ENTERGY CORPORATION v. JENKINS

OPINION

EVELYN V. KEYES, Justice.

This is an interlocutory appeal challenging the trial court's order certifying a class action in a suit brought under the Texas Theft Liability Act ("the Theft Act").1 In three issues, appellants, Entergy Corporation, Entergy Services, Inc., Entergy Power, Inc., Entergy Power Marketing Corporation, Entergy Arkansas, Inc., and Entergy Texas, Inc. (collectively, "Entergy"), contend that the trial court (1) lacked subject matter jurisdiction over this suit, (2) abused its discretion in finding that the requisites for class certification had been established, and (3) abused its discretion by making findings of fact and conclusions of law that misstate and misapply the applicable law.

We reverse and render.

Background

A. Factual Background

Entergy Corporation is a public utilities holding company with six electric utility operating companies: Entergy Gulf States Louisiana, L.L.C., Entergy Arkansas, Inc., Entergy Louisiana, LLC, Entergy Mississippi, Inc., Entergy New Orleans, Inc., and Entergy Texas, Inc. ("ETI"). These six companies, which operate in four southern states, provide electrical service to approximately 2.6 million retail customers.2

Each operating company has electricity generation facilities, consisting of nuclear, coal, natural gas, or oil-fired generating plants. The companies are parties to the Entergy System Agreement ("ESA"), a federal tariff under which power is shared and distributed.3 The companies also purchase power from each other and from non-affiliated third parties in the power market. The ESA provides for centralized control of power purchases, operations, and use of available resources throughout the Entergy System. Although each company operates its generation, transmission, and distribution systems independently, production, purchasing, and sale of wholesale electricity on behalf of those companies to meet the needs of retail and wholesale customers are controlled centrally by Entergy Services, Inc. ("ESI").

ESI operates a Systems Operation Center, located in The Woodlands, which controls the selection of power ("dispatch decisions"). The ESA permits the System Operator to purchase power at wholesale from third-party suppliers. The System Operator controls daily operations and is in charge of determining whether system-generated power is sufficient to meet capacity needs or whether purchasing third-party power is necessary. ESI performs a monthly accounting, assigning a portion of the total power resources used by the whole system to each operating company, generating an "intra-system" bill. The cost is dictated by a formula in Service Schedule MSS-3 of the ESA, which governs the intra-company accounting for system resources.

B. Procedural Background

On August 5, 2003, David Jenkins, George W. Strong, Francis N. Gans, and Gary M. Gans, individually and on behalf of all persons similarly situated (collectively, "Jenkins"), filed suit against Entergy4 alleging that it had devised and operated an improper energy-purchasing scheme under which it had selected internally generated, higher-priced electrical power while rejecting less expensive, available third-party power, resulting in theft from Texas retail power customers in violation of the Theft Act. On September 15, 2003, Entergy removed the suit to federal court alleging federal question jurisdiction. The federal court remanded the case to state court, concluding that the suit did not invoke federal law.

On April 23, 2004, Entergy filed a motion to dismiss for want of jurisdiction, contending that jurisdiction of Jenkins's claims was preempted by the Federal Energy Regulatory Commission ("FERC") and the Texas Public Utilities Commission ("PUC") and that the claims were also barred by the filed-rate doctrine. On November 24, 2004, the trial court granted Entergy's motion to dismiss, finding that it lacked subject matter jurisdiction over Jenkins's claims.

Jenkins appealed the trial court's order dismissing the case. In Jenkins v. Entergy Corp., 187 S.W.3d 785 (Tex. App.-Corpus Christi 2006, pet. denied) ("Jenkins I"), the Corpus Christi Court of Appeals reversed the trial court's order dismissing the suit for lack of subject matter jurisdiction. On June 6, 2012, Jenkins filed a motion to certify a class consisting of Texas retail customers served by ETI who were billed and paid for electric power from January 1, 1994, to present. Entergy filed a second motion to dismiss for lack of jurisdiction and three motions for summary judgment. The trial court denied the motion to dismiss and the summary judgment motions.

The parties submitted extensive briefing on class certification issues, and the trial court held a certification hearing lasting several days. On April 30, 2012, the trial court granted Jenkins's motion for class certification and issued extensive findings of fact and conclusions of law. Entergy timely perfected this interlocutory appeal.

Analysis

In three issues, Entergy contends that the trial court (1) lacks subject matter jurisdiction over Jenkins's claims, (2) abused its discretion in finding that Jenkins had established the requirements for class certification, and (3) abused its discretion by making findings of fact and conclusions of law that misstate and misapply the law. Jenkins argues that Jenkins I, which rejected Entergy's jurisdictional arguments, is the law of the case and prohibits reconsideration of the subject matter jurisdiction issue. Entergy urges us to find that Jenkins I is not the law of the case because (1) the circumstances and evidence have changed, (2) Jenkins I was wrongly decided, (3) the law of the case doctrine should not be applied to subject-matter jurisdiction determinations, and (4) Jenkins I did not address all of the issues raised in this appeal.

