Petition for Writ of Mandamus Conditionally Granted, in Part, and Opinion 

filed April 2, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00095-CV

IN RE ONCOR ELECTRIC DELIVERY CO. LLC; ONCOR ELECTRIC 

DELIVERY CO. NTU LLC; AEP TEXAS INC.; AMERICAN ELECTRIC 

POWER CO; CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC; 

AND CENTERPOINT ENERGY, INC., Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

281st District Court

Harris County, Texas

Trial Court Cause No. 2021-41903

OPINION

In February 2021 Winter Storm Uri swept over Texas resulting in a recordsetting demand for energy coupled with power shortages and electrical outages
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across much of the state. After the storm, thousands of customers sued hundreds 

of companies participating in the Texas electricity market seeking damages related 

to power outages during the storm. The cases have been consolidated for pretrial 

proceedings before a multi-district litigation (“MDL”) Court in Harris County. 

This mandamus is brought by transmission and distribution utilities AEP 

Texas Inc.; American Electric Power Co., Inc.; CenterPoint Energy Houston 

Electric, LLC; CenterPoint Energy, Inc.; Oncor Electric Delivery Co., LLC; and 

Oncor Electric Delivery Co., NTU LLC (collectively “relators” or “TDUs”). See 

Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In their petitions, the 

TDUs ask this Court to compel respondent, the Honorable Sylvia A. Matthews, 

presiding judge of the MDL Court, to vacate her January 26, 2023 orders to the 

extent respondent denied the TDUs’ Rule 91a motions to dismiss.

We conditionally grant, in part, mandamus relief.

I. Background

During Winter Storm Uri, the Electric Reliability Council of Texas 

(“ERCOT”) escalated from a “Level 1 Emergency” to a “Level 3 Emergency” (the 

highest state of emergency) within the span of an hour on February 15, 2021. To 

address the Level 3 Emergency and to preserve the grid infrastructure, ERCOT 

ordered the TDUs to “load shed,” or interrupt power, “to ‘maintain frequency’ 
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across the ERCOT system.” The TDUs’1load shedding resulted in the interruption

of electric service to millions of Texans.

Because winter weather conditions remained severe, ERCOT kept the Level

3 Emergency in effect for four days. On February 19, sufficient power generation 

came back online and ERCOT lifted the Level 3 Emergency, allowing TDUs—per 

ERCOT directives—to restore service to customers shut off under the load shed 

orders.

Thousands of customers filed hundreds of suits for damages arising from 

interruptions in electricity service or the failure to warn of the same. ERCOT 

moved to transfer and consolidate the cases into an MDL. The MDL Panel granted 

ERCOT’s motion and created the Winter Storm Uri MDL pretrial court for all 

claims concerning “power shortages and electrical outages during Winter Storm 

URI.” The parties agreed to proceed in the MDL with bellwether cases, four of 

which named TDUs as defendants—styled Daniels, Peterman, Edwards, and 

Turner.

2 Respondent stayed all cases and signed Case Management Order No. 1,

1 Transmission and distribution utilities, or TDUs, take electricity generated by others (power 

generation companies) and transmit it through the TDUs’ infrastructure, including power poles and 

electrical lines.

2 The four bellwether cases are as follows: 

1. Daniels v. CenterPoint Energy, Inc., et al., Cause No. 2021-18513, in the 281st

Judicial District Court of Harris County, Texas (“Daniels”);

2. Edwards, et al. v. ERCOT, Inc., et al., No. 2021-84438, in the 281st Judicial 

District Court of Harris County, Texas (“Edwards”);

3. Peterman, et al. v. ERCOT, Inc., et al., Cause No. 2021-18532, in the 164th

Judicial District Court of Harris County, Texas (“Peterman”); and

4. Turner, et al. v. NRG Texas Power, et al., Cause No. 2021-24797, in the 164th

Judicial District Court of Harris County, Texas (“Turner”).
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which detailed a process by which defendants could file motions to dismiss the

bellwether petitions. 

In the bellwether petitions, the plaintiffs allege that defendants proximately 

caused their alleged injuries through purported negligence, gross negligence, 

tortious interference with plaintiffs’ contracts with their retail electric providers, 

civil conspiracy, and infliction of a private nuisance. Under Texas Rule of Civil 

Procedure 91a, the TDUs moved to dismiss the four bellwether cases, asserting 

that the plaintiffs’ claims lack any basis in law or fact. Plaintiffs amended their 

petitions, and the TDUs filed amended Rule 91a motions to dismiss. In their 

motions, the TDUs maintained that they are governed by tariffs and that Texas law 

precludes liability for service interruptions in emergency circumstances, such as 

Winter Storm Uri. Plaintiffs filed responses in opposition, maintaining that the 

tariffs do not abrogate the TDUs’ common law duties. The TDUs filed replies in 

support of their motions to dismiss. 

