### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00742- CV

Nawaid Isa, Appellan t

v. Cente rP oint En ergy Houston Electr ic, LLC and Am bit En ergy, LLC, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 53RD J UDICIAL DI STRICT NO. D-1 -GN-1 5-0 0524 0, H ONO RAB LE GISELA D. TRI ANA, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

P ro s e appellant Nawa id I sa sued appellee s CenterPoint Energ y Houston Electric , L L C, a n d A mb it E n e r g y , L L C, a lleg ing fra udulent, unfair, misleading , dece ptive, or anti-compe titive b usiness prac tices in their contra cting to provide elec tric service to a play ing field owned by I sa. CenterPoint and Ambit filed pleas to the jurisdiction, which the trial court g rante d, dismiss ing I sa’s lawsuit. As explained below, we w ill affirm the trial c ourt’s dismissal order.

F actual and Proc edural Su m m ary I n 2013, I sa contac ted CenterPoint for information on constructing field lights on his cric ket field. CenterPoint sent a represe ntative t o the property and dis cussed costs of i nstallation.
I sa and CenterPoint eventua lly signe d a contra ct for Ce n t er P o i n t to install an in-line pole on the
proper ty

. After the pole was constructe d, I sa arr ang ed for elec tric service to be provided by Ambit,

a re tail electr ic provider

(REP), signing a one- y ear , fix ed-te rm contra ct.When I sa rec eived substantially highe r bills than expected, he filed a complaint with

the Public Utilit y

Commi ssion (PUC). During that proce eding an administrative law judge (AL J ) partially denied motions to dismiss filed by Ambit and CenterPoint, deter mining that there wer e fac t questions that prec luded summary judgme nt. The AL J g rante d the motions to dismiss as t o I s a’s claims seeking damag es bey ond those allowed in the P ublic Utilit y R egu l at ory Act (PURA). See generally Tex. Util. Code §§ 11.001-66.016. Ambi t ev en t u al ly cre dited I sa’s acc ount for the disputed char g es, and the admini strative complaint was then dismiss ed as moot

. I s a att empted to
appea l from that dismiss al, but those eff orts wer e unsucce ssful beca use he did not file a motion for rehe aring and thus did not exhaust his administrative reme dies under the Administrative Procedur es Act. See Isa v. Publi c Util

. Comm’n of Tex. , 528 S.W .3d 609, 619 (Tex. App.—Texarkana 2017, pet. denied) (“Since I sa was require d to exhaust hi s administrative reme dies by filing a motion for rehe aring and failed to do so, the trial court lacke d subject-matter jurisdiction.”); see also Tex. Gov’t
C o d e § § 2 0 01.145 (timely motion for rehe aring is prer equisite to appea l); .171 (par ty who has exhausted all administrative reme dies may seek judicial revie w); see generally id. §§ 2001.001-.902 (Administrative Proce dures Ac t).

I n 2015, I sa filed the underly ing lawsuit, asser ting that Ambit and CenterPoint had

v i o l ated the Dec eptive Trade Practice s Act (DTPA), PURA, and various PUC rules. He soug ht damag es for loss of reve nue, mental ang uis h , pain, and suffe ring , as well as exemplary damag es. Both Ambit and CenterPoint fi l ed p l ea s to the jurisdiction, asser ting that the PUC had exclusive jurisdiction ove r I sa’s complaints, that I sa had not e x hausted his a dminist rative reme dies, and that
I sa’s c omplaints were moot. The trial court a g ree d and dismissed I sa’s suit.

2Discussion
I sa arg ues on appea l tha t be cause the PUC c annot g rant the re lief he se eks, the trial court should have exercised jurisdi ction over his claims

. He as s er ts that the AL J deter mined that

cer tain PUC rules applied to Ambit and CenterPoint and that providing reme dies for violations of rule 25.22(5) and (7) are bey ond the PU C ’s jurisdiction. Finally , he arg ues that the reme dies provided unde r PURA “collide immitigably with remedie s under [the] DTPA.”
An ag ency has exclusive jurisdiction when the leg islature has established a perva sive
reg ulatory scheme , evidenc i n g an intent “for the reg ulatory proce ss to be the exclusive means of

reme dy in g t h e p robl em to which the reg ulation is addre ssed.” In re Southwestern Bell Tel. Co. , 235 S.W .3d 619, 624-25 (Tex. 2007). “I f an ag ency has exclusive jurisdiction to resolve a dispute,

a party must first exhaust a d mi n is tr ative reme dies befor e a trial court has subject matter jurisdiction.” Id