A. Law of the Case

Because this case comes to us on appeal following remand for further proceedings in the trial court by the Corpus Christi Court of Appeals in Jenkins I, which reversed the trial court's previous order dismissing the case for want of jurisdiction, we consider, as a preliminary matter, the law of the case doctrine to determine whether the Corpus Christi Court of Appeals' decision prevents us from considering Entergy's jurisdictional arguments.

"Subject matter jurisdiction is `essential to a court's power to decide a case.'" City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013) (per curiam) (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000)). "Without jurisdiction the court cannot proceed at all in any cause; it may not assume jurisdiction for the purpose of deciding the merits of the case." Fin. Comm'n of Tex. v. Norwood, 418 S.W.3d 566, 578 (Tex. 2013) (quoting Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 1191 (2007)). "The failure of a jurisdictional requirement deprives the court of the power to act (other than to determine that is has no jurisdiction), and ever to have acted, as a matter of law." City of DeSoto v. White, 288 S.W.3d 359, 393 (Tex. 2009) (quoting Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004)). Thus, "[a] judgment is void if rendered by a court without subject matter jurisdiction." In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 309 (Tex. 2010) (orig. proceeding). "[N]ot only may an issue of subject matter jurisdiction `be raised for the first time on appeal by the parties or by the court', a court is obliged to ascertain that subject matter jurisdiction exists regardless of whether the parties questioned it." Id. at 306 (quoting Loutzenhiser, 140 S.W.3d at 358) (emphasis in original); City of Allen v. Pub. Util. Comm'n of Tex., 161 S.W.3d 195, 199 (Tex. App.-Austin 2005, no pet.) ("[T]he question of jurisdiction is fundamental and can be raised at any time in the trial of a case or on appeal.").

The law of the case doctrine is defined as "that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages." Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 596 (Tex. 2006); Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 373 (Tex. App.-Houston [1st Dist.] 2010, pet. denied). Under the law of the case doctrine, a court of appeals will ordinarily be bound by its initial decision if there is a subsequent appeal in the case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). "By narrowing the issues in the successive stages of the litigation, the law of the case doctrine is intended to achieve uniformity of decision as well as judicial economy and efficiency." Id. (quoting Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)). This doctrine is based on public policy and is aimed at bringing finality to litigation. Id.

A decision rendered on an issue by an appellate court does not, however, absolutely bar reconsideration of the issue on a second appeal. Id. Rather, the law of the case doctrine "`merely expresses the practice of the courts generally to refuse to reopen what has been decided.'" See It's the Berry's, LLC v. Edom Corner, LLC, 271 S.W.3d 765, 771 (Tex. App.-Amarillo 2008, no pet.) (quoting Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740 (1912)). The application of the doctrine lies within the discretion of the court, depending on the circumstances of the case. Briscoe, 102 S.w.3d at 716. The doctrine does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved in the first trial.5 Pitman v. Lightfoot, 937 S.W.2d 496, 513 (Tex. App.-San Antonio 1996, writ denied). Moreover, it is an exception to the law of the case doctrine that the original decision was clearly erroneous. Briscoe, 102 S.W.3d at 716.

Most critically, the law of the case doctrine does not either confer or limit subject matter jurisdiction and is not a limitation on the power of the courts to act. See It's the Berry's, 271 S.W.3d at 771-72 (refusing to apply law of the case doctrine to bar review of district court's exercise of subject matter jurisdiction on estoppel grounds). "Subject matter jurisdiction cannot be conferred by consent, waiver, or estoppel at any stage of a proceeding." Id. (quoting Tourneau Houston, Inc. v. Harris Cnty. Appraisal Dist., 24 S.W.3d 907, 910 (Tex. App.-Houston [1st Dist.] 2000, no pet.)). It follows that subject matter jurisdiction cannot be conferred by a prior decision in the case.

Given this law, we review de novo the issue of whether the Texas courts have subject matter jurisdiction over Jenkins's claims. See In re United Servs. Auto. Ass'n, 307 S.W.3d at 306 (holding that appellate court is "obliged to ascertain that subject matter jurisdiction exists," even sua sponte on appeal if not raised by parties).

B. Entergy's Jurisdictional Arguments

Entergy argues that the trial court lacks subject matter jurisdiction over Jenkins's claims for several reasons. First, Entergy argues that the FERC has exclusive jurisdiction over Jenkins's claims. Second, Entergy argues that if this Court determines that FERC does not have exclusive jurisdiction, then the PUC, which governs retail rates for power sold to Texas consumers, has exclusive jurisdiction over this case. Third, Entergy asserts that both the federal and Texas filed-rate doctrines bar Jenkins's suit. We conclude that FERC has exclusive jurisdiction over Jenkins's claims and, therefore, appellees' claims must be dismissed.

