No. 03
- 14
- 00706
- CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS AUSTIN, TEXAS E NTERGY T EXAS , I NC ., Appellant,

v. P UBLIC U TILITY C OMMISSION OF T EXAS , ET AL ., Appellees.

__________________________________________________________________ STATE AGENCIES ’ REPLY TO APPELLANT’S RESPONSE TO STATE AGENCIES’ MOTION TO STRIKE AND RESPONSE TO MOTION F OR THE COURT TO TAKE JUDICIAL NOT ICE

__________________________________________________________________ TO THE HONORABLE THIRD COURT OF APPEALS: Appellee S tate of Texas A gencies and I nstitutions of H igher Education (State Agencies) file this Reply to Appellant Entergy Texas Inc.’s (ETI’s) Response to State Agencies’ Motion to Strike and Response to ETI’s Motion for the Court
to Take Judicial Notice . In support of their own motion and in opposition to ETI’s, State Agencies show as follows.
I. Testimony and Orders are different. ETI conflates the nature of documents that are appropriate for attachment as appendices . Contrary to ETI’s characterization, there is an appreciable difference
between evidence offered within an administrative agency’s proceeding and the final

1 ACCEPTED 03-14-00706-CV 5270049 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/13/2015 2:46:24 PM JEFFREY D. KYLE

CLERKdecision of the agency, as documented in a Final Order signed by the agency’s
Commissioners. Becaus e ETI appended evidence, in the form of witness testimony, to its brief, the appendices and linked testimony should be properly stricken. Texas Rule of Appellate Procedure (TRAP) 38.1(i) requires that a brief must
contain “ appropriate citations to authorit ies and to the record.” TRAP 38.1(k)(2) allows optional contents for the appendix to a brief in civil cases, specifically, items pertinent to the issues or points presented for review, including “copies or excerpts of relevant court opinions, laws, documen ts on which the suit was based, pleadings, excepts from the reporter’s record, and similar material.” When read together, subsections (i) and (k) provide for the citation to and appending of authorities, such
as case law and statutes , or other documents fr om related proceedings

. Where judicial review of an Administrative decision is sought, TRAP 36 .2 allows for the
inclusion of the record of the underlying agency proceeding in the appellate record

. Nowhere in the rules of appellate procedure are evidentia ry filings from other, unrelated agency proceedings made eligible for inclusion as appendices to a brief in
this Court.
ETI cites to Oncor Elec. Delivery Co. LLC v. Public Util. Comm’n of Tex. 1 to support its assertion that this Court may consider the tes timony presented in ETI’s appendices. However , the Oncor case does not support ETI’s argument. In Oncor ,

1 406 S.W.3d 253, 267 (Tex. App.

— Austin 2013, no pet.)

. 2this Court ruled that it could consider prior Public Ut ility Commission (PUC or Commission) orders; that is, it considered the Commission’s decisions i n previous
cases. It did not consider evidence offered in any of the cases that gave rise to those decisions. In fact, the consideration of Commission decisions was explicitly contrasted with the consideration of evidence regarding fact issues from other

a gency proceedings, which the Oncor court affirmed had previously been properly proscribed. 2 The testimony put forth by ETI is not properly appended; it should be
stricken.
II. Citations should include page numbers. State Agencies’ objection to ETI’s incomplete citations concern s loca ting
relevant references within the referenced documents, rather than locating the
documents themselves. As stated in State Agencies’ Motion to Strike, neither appellate court nor trial court is required to wade through en tire documents and
testimonies to locate proof. It is the parties’ responsibility to provide page numbers and, if necessary, line numbers, for the court’s direction. 3 ETI’s appended and linked documents are voluminous; without page number citations, they a re neither useful nor eligible for consideration by this Court.

2 Id . (citing R eliant Energy, Inc. v. Public Util. Comm’n of Tex. , 153 S.W.3d 174, 199

– 200 (Tex. App.

— Austin 2004, pet. denied). 3 See Arredondo v. Rodriguez , 198 S.W.3d 236, 238

– 39 (Tex. App.

— San Antonio 2006, no pet.). 3III. Direction to the PUC Interchange is inappropriate
. ETI’s repeated citation s directing the Court to the PUC Interchange to review PUC proceedings is inappropriate. As noted in State Agencies’ Appellee’s Brief and explained in State Agencies’ Motion to Strike, this C ourt cannot consider evidence that is not formally included in the appellate record. 4 Appellant’s repeated efforts to direct the Court to the vast depths of the PUC Interchange, whic h holds all filings in all Commission dockets and projects for multiple decade s , are improper citations to
voluminous evidence outside the administrative record.
IV. ETI’s Motion for Judicial Notice should be denied. The distinction between testimony and orde rs, outlined in S ection I, is also relevant with respect to ETI’s Motion for the Court to Take Judicial Notice. Judicial Notice of agency decisions is different than judicial notice of evidence from previous agency proceedings , in the same way that a court ’s decision is eligible for judicial
notice while evidence from the proceeding leading to that decision is not

. “ It is inappropriate for a trial judge to take judicial notice of testimony even in a retrial of
the same case. ” 5 The distinction between testi mony and final decisions of a court or agency was explained by the Dallas Court of Appeals: “testimony is a mutable

4 Cantu v. Horany , 195 S.W.3d 867, 870 (Tex. App.

— Dallas 2006, no pet.) ; Carlisle v. Philip Morris, Inc. , 805 S.W.2d 498, 501 (Tex. App.