. at 625. The supreme court has explained that PURA, descr ibed in the act itself as “compr ehensive ,” was intended by the leg islatur e t o “compr ehend all or virtually all pertinent considerations involving elec tric utilit ies opera ting in Texas.” In re Entergy Corp. , 142 S.W .3d 316,
323 (Tex. 2004). Thus, PURA is “a perva sive reg ulatory scheme ” g ranti n g t h e P UC exclusive jurisdiction over disputes rela ted to utilit y rate s, operations, and service s. Id. ; see also Oncor Elec. Delive ry Co. v. Chaparral Energy, LLC , 546 S.W .3d 133, 140-41 (Tex. 2018) (“I n light of section 32.001(a) ’s express lang uag e and the compre hensive reg ulatory scheme PURA cre ates, we conclude that PURA g rants the PUC exclusive jurisdiction over all matters involving an elec tric utilit y ’s rate s,
operations, and service s.”).

3Cha pter 17 of PURA sets out a perva sive, compre hensive statutory sch e me g o v e r n in g the resolution of disputes betwee n customers and their utilit ies and REPs. See, e.g. , Tex. Util. Code §§ 17.001(b) (Chap t er 1 7 establishes “re tail customer protec tion standards and confe r[s] on the commission authority to adopt and enfor ce rules to protec t reta il customers from fra udulent, unfair, misleading , dece ptive, or anticompetiti ve practice s”), .004 (PUC “may adopt and enfor ce rules as

nece ssary or appropriate to car ry out this section,” wh i ch sets out customer protection standards) , .051 (PUC “shall adopt rules rela ting to cer tification, reg istration, and repor ting require ments for a

cer tificated telecommunica tions utilit y , a reta il elec tric provider, or an elec tric utilit y ”), .102 (PUC “shall adopt and enfor ce rules” aimed at ensuring “customer s are protec ted from dece ptive prac tices employ ed in obta ining authorizations of service and in the verific ation of chang e order s”), .156 (if
PUC deter

mines that billing utilit y “violated this subchapte r, the commiss i o n m ay implement penalties and other enfor ceme nt actions un d er C h apter 15” ), .157 (PUC may resolve disputes 1
betwee n reta il customer and utilit y or REP and m ay re q u i re u tilit y or REP to “re fund or cre dit

overc harg es or unauthorized char g es with interest”) ; see also id. § 39.101 (“Customer Safeg uards” ) (PUC “shall ensure that reta il customer protec tions are established” e ntitli ng customers to, inter alia , safe , reliable , and rea sonably price d elec tricity ; u n d e r s ta n d a b le b il li n g ; a c c u

r a te metering and billing; “other information or protec tions nece ssary to ensure high- quality service to customers” ; choice in

Chapter 15 g overns “Judi cial Review, Enforc ement, and Penalties,” including requiring 1 that a per son seek judicial revie w of a PUC orde r by filing a petition pursuant to sec tion 2001.171 of the Administrative Procedur es Act. See Tex. Util. Code § 15.026(a) ; see generally id. §§ 15.001- .107; see also Tex. Gov’t Code § 2001.171 (“A person who has exhausted all administrative reme dies available within a state ag ency and who is ag g rieve d by a final decision in a contested case is entitled to judi cial re view under this chapter.” )

4REPs; protec tion “fr om unfair, misleading , or d e c e p ti v e p r a c tices”; “impartial and prompt resolution

of disputes”; “T h e co m m i ssion has jurisdiction over all providers of elec tric service in enfor cing Subsections (a) -(d) and may assess civil and administrative penalties under Section 15.023 and seek civil penalties under Section 15.028.”). The supreme court has said, “F or billing disputes, the PUC’s authority is e ven more compre hensive, as it may ‘re solve disputes be tween a reta il c ustomer and a billing utilit y , service provider, [or] telecommunica tions utility .’” Southwestern Bell , 235 S.W .3d at 625-26 (quoting Tex. Util . Code § 17.157(a) ).