1. Exclusive Jurisdiction

An agency has exclusive jurisdiction when Congress or 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); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). Likewise, 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.'" In re Entergy Corp., 142 S.W.3d at 322 (quoting David McDavid Nissan, 84 S.W.3d at 221)). If an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency's action. Id. at 321 (citing Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000)). Until the party has exhausted all administrative remedies, the trial court lacks subject matter jurisdiction and must dismiss any claims that fall within the agency's exclusive jurisdiction. Id. at 321-22; Oncor Elec. Delivery Co. LLC v. Giovanni Homes Corp., 438 S.W.3d 644, 648 (Tex. App.-Fort Worth 2014, no pet. h.). Whether an agency has exclusive jurisdiction is a question of law that we review de novo. In re Entergy Corp., 142 S.W.3d at 322; David McDavid Nissan, 84 S.W.3d at 222.

2. FERC's Jurisdiction

Jenkins claims that ETI, in conspiracy with its parent and affiliates (Entergy), stole the class's money by charging them for using ETI-generated electrical power or power purchased from other entities within the Entergy System instead of cheaper power available from third parties, in violation of the Theft Act.

The Corpus Christi Court of Appeals noted in Jenkins I that the ESA provides that: (1) the companies within the Entergy System, with the consent of or under conditions specified by the operating committee, may agree to purchase capacity or energy from outside sources that, if purchased by the operating company, shall be allocated amongst the companies in the System in any manner mutually agreeable to them; (2) the operating committee may purchase energy under economic dispatch or emergency conditions; (3) the operating committee is to ensure the continuous supply or capacity of energy, provide for and coordinate safe dispatching and the proper distribution of reserves, coordinate negotiations for the interchange and sale of power and energy, including the sale and delivery to others on a profitable basis of power and energy not required for system purposes, and to secure power from external sources as may be required or will result in savings to the companies; and (4) the operating committee shall determine availability of energy for purchase from or sale to outside systems in an economical manner. See 187 S.W.3d at 806.

As Entergy explains and its evidence shows, electricity cannot be practically stored. Rather, at all times, available power must match demand, which is based upon ever-changing customer usage. To match power and demand, Entergy selects generating resources to meet estimated future demand (the commitment process) and determines the level at which committed resources will be operated and adjusted to meet the instantaneous demand (the demand process). These processes involve determining what third-party power is available, what price the seller is demanding, what quantity is available each hour, whether transmission service is available to deliver the purchased power to where it is needed, whether available third-party power can be automatically dispatched or must be purchased in unchangeable blocks of time and energy, whether there is Entergy generation that could and should be displaced, and whether reserve requirements can be met.

Operation of the System requires that a significant portion of the System's resources be able to respond to changes in demand through instantaneous changes in the amount of electricity provided, which requires flexible system generators. Entergy relies on flexible generation to be able to comply with federal law, which permits industrial co-generators on the Gulf Coast to require Entergy to take excess power into the System or to cease supplying power to the System without notice. Entergy avers that third-party power is generally not flexible, limiting the amount of third-party power the Entergy System can use.

Entergy's fuel and purchased-power costs are subjected to scrutiny by FERC under the Federal Power Act ("FPA") and by the PUC under the Public Utilities Regulatory Act ("PURA"). FERC regulates wholesale power transactions and has exclusive jurisdiction over wholesale power rates. The PUC governs ETI's recovery of fuel and purchased-power costs from its customers and, in fuel reconciliation proceedings, it reviews and makes a final determination as to the reasonableness and necessity of ETI's incurred fuel and purchased-power costs. The cost of system-generated or purchased power is charged directly to ratepayers, subject to PUC prudence review. This cost charged to ratepayers is the subject of Jenkins's sole complaint—that Entergy has over-charged appellees in violation of the Theft Act.

Under the FPA, FERC has exclusive jurisdiction of the wholesale sale or transmission of electricity in interstate commerce. See 16 U.S.C.A. § 824(a), (b)(1); Entergy La., Inc. v. La. Pub. Serv. Comm'n, 539 U.S. 39, 41, 123 S.Ct. 2050, 2053 (2003). FERC's exclusive jurisdiction extends not only to rates but also to power allocations that affect wholesale rates. See Miss. Power & Light Co. v. Miss. ex rel. Moore, 487 U.S. 354, 371-72, 108 S.Ct. 2428, 2439 (1988) (holding that states may not alter allocations of power ordered by FERC by substituting their own determinations of what would be just and fair; FERC-mandated allocations of power are binding on states and must be treated as fair and reasonable when determining retail rates, and "[s]tates may not bar regulated utilities from passing through to retail consumers FERC-mandated wholesale rates").

