 Tex. App. EXIS 6923, at 89 (“Assuming that the hybrid claims resolution process applies here, Isa’s suit for damages relies on his assertions that appellees violated various PUC rules. Those claims of rules violations are within the exclusive jurisdiction of the UC. However, Isa did not exhaust his administrative remedies and obtain agency rulings on these claims and thus cannot seek non PURA authorized damages in the trial court under the hybrid process.”) (citation and footnote omitted); In re Mabank Inde h. Dist., 165 S.W.3d 808, 813 814 (Tex. App.Tyler 2005, orig. proceeding) (“[T]he necessary facts underlying the Allens’ breach of contract claim raise an issue that falls within the Board’s clusive jurisdiction, i.e., the disposition of Mrs. Allen’s t ansfer request. . . . Consequently, the Allens must first exhaust their administrative remedies and obtain a final Board decision on their God’s Property v. Hill and Oncor: Plea to the Jurisdiction age transfer request.”); 2 Ronald L. Beck, Texas Administrative Practice and Procedure § 12.1.2, at 26 to 27 (2 (“[I]f it is determined that the Legislature intended to vest within the agency exclusive jurisdiction to determine certain issues of law and fact, and if those issues are common to all causes of action, the district court must abate until such time as th agency has determined the common issues of law and fact. [In such a] scenario, the agency is vested with exclusive jurisdiction as to . . . the common issues of law and/or fact.” (footnote omitted)). In sum, because Plaintiff’s claims complain about Oncr’s “operations” and “services” and implicate the Tariff, they fall within the PUC’s exclusive jurisdiction. Plaintiff, therefore, is required to exhaust his administrative remedies before seeking relief from this Court even hough the PUCcannot decide his tort claims or award him damages. CONCLUSION en the Legislature creates a pervasive regulatory scheme, it intends that the public agency with the appropriate expertise decide all issues within its exclusive jurisdiction before the plaintiff seeks relief from a district court even if the agency cannot decide the plaintiff’s tort or statutory claims or award damages. As recently explained by the Texas Supreme Court: The requirement that parties exhaust admini trative remedies does not deprive parties of their legal rights. Instead, it honors the Legislature’s intent that “the appropriate body adjudicates the dispute” first and thereby “ensure[s] an orderly procedure to enforce those rights.” By requiring the agency to address the complaints first, the law permits the agency to apply its expertise and exercise its discretion to resolve the issue and to develop a complete factual record if the courts later get involved. A party who obtains relief through the aministrative process avoids the expense and delay of litigation. And if the outcome of the ministrative process leaves the party dissatisfied, it may file suit and have the courts review theagency’s decision. Chaparral, 546 S.W.3d at 145 (quoting Clit Indep. Sch. Dist. V. Marquez, 487 S.W.3d 538, 45 (Tex. 2016). Because PURA is such a pervasive regulatory scheme and because this case involves questions squarely within the exclusive jurisdiction of the PUC under PURA, te Court God’s Property v. Hill and Oncor: Plea to the Jurisdiction age must dismiss this case without prejudice because it lacks subject matter jurisdiction over Plaintiff’s claims. WHEREFORE, Defendant prays as follows: The Court grant Defendant’s Plea to the Jurisdictionand dismiss this case for lack of subjec r jurisdiction; alternatively, or The Court render such other and further relief, special or general, at law or in equity, to which it may show itself justly entitled. Respectfully submitted, IGGS & GREENSLADE, P.C. 1042 Asher Way, Suite 100 Tyler, Texas 75703 (903)405 (903)630 7859 Facsimile KENNETH M. BIGGS State Bar No. 24071983 Kenneth@BGLawTexas.com JOHN W. GREENSLADE State Bar No. 24068263 John@BGLawTexas.com and ONCOR ELECTRIC DELIVERY COMPANY, LLC /s/ Dan iel G. Altman JOHN C. STEWART State Bar No. 19211525 DANIEL G. ALTMAN State Bar No. 00793255 115 W 7 Street, Suite 405 Fort Worth, Texas 76101 (817) 215 Telephone (817) 215 Facsimile daniel.altman@oncor.com ATTORNEYS FOR DEFNEDANTS God’s Property v. Hill and Oncor: Plea to the Jurisdiction age CERTIFICATE OF SERVICE I, the undersigned attorney, do hereby certify that a true and correct copy of the foregoing instrument was forwarded to all known parties or counsel of record on this day of March , in accordance with the TEXAS RULES OF CIVIL PROCEDURE KENNETH M. BIGGS God’s Property v. Hill and Oncor: Plea to the Jurisdiction age