I sa asser ts that CenterPoi nt and Ambit violated various PUC rules and seeks damag es under the DTPA, but as the AL J observe d, I sa seeks damag es that are not authorized by PURA and

are bey ond the PUC’s authority to g rant. I sa ag ree s and arg ues that beca use the PUC does not have the ability to awa

rd him the dam age s h e re q uests, the trial court has jurisdiction over his claims. 2
He co n t en ds that he may seek such damag es in the trial court under a “hy brid claims-re solutio n
proce ss,” citing to the supreme court’s decisi o n i n S ubaru of America, Inc. v. David McD avid Nissan, Inc. , 84 S.W .3d 212 (Tex. 2002). I n that opinion, the court conclude d that the Texas Motor Vehicle Boa

rd, which had exclusive jurisdiction over the “cla ims and issues the [Tex as Motor Vehicle Commi ssion Code] g overns,” limit ed the reme dies the Boa rd could g rant, expressly allowed a party to sue under the DTP A based on Code violations, and provided that the duty of g ood faith and fair dealing imposed by the Code was “ac tionable in tor t.” Id. at 223-24. There fore , the court

C ontrary to I sa’s contention, the AL J ’s observa tion that I sa soug ht damag es bey ond th e 2 PUC’s authority does not eq uate to a “finding ” that such damag es could be soug ht elsewhe re. I ndeed, the AL J said not only that I sa soug ht damag es bey ond the PUC’s authority to g rant, but also that such dama g es “c annot be r ecove red.” 5held, “the Code cre ates a hy brid claims-re solution proc ess by which parties may seek damag es for

cer tain Code violations,” provided that the party first exhausts its “administrative reme dies to obtain

a Boa rd decision about Code violations, if any , to support a DTPA or bad-f aith claim.” Id. at 224.
Rece ntly , the supreme court discussed the hy bri d claims-re solution proce ss in the
context of PURA in Chaparral Energy , in which Chaparr al sued Oncor for brea ch of contra ct when
Oncor did not meet its obli g ations under the Ser vice Ag ree ment betwee n the par ties. 546 S.W .3d
at 137. Chaparr al soug ht actua l damag es, additional damag es, interest, attorney ’s fee s, expenses, and taxable costs and arg ued that “eve n if this case would otherwise fall within the PUC’s exclusive jurisdiction, the ‘inade quate- reme dy exception’ to the exhaustion-o f

- r e me d ie s r e q

u irement applies.” Id

. at 141. The court ex plained that the i nadequate-re medy exception applies “when t he claimant
cannot obtain an adequa

te reme dy throug h the administrative proce ss and requiring the claimant to
g o throug h the proce ss would cause the claimant irrepa rable harm” and conclude d that the exception did not apply “bec ause PURA does not preve nt Chaparr al from obtaining the damag es it seeks in the distr i ct court afte r the PUC has exercised its exclusive jurisdiction.” Id. at 141-42. The court

re i t er at ed that under the hy brid claims-re solution proce ss, the claimant must first its exhaus t administrative reme dies and obtain an ag ency decision on the issues within the ag ency ’s exclusive jurisdiction befor e filing suit to obtain relief that the ag ency cannot provide. Id

. at 142. This proce ss applies when the statutory scheme , such as PURA, nece ssitates “that an administrative ag ency with exclusive jurisdiction make cer tain finding s befor e a trial court may finally adjudicate a claim.” Id.
Assu m i n g that the hy

brid claims-re solution proce ss applies here , I sa’s suit for damag es relies on his asser tions that appellee s violated various PUC rules. Those claims of rules

6violations are within the ex clusive j urisdiction of t he P UC. See id. Howeve r, I sa did not exhaust

his administrative reme dies and obtain ag ency ruling s on thes e cl ai m s and thus cannot seek non-PURA-authorized damag es in the trial court under the hy brid proce ss. See id. ; David McD avid ,

3
84 S.W .3d at 224.