FERC's jurisdiction encompasses the determination of just and reasonable rates—including all classifications, practices, regulations, and contracts affecting rates, as well as the authority to hear complaints that an existing rate (or associated charge, classification, rule, regulation, practice or contract) is unjust, unreasonable, unduly discriminatory or preferential. See 16 U.S.C.A. §§ 824d, 824e. FERC also has exclusive jurisdiction to make a final determination as to whether the rate has been violated. AEP Tex. N. Co. v. Tex. Indus. Energy Consumers, 473 F.3d 581, 586 (5th Cir. 2006). The "filed rate doctrine" requires that interstate power rates filed with, or fixed by, FERC must be given binding effect by state utility commissions determining intrastate rates in that the FPA and the Supremacy Clause preempt any state action modifying or overruling the filed rate. See 16 U.S.C.A. § 824(b)(1); Entergy La., 539 U.S. at 47, 123 S. Ct. at 2056; AEP Tex. N. Co., 473 F.3d at 584.

The FPA gives states, municipalities, and retail ratepayers the right to participate in FERC proceedings and to file complaints. 16 U.S.C.A. §§ 824d, 824e, 825e. The FPA also gives FERC exclusive jurisdiction to remedy rate violations by providing refunds. Id. § 824e; AEP Tex. N. Co., 473 F.3d at 586. And it provides civil penalties for violating any provision of the governing chapter of the FPA or any rule or order thereunder. 16 U.S.C.A. § 825o-1(b).

Entergy Louisiana involved the same group of energy companies as in this case and a similar issue involving FERC preemption of state utility commission regulation of power rates under the filed-rate doctrine. Entergy Louisiana shared capacity with its fellow operating companies in the Entergy System which allowed the companies "to access additional capacity when demand exceeds the supply generated by that company alone." Entergy La., 539 U.S. at 42, 123 S. Ct. at 2053. Pursuant to MSS-1 of the System Agreement, the same ESA at issue here, Entergy allocated the costs of keeping excess capacity available among the operating companies. Id. MSS-1 provided a formula to calculate "cost-equalization" payments among the companies in the System, which ensured that companies within the System that used more capacity than they contributed ("short" companies) made payments to companies that contributed more capacity than they used ("long" companies). Id. at 42-43, 123 S. Ct. at 2053-54. Entergy determined each company's capacity on a monthly basis, and a company that contributed more capacity than it used received a payment equal to its average cost of the company's generating units multiplied by the number of megawatts the company was considered "long." Id. at 43, 123 S. Ct. at 2054. Under Entergy's Extended Reserve Shutdown ("ERS") program, the operating committee could designate some generating units as not immediately necessary for capacity needs; but because these units could be activated if energy demand increased in the future, these units were considered "available" under the MSS-1's cost-equalization calculations. Id.

FERC approved an amendment to the System Agreement that "allow[ed] an ERS unit to be treated as available under MSS-1 if the operating committee determine[d] it intend[ed] to return the unit to service at a future date." Id. at 44, 123 S. Ct. at 2054. Entergy Louisiana, which routinely had to make cost-equalization payments to other companies within the System pursuant to MSS-1, filed its 1997 retail rates with the Louisiana Public Service Commission ("LPSC")—the counterpart to the Texas PUC in this case. See id. at 45, 123 S. Ct. at 2055. The LPSC determined that, although it was preempted from determining whether the operating committee's inclusion of ERS units prior to August 5, 1997—the date of the FERC order approving the amendment to the System Agreement—was prudent, it was not preempted from "disallowing MSS-1 related costs as imprudent subsequent to August 5, 1997." Id. The LPSC "concluded that the operating committee's treatment of ERS units after August 5, 1997, was imprudent and that [Entergy Louisiana's] MSS-1 payments would not be considered when setting [its] retail rates in Louisiana." Id. at 46, 123 S. Ct. at 2055.

The United States Supreme Court determined that the LPSC's order "impermissibly `traps' costs that have been allocated in a FERC tariff" in violation of the filed-rate doctrine. Id. at 49, 123 S. Ct. at 2057. The Court noted that the System Agreement "leaves the classification of ERS units to the discretion of the operating committee" instead of involving a specific FERC-mandated cost-allocation. Id. The Court refused to create an exception to the filed-rate doctrine, even though the case did not involve a specific FERC mandate, reasoning that to do so would "substantially limit FERC's flexibility in approving cost allocation arrangements." Id. at 50, 123 S. Ct. at 2057. The Court also held that preemption did not depend on the existence of a FERC order approving the particular classification at issue, stating, "It matters not whether FERC has spoken to the precise classification of ERS units, but only whether the FERC tariff dictates how and by whom that classification should be made." Id.