On January 26, 2023, respondent signed orders granting in part and denying 

in part the TDUs’ amended Rule 91a motions to dismiss the petitions in the four 

bellwether cases. Respondent granted the TDUs’ motion to dismiss with respect to 

plaintiffs’ claims for tortious interference with a contract and for civil conspiracy, 

concert of action, and indivisible injury. Respondent denied the TDUs’ motions to 

dismiss with respect to plaintiffs’ claims for negligence, gross negligence, and 

nuisance. Additionally, respondent denied the TDUs permission to seek an 

interlocutory appeal. 
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The TDUs now seek mandamus review to the extent that respondent denied 

their Rule 91a motions. In their petition, the TDUs argue that the respondent erred 

as a matter of law in denying the TDUs’ motions to dismiss as to plaintiffs’ causes 

of action for negligence, gross negligence, and private nuisance in the four 

bellwether cases. The TDUs maintain that they are not liable for plaintiffs’ alleged 

damages in light of Texas Supreme Court precedent and the comprehensive

regulatory scheme, including the TDUs’ tariffs for retail delivery service. The 

TDUs also contend that under Texas Supreme Court precedent, an alleged failure 

to supply electricity for delivery to retail consumers is not a nuisance injury, and

plaintiffs’ pleadings do not allege the elements of intentional, negligent, or strict 

liability nuisance, as required to recover for a such an injury. The TDUs further 

claim that, under Texas law, the discontinuation of electricity merely creates the

condition by which alleged resulting injuries occur and is not the proximate cause 

of any injury to plaintiffs. Additionally, the TDUs assert that they have no 

adequate remedy by appeal if they are required to litigate the 230-plus suits in this 

MDL before obtaining appellate resolution of the threshold legal questions 

presented in their petition for writ of mandamus. 

In their response, plaintiffs argue that TDUs’ petition mischaracterizes 

plaintiffs’ pleadings. Plaintiffs maintain that Rule 91a dismissal cannot be based 

upon twisting or contradicting plaintiffs’ pleadings when at this stage in the 

proceedings, plaintiffs’ allegations are to be taken as true by the court and 

accorded all reasonable inferences that may be drawn therefrom. Plaintiffs assert 

that the filed-rate doctrine, also known as the filed-tariff doctrine, does not entitle 
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the TDUs to dismissal. Plaintiffs contend that a tariff’s applicability and 

reasonableness cannot be determined at the pleadings stage. Plaintiffs further 

argue that, even if a tariff is found to be applicable and presumed reasonable, the

presumption is rebuttable, and fails the “take Plaintiffs’ pleadings as true” test of 

Rule 91a and fails the “one rational decision” prong of the two-pronged mandamus 

standard. Additionally, plaintiffs assert that the tariffs do not shield the TDUs 

from liability from their gross negligence, intentional acts, or non-good faith 

compliance with ERCOT orders. With respect to the TDUs’ contention that 

plaintiffs’ do not adequately allege a nuisance injury, plaintiffs argue that 

contention is contradicted by case law relied upon by the TDUs. Plaintiffs

maintain they adequately allege that the TDUs knew that substantial interference 

with plaintiffs’ use and enjoyment of their property was substantially certain to 

result from depriving them of electricity—and thus heat and potable water—during 

severe winter conditions. 

II. Standard of Review

Mandamus relief is appropriate when a trial court abuses its discretion in 

denying a Rule 91a motion to dismiss. In re Farmers Tex. Cnty. Mut. Ins. Co., 621 

S.W.3d 261, 266 (Tex. 2021) (orig. proceeding). To establish entitlement to 

mandamus relief in this context, the TDUs must demonstrate (1) that respondent 

abused her discretion by denying their Rule 91a motions, and (2) the TDUs have

no adequate remedy by appeal. See In re Essex, 450 S.W.3d 524, 526 (Tex. 2014) 

(per curiam) (orig. proceeding).
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Rule 91a of the Texas Rules of Civil Procedure provides that a party “may 

move to dismiss a cause of action on the grounds that it has no basis in law or 

fact.” See Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 

S.W.3d 651, 654 (Tex. 2020) (quoting Tex. R. Civ. P. 91a.1). “A cause of action 

has no basis in law if the allegations, taken as true, together with inferences 

reasonably drawn from them, do not entitle the claimant to the relief sought.” Id. 