Although I sa asser

ts that he should be allowed to pursue damag es under the DTPA, citing David McD avid for support, that case involved a differ ent statutory sch em e, o n e that specific ally allowed someone who has sustained actua l damag es to bring a DTPA claim. 84 S.W .3d
at 225. PURA does not contain such a provision. As I sa notes, Section 17.203 states, “The customer safe g uards provided by this subchapte r are in addition to safe g uards provided by other law or ag ency rules.” Tex. Uti l

. C o d e § 17.203(a)

. Howeve r, that provision is located in Subchapter E, which
g overns protecting cons u m ers ag ainst utilit y service disconnec tion, and no such si milar provision
appea rs elsewhere in PURA. Further , Chapter 17 of PURA is intended to g ive t he P UC authority
to act to “prote ct reta il customers from fra udulent, unfair, misleading , dece ptive, or anticompetitive
prac tices,” which would seem to supplant the DTP A i n t h e utilit y context. Id. § 17.001(b), see generally id. §§ 17.001-.203. Fr om the l ang uag e u sed i n PURA as a whole, we conclude that the

I sa arg ues that in the order s addre ssing ap p el l ees’ motions for summary decision and 3 motions to dismiss , the AL J found that appellee s had violated PUC Rule 25.22. See 16 Tex. Admin. Code § 25.22 (2018) (Pub. Util. Comm’n of Tex., Request for Service ). Howeve r, the AL J ’s order s deter mined that fac t issues rema ined as to Ambi t’s knowledg e of I sa’s int ended electr ical use and CenterPoint’s culpability and responsibility t o Ambit, its customer; disag ree d with CenterPoint’s as sertion that it was “ca

teg orica lly exempt” from Rule 25.22; and deter mined that Ambit had n o t complied with another PUC rule not relied on here by I sa. The AL J did not make a fi n d i n g that appellee s had violated Rule 25.22, and inst ea d s t at ed t hat the rec ord would not support summary d ec i s i o n o f whether that rule was violated. Fur ther, as stated ear lier, I sa did not exhaust his administrative re medies. 7leg islature intended f or Chapter

17 to gove rn in the fa ce of a cla im of dece ptive trade prac tices by

a utilit y or REP and that it did not intend that Chapter 17’s g ener al provisions g overning consumer disputes unrela ted to the disconnec tion of utilit y service could be supplemented by suits under other
consumer pr otection statutes.

Be cause Chapter 17 provides the PUC with exclusive jurisdiction over a consumer’ s disput es with his elec tric utilit y or REP and provides the exclusive reme dies available in such a dispute, see i d

. § 17.157; Southwestern Bell , 235 S.W .3d at 625-26, the PUC has exclusive jurisdiction over I sa’s disp u t e wi t h C en terPoint and Ambit. I sa may not attempt to sidestep the 4 administrative proc ess, a proce ss tha t he did not exhaust, by this indepe ndent suit for damag es not authorized under PURA. See Entergy , 142 S.W .3d at 323. We overr ule I sa’s complaints on appea l.

Conclusion
I sa did not exhaust his admi n i s trative reme dies and may not now seek in the trial
court further reme dies rela ted to his dispute with Ambit and CenterPoint. The trial court proper ly dismiss ed his suit for want of jurisdiction. W e af

firm the trial c ourt’s orde r of dismissal.

Our conclusion is supported by the supreme court’s opinion in Chaparral Energy , in which 4 it approve d of lower- court opinions holding that the PUC had exclusive jurisdiction over claims for brea ch of contra ct—one rela ted to a billing dispute and the other to th e d elay ed provision of service s—and held, “We ag ree with these courts’ construction and ap plication of the scope of PURA’s g rant of exclusive ju ri s d i ct i o n to the PUC. Chaparr al’s complaints arise from Oncor ’s alleg ed brea ch of the Service Ag ree ment, in which Oncor ag ree d to ‘provide addition al elec tric fac iliti es sufficie nt t o p ro v i de elec tric service ’ for Chaparr al’s wells.” Oncor Elec. Delive ry Co. v. Chaparral Energy

, LLC , 546 S.W .3d 133, 140 (Tex. 2018); see also id. at 141 (PURA “se ction 17.157 further

undersc ores that PURA has e stablished a compr ehensive reg ulatory scheme ”). 8__________________________________________ Cindy Olson Bour land, J ustice
Be fore J ustices Pury ear , Pemberton, and B ourland Affir med Filed: Aug ust 29, 2018

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