The same FERC-approved System Agreement that governed in Entergy Louisiana governs Entergy's operations in this case. ESA section 6.02 sets out the duties of the System Operating Center. This section provides that Entergy Services shall "[d]etermine the most effective scheduling of sources for the reliable supply of power and energy on an economical basis to the companies" and "[d]etermine the availability of energy for purchase from or sale to outside systems on an economical basis under effective contracts and arrange for and schedule such transactions." The ESA thus allows the System Operator to meet energy demand by purchasing capacity from third-party sources, but the ESA does not specifically dictate the amount of power the System Operator is to purchase from third-party sources relative to system-generated power. This decision is therefore left to the System Operator's discretion under the FERC-approved ESA.

Jenkins challenges that decision, alleging that Entergy manipulated the computer programs used in making purchasing decisions, such that Entergy purchased more expensive system-generated power even though lower-cost third-party power was available, resulting in Entergy's charging higher rates to its retail customers. Jenkins seeks a refund of retail charges, but he complains about Entergy's wholesale electricity purchases. Although Jenkins does not allege breach of the ESA as a cause of action, he challenges Entergy's purchasing decisions—whether to use allegedly available third-party electricity or system-generated electricity—which Entergy undertook pursuant to the ESA. Determining whether Entergy permissibly exercised its discretion in making its purchasing decisions thus necessarily requires consideration of the ESA, a FERC-approved tariff.

Because resolving this dispute involves the consideration and interpretation of a FERC-approved tariff, we conclude that this dispute falls within FERC's exclusive jurisdiction. See AEP Tex. N. Co., 473 F.3d at 585 ("FERC, not the state, is the appropriate arbiter of any disputes involving a tariff's interpretation."); see also Entergy La., 539 U.S. at 50, 123 S. Ct. at 2057 ("It matters not whether FERC has spoken to the precise classification of ERS units, but only whether the FERC tariff dictates how and by whom that classification should be made.").

Because Jenkins did not exhaust his administrative remedies by first bringing this dispute before FERC, we hold that the trial court lacks subject matter jurisdiction over the case. See In re Entergy Corp., 142 S.W.3d at 321-22 (holding that when agency has exclusive jurisdiction over dispute, party must exhaust all administrative remedies before seeking relief in district court from agency decision, and until party exhausts administrative remedies, trial court lacks subject matter jurisdiction). We hold that the trial court erroneously denied Entergy's motion to dismiss for lack of jurisdiction and that the trial court's class-certification order is therefore void.

Accordingly, we sustain Entergy's first issue.6

Conclusion

We declare the trial court's order granting class certification void. We reverse the order of the trial court denying Entergy's motion to dismiss and render judgment dismissing all claims against Entergy.

DISSENTING OPINION

SHARP, J., Dissenting.

At what juncture in our Texas jurisprudence did a state tort action for theft and manipulating information, including proprietary software designed to determine purchasing decisions of electric power,1 get preempted by a byzantine pervasive Federal regulatory scheme for utility rates?2 When did the judicial doctrine of federal preemption become the means whereby claims of theft from citizens are exempt from judicial proceedings for no reason other than the industry in which the accused does business is subject to federal regulations?

The majority opinion pegs that date at November 6, 2014. See Entergy Corp. v. Jenkins, ___ S.W.3d ___, 2014 WL 5780638, at *1 (Tex. App.-Houston [1st Dist.] Nov. 6, 2014, no pet. h.) (Jenkins II).

More to the point: To how many courts must the same jurisdictional arguments be trotted out and found inadequate before the litigants are accorded a trial on the merits? Prior to our consideration, this case had been reviewed by the trial court in Chambers County, a federal district court for the Southern District of Texas,3 the Edinburg-Corpus Christi Court of Appeals (Jenkins I),4 the Texas Supreme Court5 and the United States Supreme Court.6 Excepting the initial dismissal from the Chambers County court, and the majority opinion of this Court, all were of one mind with respect to the "state-tort-meets-pervasive-utility-regulatory-scheme" jurisdictional issue.

Law of the case

The law of the case doctrine is the legal principle that questions of law decided and resolved on appeal will govern throughout the subsequent stages of the case, including retrials and further appeals. See Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 595-96 (Tex. 2006). The doctrine only applies to questions of law7 expressly considered and decided in a prior appeal of the same case. See id. at 596; see also Gantt v. Gantt, 208 S.W.3d 27, 30 n.4 (Tex. App.-Houston [14th Dist.] 2006, pet. ref'd). Furthermore, the doctrine may not be waived by the parties as it was established to protect the appellate court's prior judgment, and it is the appellate court that determines whether the legal principle applies on successive appeals. See Jones & Gonzalez, P.C. v. Trinh, 340 S.W.3d 830, 836 (Tex. App.-San Antonio 2011, no pet.).

