No. 03-14-00706-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN, TEXAS

ENTERGY TEXAS, INC., 

Appellant, 

v.

PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.,

Appellees.

__________________________________________________________________

STATE AGENCIES’ 

REPLY TO APPELLANT’S RESPONSE TO 

STATE AGENCIES’ MOTION TO STRIKE 

AND 

RESPONSE TO MOTION FOR THE COURT 

TO TAKE JUDICIAL NOTICE

__________________________________________________________________

TO THE HONORABLE THIRD COURT OF APPEALS:

Appellee State of Texas Agencies and Institutions of Higher 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

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 5/13/2015 2:46:24 PM JEFFREY D. KYLE Clerk
decision of the agency, as documented in a Final Order signed by the agency’s 

Commissioners. Because 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 authorities 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, documents 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 from 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 evidentiary 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 testimony 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.).

2

 
this Court ruled that it could consider prior Public Utility Commission (PUC or 

Commission) orders; that is, it considered the Commission’s decisions in 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 

agency 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 concerns locating 

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 entire 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 are neither useful 

nor eligible for consideration by this Court.

2 Id. (citing Reliant 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.).

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III. Direction to the PUC Interchange is inappropriate.

ETI’s repeated citations 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 Court 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, which holds all filings in 

all Commission dockets and projects for multiple decades, 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 orders, outlined in Section 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 testimony 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).

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product of human memory and subject to different interpretations. It does not carry 

the high degree of indisputability required to justify taking 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, contains 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 not mention the 

testimony is telling. To suggest this 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 party in 

previous proceedings 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 Garza v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. ref'd)

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Dated: May 13, 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 Attorneys General

OFFICE OF THE TEXAS ATTORNEY GENERAL

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@texasattorneygeneral.gov

Counsel for Appellee State Agencies

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CERTIFICATE 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

DUGGINS WREN MANN & ROMERO, LLP

One American Center

600 Congress Suite 1900

Austin, Texas 78767

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

OFFICE OF PUBLIC UTILITY COUNSEL

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

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PUBLIC UTILITY 

COMMISSION

OF TEXAS, 

Appellee

Elizabeth Sterling

Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

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

THOMPSON KNIGHT, LLP

98 San Jacinto Blvd, Ste. 1900

Austin, Texas 78701

Telephone: (512) 469.6100 

Facsimile: (512) 469.6180 

rex.vanm@tklaw.com

benjamin.hallmark@tklaw.com

/s/ Sara R. Hammond

Sara R. Hammond

Assistant Attorney General

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