— Austin 1991, writ denied).
5 Guyton v. Monteau , 332 S.W.3d 687, 693 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) (quoting Muller v. Leyendecker, 697 S.W.2d 668, 675 (Tex. Civ. App.

— San Antonio 1985, writ ref'd n.r.e.) ; see also In re J.C. , 346 S.W.3d 189 , 192

- 93 Tex. App.

— Houston [14 Dist.], 2011, no pet). 4product of human memory and subject to different interpretations. It does not carry the high degree of indisputability required to justify t aking judicial notice.” 6 Testimony also cannot be viewed in a vacuum, without the context of the entire proceeding in which it was first offered. ETI has requested judicial notice be taken of testimony from Docket No. 34800. This proceeding , which spanned over two years, co ntains over 2500 filings. The Commission has already determined how
much weight to give to the evidence presented in that proceeding, as recorded in the
final order for Docket No. 34800. The fact that the final order does n ot mention the testimony is telling. To suggest th is Court should go to the interchange to view one of the 2500 filings is to suggest the Court should supplant the Commission’s decision on what weight the evidence should be given. Evidence offered by a p arty in previous proceeding s is neither reliable nor useful to this Court in this proceeding.
ETI’s Motion for Judicial Notice should be denied.
V. Conclusion WHEREFORE, PREMISES CONSIDERED, State Agencies request that
their Motion to Strike be granted, and that ETI’s Motion for the Court to Take
Judicial Notice be denied. State Agencies also pray for any further relief to which they may be entitled.

6 Ga rza v. State, 996 S.W.2d 276, 280 (Tex. App.

— Dallas 1999, pet. ref'd) 5Dated: May 1 3 , 2015 Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation DAVID A. TALBOT, JR. Chief, Administrative Law Division
/s/ Sara R. Hammond Katherine H. Farrell State Bar No. 24032396 Sara R. Hammond State Bar No. 24081003 Assistant Attorney s General O FFICE OF THE T EXAS A TTORNEY G ENERAL Administrative Law Division P.O. Box 12548 Austin, Texas 78711 Telephone: (512) 475

- 4173 Facsimile: (512) 320

- 0167 E

- mail: katherine.farrell@texasattorneygeneral.gov sara.hammond@texasatt orneygeneral.gov Counsel for Appellee State Agencies

6CERTIFICATE OF SERVICE I certify that a true and correct copy of State Agencies Reply to ETI’s Response to State Agencies’ Motion to Strike and Response to ETI’s Motion for the Court to Take Judicial Notice was transmitted by electronic filing on the 13th day of May , to the parties of record as listed below:

ENTERGY TEXAS , INC
. , Appellant John F. Williams Marnie A. McCormick D UGGINS W REN M ANN & R OMERO , L LP One American Center 600 Congress Suite 1900 Austin, Texas 787 67 Telephone: (512) 744

- 9300 Facsimile: (512) 744

- 9399 jwilliams@dwmrlaw.com mmccormick@dwmrlaw.com

OFFICE OF PUBLIC UTILITY COUNSEL, Appellee Ross Henderson Assistant Public Counsel O FFICE O F P UBLIC U TILITY C OUNSEL 1701 N. Congress Avenue Suite 9

- 180 P.O. Box 12397 Austin, Texas 78711

- 2397 Telephone: (512) 936

- 7500 Facsimile: (512) 936

- 7525 or 936

- 7520 ross.henderson@opuc.texas.gov

7PUBLIC UTILITY COMMISSION OF TEXAS, Appellee Elizabeth Sterling Assistant Attorney General O FFICE OF THE A TTORNEY G ENERAL Environmental Protection Division P.O. Box 12548, Capitol Station Austin, Texas 78711

- 2548 Telephone: (512) 475

- 4152 Facsimile: (512) 320

- 0911 Elizabeth.Sterling@texasattorneygeneral.gov
TEXAS INDUSTRIAL ENERGY CONSUMERS, Appellee Rex D. Van Middlesworth Benjamin Hallmark T HOMPSON K NIGHT , LLP 98 San Jacinto Blvd, Ste. 1900 Austin, Texas 78701 Telephone: (512) 469.6100 Facsimile: (512) 469.6180 rex.vanm@tklaw.com benjamin.h allmark@tklaw.com

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

8