The doctrine is rooted in public policy and aimed at putting an end to litigation. See Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716-17 (Tex. 2003). By narrowing the issues in subsequent stages of litigation, the doctrine is aimed at achieving uniformity and consistency as well as judicial economy and efficiency. Id.; In re Henry, 388 S.W.3d 719, 727 (Tex. App.-Houston [1st Dist.] 2012, pet. denied). The law of the case assures lower courts that they can rely on the appellate court's disposition of an issue in presiding over the suit and gives an incentive for trial courts to closely follow these decisions. Duncan v. State, 151 S.W.3d 564, 566 (Tex. App.-Fort Worth 2004, pet. ref'd) (quoting Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999)).

An exception to the law of the case doctrine is taken when the original decision was clearly erroneous. Brown & Brown of Tex. Inc. v Omni Metals, Inc., 317 S.W.3d 361, 373-74 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) (citing Briscoe, 102 S.W.3d 716)). The operative language for deviation being "clearly erroneous."

Where, as here, an intermediate appellate court renders a decision on an interlocutory appeal and both the Texas Supreme Court and the United States Supreme Court decline an opportunity to review it, the decision, for purposes of the law of the case doctrine, is not clearly erroneous. Caplinger v. Allstate Ins. Co., 140 S.W.3d 927, 930 (Tex. App.-Dallas 2004, pet. denied); see also Hurd Enterprises, Ltd. v. Bruni, 828 S.W.2d 101, 106 (Tex. App.-San Antonio, 1992, writ denied).

In support of the panel majority's position that law of the case doctrine is merely optional and its application discretionary with the subsequent reviewing court, the panel's opinion cites Briscoe, see Jenkins II, ___ S.W.3d ___, 2014 WL 5780638, at *3, despite then-Chief Justice Jefferson's concurrence emphasizing that the underlying case was a page from the "bad facts make bad law" book: "We should state the obvious—we are making an exception in this one case because, as everyone acknowledges, Briscoe and Goodmark led the court of appeals into error during the first appeal. It is a holding unsound in principle, but acceptable in equity." Briscoe, 102 S.W. 3d at 719 (Jefferson, J., concurring). In other words, the case was one which handily met the "clearly erroneous" measure.

A court should not examine the question of jurisdiction anew after another court has already decided the question of jurisdiction as a contested issue. Stoll v. Gottlieb, 305 U.S. 165, 172, 59 S.Ct. 134, 137-38 (1938); see Durfee v. Duke, 375 U.S. 106, 113-14, 84 S.Ct. 242, 245-46 (1963). Correspondingly, "[t]he law of the case doctrine is defined as that principle under which questions of law decided on appeal . . . will govern the case throughout its subsequent stages." Ianni, 210 S.W.3d at 596. It therefore applies only to questions of law expressly considered and decided in a prior appeal. See United States v. Hatter, 532 U.S. 557, 565-66, 121 S.Ct. 1782, 1789-90 (2001); City of San Antonio v. San Antonio Indep. Sch. Dist., 683 S.W.2d 67, 69 (Tex. App.-San Antonio 1984, writ ref'd n.r.e.). Thus, in deciding its jurisdiction, a court is not bound by a prior exercise of jurisdiction where it was not questioned, but was passed sub silentio. United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37-38, 73 S.Ct. 67, 69 (1952); see also Gantt, 208 S.W.3d at 30 n.4.

The majority opinion's cite to It's the Berry's, LLC v. Edom Corner, LLC, 271 S.W.3d 765, 771-72 (Tex. App.-Amarillo 2008, no pet.) is also confusing. The panel opinion cites to It's the Berry's for the proposition that "the law of the case doctrine does not either confer or limit subject matter jurisdiction and is not a limitation on the power of the courts to act." However, that is not the purpose of the doctrine. It's the Berry's was an action for forcible detainer in justice court that was transferred to district court and there tried as though that court possessed original subject matter jurisdiction. Id. at 766.

Federal Preemption

The federal preemption issue was determined specifically by the Edinburg-Corpus Christi Court of Appeals, thoughtfully addressed by the United States District Court, and implicitly determined by the Texas Supreme Court and the United States Supreme Court. Nonetheless, flouting the well-established judicial doctrine of law of the case, the majority opinion of this court eschews the careful analysis of the Edinburg-Corpus Christi Court, which adopted the very the three-part test used by FERC itself to determine its jurisdiction over certain tariff disputes, and decided Jenkins I need not be heeded because the majority disagrees with its sister court's holding on federal preemption.

"[P]reemption issues are [often] complex and highly nuanced, involving both federalism and separation of powers—congressional prerogatives, agency competence, and judicial deference—as well as efficiency, equity, victim compensation, and cost-shifting objectives."8 Legislative intent is the "touchstone" of federal preemption and exclusive jurisdiction analysis.9 The majority notes that "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." Jenkins II, ___ S.W.3d ___, 2014 WL 5780638, at *4 (emphasis added)(internal quotations omitted). Here, however, the state law claims under the Texas Theft Liability Act for conspiracy and theft are not matters to which the pervasive regulatory scheme governing energy utilities were addressed.