“A cause of action has no basis in fact if no reasonable person could believe the 

facts pleaded.” Id. In reaching its determination, “the court may not consider 

evidence . . . and must decide the motion based solely on the pleading of the cause 

of action, together with any pleading exhibits permitted by Rule 59.” In re First 

Rsrv. Mgmt., L.P., 671 S.W.3d 653, 659-60 & n.16 (Tex. 2023) (orig. proceeding)

(quoting Tex. R. Civ. P. 91a.6). We review the merits of a Rule 91a motion de 

novo. Bethel, 595 S.W.3d at 654 (citing City of Dallas v. Sanchez, 494 S.W.3d 

722, 724 (Tex. 2016) (per curiam). 

III. Analysis

A. Whether respondent abused her discretion by denying the TDUs’ Rule 

91a motions?

1. Filed-rate doctrine

The “filed-rate” or “filed-tariff” doctrine applies when state law creates a 

state agency and a statutory scheme under which the agency determines reasonable 

rates for the service provided. See S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 

216 (Tex. 2002). A tariff filed with and approved by an administrative agency 

under a statutory scheme is presumed reasonable unless a litigant proves otherwise. 
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CenterPoint Energy Res. Corp. v. Ramirez, 640 S.W.3d 205, 212 & n.30 (Tex. 

2022) (citing Grant, 73 S.W.3d at 216). Filed tariffs govern a utility’s relationship 

with its customers and have the binding force and effect of law until suspended or 

set aside. See id. & n.32 (citing Grant, 73 S.W.3d at 217). Consequently, the 

filed-rate doctrine prohibits a customer from suing a utility in contract or tort over 

issues governed by the terms of a publicly filed tariff. See Grant, 73 S.W.3d at 

217.

2. The TDUs’ tariff

TDUs provide electricity subject to the terms of a tariff. See 16 Tex. Admin. 

Code § 25.214(b). “Each tariff filed with the PUC [Public Utility Commission] 

contains certain provisions that are specific to the filing utility.” City of 

Richardson v. Oncor Elec. Delivery Co., LLC, 539 S.W.3d 252, 257 (Tex. 2018). 

The PUC’s rules, however, also contain a “pro-forma tariff,” the provisions of 

which must be incorporated exactly as written into each utility’s tariff. Id. (citing

16 Tex. Admin. Code § 25.214(b)–(d)). “In other words, every TDU in the state 

has the same pro-forma tariff provisions in their filed tariff.” Id. at 257-58.

Section 5.2. of the TDUs’ pro forma tariff, which limits the TDUs’ liability, 

is at issue in this case.:

• 5.2.1 Liability between company and retail customers 

This Tariff is not intended to limit the liability of Company or Retail 

Customer for damages except as expressly provided in this Tariff.
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Company will make reasonable provisions to supply steady and 

continuous Delivery Service, but does not guarantee the Delivery 

Service against fluctuations or interruptions. Company will not be 

liable for any damages, whether direct or consequential, including, 

without limitation, loss of profits, loss of revenue, or loss of 

production capacity, occasioned by fluctuations or interruptions 

unless it be shown that Company has not made reasonable provision 

to supply steady and continuous Delivery Service, consistent with the 

Retail Customer’s class of service, and in the event of a failure to 

make such reasonable provisions, whether as a result of negligence 

or otherwise, Company’s liability shall be limited to the cost of 

necessary repairs of physical damage proximately caused by the 

service failure to those electrical delivery facilities of Retail 

Customer which were then equipped with the protective safeguards 

recommended or required by the then current edition of the 

National Electrical Code. 

Company will make reasonable provisions to provide Construction 

Service, but does not guarantee the timeliness of initiating or 

completing such Construction Service nor the suitability of such 

facilities for Retail Customer’s specific uses. Company will not be 

liable for any damages, whether direct or consequential, including, 

without limitation, loss of profits, loss of revenue, or loss of 

production capacity, occasioned by the failure to provide timely or 

suitable Construction Service. The term “Construction Service” in 

this paragraph includes any and all services that (a) are provided, 

(b) fail to be provided, or (c) fail to be timely provided by Company, 

from the time Retail Customer first contacts Company with respect 

to the provision of any type of Construction or Delivery Service.