Both in pleadings and during oral argument, appellees have been clear that this case is not about rates but, rather Entergy's power purchasing decisions. As the trial court found, "Entergy may have applied the rate formulas correctly to the costs it incurred, but Entergy's proper application of the rates does not somehow make the purchases Entergy made prior to charging those rates proper purchases."

November 6, 2014 would also be the date on which the majority opinion, in its glancing mention in this appeal of the class certification, voids the trial court's certification for its lack of jurisdiction, citing the plaintiffs' failure to have exhausted their "administrative remedies." Given that FERC is the federal administrative agency tasked with regulating the electric power grid of the nation, a fair question is: What administrative remedies? This case, as the Edinburg-Corpus Christi Court of Appeals determined, "is inherently judicial in nature, in which Jenkins brings state law tort claims based on those interstate purchasing and allocation decisions." Jenkins I, 187 S.W3d at 801. As such, the courtroom venue of the judicial branch, not an administrative hearing tribunal of the executive, is the more appropriate adjudicative venue for state tort claims based on theft, conspiracy, software manipulation and accounting sleights of hand.

Was it Congress' intent when enacting the Federal Power Act ("FPA") under the Constitution's Commerce Clause to vest in the Federal Energy Regulatory Commission exclusive jurisdiction to hear and try intentional tort cases like theft?

The federal court to which the case was removed thought not:

Jenkins I, 187 S.W3d at 807 (quoting district court's order remanding case).

The United States Supreme Court teaches that legislative intent is the "touchstone" of federal preemption analysis. Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 2250 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 224 (1963)); Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 2617 (1992). In all preemption cases, in particular those that involve a legal field which the states have traditionally occupied, "we start with the assumption that the historic police powers of the States were not to be superseded by the [federal law] unless that was the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152 (1947); see also Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 714-15, 105 S.Ct. 2371, 2376 (1985). "As a result, any understanding of the scope of a pre-emption statute must rest primarily on `a fair understanding of congressional purpose.'" Medtronic, 518 U.S. at 485-86, 116 S. Ct. at 2250-51 (quoting Cipollone, 505 U.S. at 530, n.27, 112 S. Ct. at 2624, n.27).

Congress' intent behind the enactment of a federal law may be expressly stated in the statute or impliedly contained in its structure and purpose. Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309 (1977). Absent express language as to congressional intent in the federal statute, state law will be preempted only if that law conflicts with federal law, or if the federal law occupies the legislative field "as to make reasonable the inference that Congress left no room for the State to supplement it." Fid. Fed. Sav. & Loan Assn. v. De La Cuesta, 458 U.S. 141, 153, 102 S.Ct. 3014, 3022 (1982) (quoting Rice, 331 U.S. at 230, 67 S. Ct. at 1152)).

The Federal Power Act and FERC

Federal regulation of electric transmission developed from the need to regulate electric utilities in interstate commercial transactions. See generally New York v. FERC, 535 U.S. 1, 5-6, 122 S.Ct. 1012, 1016-17 (2002). As a result, Congress in 1935 enacted the FPA under its commerce clause powers afforded to it in the United States Constitution. See 16 U.S.C. § 824; see also New York v. FERC, 535 U.S. at 5-6, 122 S. Ct. at 1016-17. In expressly stating its purpose, Congress wrote in the FPA:

16 U.S.C. § 824(a) (emphasis added). It is from the FPA which FERC derives its power of setting and ensuring that the rates, terms, and conditions of transmission service provided by electric utility companies are just and reasonable in order to give effect to the FPA's public policy interests. Id. § 824a, 824d(a).

Congress' intent and purpose for the enactment of the FPA was expressly stated in the language of the act. Id. § 824(a). Congress further provided that federal regulation was "to extend only to those matters which are not subject to regulation by the States." Id. § 824(a). Thus, guided by both case law and express mandates of the FPA itself, we must begin with the supposition that "Congress does not cavalierly pre-empt state-law causes of action," and with the presumption that Congress did not intend the FPA, and thus FERC, to have exclusive jurisdiction over those areas within the historic police powers of the states, such as the intentional tort of theft. Medtronic, 518 U.S. at 485, 116 S.Ct. 2250; see also Automated Med. Labs., 471 U.S. at 714-15, 105 S. Ct. at 2376; De La Cuesta, 458 U.S. at 153, 102 S. Ct. at 3022; Jones, 430 U.S. at 525, 97 S. Ct. at 1309; Rice, 331 U.S. at 230, 67 S. Ct. at 1152.

Appellants maintain that this suit is a dispute over rates and their reasonableness as set in the ESA or tariff filed with FERC. As such, they contend that appellees' suit is really a rate case within the exclusive jurisdiction of FERC provided for under the FPA, thus preempting the trial court from exercising jurisdiction over the suit. However, as appellees contend and the Edinburg-Corpus Christi Court of Appeals and federal district court ruled, this suit is not a rate case but a cause of action pursuant to the TTLA and Texas common law.

Appellees neither challenge the reasonableness of the rates nor the terms and provisions of the ESA. Rather, they challenge appellants' scheme of omitting particular costs that make Entergy generated power appear less expensive than third-party generated power, allowing Entergy to sell its own generated power, but then adding back in those costs, thus substantially increasing its earnings. Appellees allege this is a manipulative scheme constituting theft under the Texas Penal Code and actionable as an intentional state tort pursuant to the TTLA and the Texas common law. See TEX. PENAL CODE ANN. § 31.03 (West 2011); TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001-005 (West 2011).

Appellees do not directly challenge the ESA, its terms or provisions, the rates that are set under it, or whether it is reasonable and just. Their claims arise from appellants' decisions to omit particular costs for the purpose of making internally generated power appear more economical and with the alleged intent to commit, and conspiracy to commit, the unlawful appropriation of its customers' money. Whether or not these actions constitute the intentional tort of theft as prescribed under Texas law and actionable under the TTLA is within the subject-matter jurisdiction of Texas state courts, not FERC.10

Based upon the express language of the FPA and rules promulgated by the United States Supreme Court, there can be made "[no] reasonable [] inference that Congress left no room for the State to supplement [the legal field]." De La Cuesta, 458 U.S. at 153, 102 S. Ct. at 3022 (quoting Rice, 331 U.S. at 230, 67 S. Ct. at 1152); see also 16 U.S.C. § 824(a) (stating "such Federal regulation, however, [is] to extend only to those matters which are not subject to regulation by the States."). "[N]ot all discretionary decisions [of the Entergy Operating Companies] are subject to FERC's exclusive jurisdiction." Jenkins I, 187 S.W.3d at 803. Appellees' suit is not within the exclusive jurisdiction of FERC as it raises state-law tort claims.

PUC Jurisdiction

When the Texas legislature grants a state administrative agency the sole authority to make an initial determination in a dispute, the agency has exclusive jurisdiction over the matter. Houston Mun. Employees Pension System v. Ferrell, 248 S.W.3d 151, 157 (Tex. 2007); see also In re Entergy Corp., 142 S.W.3d 316, 321 (Tex. 2004) (orig. proceeding); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 220 (Tex. 2002). Under Texas law, an agency is granted exclusive jurisdiction either when the statutory language expressly states, or when the pervasive regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. Emps. Ret. Sys. of Tex. v. Duenez, 288 S.W.3d 905, 908-09 (Tex. 2009).

The powers and duties afforded to the PUC regarding electric utility services come from the Public Utility Regulatory Act ("PURA"). See TEX. UTIL. CODE ANN. § 11.002(c) (West 2007) ("It is the purpose of this title to grant the Public Utility Commission of Texas authority to make and enforce rules necessary to protect customers of telecommunications and electric services consistent with the public interest."). Under PURA, the PUC "has exclusive jurisdiction over the rates, operations, and services of an electric utility. . . ." Id. § 32.001(a). Thus, it is clearly expressed from the statutory language of PURA that the PUC has exclusive jurisdiction over disputes of the rates that a Texas electric utility company charges its customers.

However, appellees' suit alleges theft and conspiracy to commit theft under the TTLA and the Texas common law and make no challenge to the reasonableness of the rates or provisions of the ESA. Rather, the suit challenges the decisions by Entergy to omit costs so internally generated power appears more economically beneficial to its customers in an alleged attempt to commit theft. Whether or not Entergy conspired to and committed theft under the Texas Penal Code subjecting it to liability under the TTLA is within the province of the Texas state courts to decide, not the PUC. As the trial court found, "There is no immunity afforded to utilities when the misconduct in which they engage also happens to violate their tariff if that misconduct also sounds in other claims for which remedies are available."

Conclusion

Jenkins I resolved appellants' jurisdictional plea, finding that the trial court has subject-matter jurisdiction over appellees' suit. Since Jenkins I, there has been no change in the governing law rendering the Edinburg-Corpus Christi Court's holding clearly erroneous. Additionally, appellants have failed to adequately show how the facts and issues currently presented by the appellees in the suit are substantially different from those presented in Jenkins I. Thus, in keeping with the law of the case doctrine, I find no reason to reverse Jenkins I and overrule the trial court's order granting appellees' motion to certify based on a lack of jurisdiction. Moreover, appellants' argument that appellees' suit is within the exclusive jurisdiction of FERC and the PUC is unavailing as appellees' cause of action is for the intentional tort of theft and based on liability pursuant to the TTLA and common law. Therefore, I would overrule appellants' first point of error and affirm the trial court's denial of appellant's second motion to dismiss for want of jurisdiction.