However, if damages result from failure to provide timely or suitable 

Construction Service or fluctuations or interruptions in Delivery 

Service that are caused by Company’s or Retail Customer’s gross 

negligence or intentional misconduct, this Tariff shall not preclude 

recovery of appropriate damages when legally due.
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• 5.2.2 Limitation of duty and liability of competitive retailer 

Competitive Retailer has no ownership, right of control, or duty to 

Company, Retail Customer or other third party, regarding the 

design, construction or operation of Company’s Delivery System. 

Competitive Retailer shall not be liable to any person or entity for 

any damages, direct, indirect or consequential, including, but 

without limitation, loss of business, loss of profits or revenue, or loss 

of production capacity, occasioned by any fluctuations or 

interruptions of Delivery Service caused, in whole or in part, by the 

design, construction or operation of Company’s Delivery System.

• 5.2.4 Force majeure

Neither Company nor Competitive Retailer shall be liable for 

damages for any act or event that is beyond such party’s control and 

which could not be reasonably anticipated and prevented through 

the use of reasonable measures, including, but not limited to, an act 

of God, act of the public enemy, act of terrorism, war, insurrection, 

riot, fire, explosion, labor disturbance or strike, wildlife, 

unavoidable accident, equipment or material shortage, breakdown 

or accident to machinery or equipment, or good-faith compliance 

with a then valid curtailment, order, regulation or restriction 

imposed by governmental, military, or lawfully established civilian 

authorities, including any order or directive of the Independent 

Organization.

• 5.2.5 Emergencies and necessary interruptions 

Company may curtail, reduce voltage, or interrupt Delivery Service in 

the event of an emergency arising anywhere on the Delivery System 

or the interconnected systems of which it is a part, when the 

emergency poses a threat to the integrity of its system or the systems 

to which it is directly or indirectly connected if, in its sole judgment, 

such action may prevent or alleviate the emergency condition. 

Company interrupt service when necessary, in Company’s sole 
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judgment, for inspection, test, repair, or changes in Company’s 

Delivery System, or when such interruption will lessen or remove 

possible danger to life or property, or will aid in the restoration of 

Delivery Service. 

Company shall provide advance notice to Retail Customer’s 

Competitive Retailer, if reasonably possible. Such notice may be 

made by notice to all certificated Competitive Retailers operating 

within Company’s service territory, specifically identifying the 

location, time, and expected duration of outage. Notice shall also be 

provided, if reasonably possible, to those Retail Customers designated 

as Critical Care Residential Customers, Chronic Care Residential 

Customers, Critical Load Industrial Customers, and Critical Load 

Public Safety Customers. If Retail Customer believes it qualifies for 

designation as a Critical Care Residential Customer, Chronic Care 

Residential Customer, Critical Load Industrial Customer, or Critical 

Load Public Safety Customer under P.U.C. SUBST. R. 25.497, Retail 

Customer may apply for designation as provided in P.U.C. SUBST. R. 

25.497. 

Nothing herein shall prevent the Company from being liable if found 

to be grossly negligent or to have committed intentional misconduct 

with respect to its exercise of its authority in this Tariff. 

The operation of BPL shall not interfere with or diminish the 

reliability of Company’s Delivery System. Should a disruption in the 

provision of Delivery Service occur due to BPL, Company shall 

prioritize restoration of Delivery Service prior restoration of BPLrelated systems.

See 16 Tex. Admin. Code § 25.214(d) (Pro-forma retail delivery tariff. Tariff for 

retail delivery service) (emphasis in original).
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3. Whether courts can consider the tariffs and filed-rate doctrine on 

a Rule 91a motion?

As a matter of first impression, we must decide whether courts can consider 

the tariff and filed-rate doctrine on a Rule 91a motion to dismiss. Plaintiffs argue 

that courts are prohibited from considering anything other than plaintiffs’ 

pleadings, maintaining that the tariff does not apply if it is unreasonable, and 

according to plaintiffs’ argument, a tariff’s reasonableness and applicability cannot 

be decided at the pleadings stage. We disagree. 

It is undisputed that each TDU is bound by a publicly-filed tariff and that

“[t]he filed-rate doctrine prohibits a customer from suing a utility in [] tort” over an 

issue that the “publicly-filed tariff’s terms govern.” Grant, 73 S.W.3d at 217. 

Additionally, it is undisputed that the tariffs are presumed reasonable unless a 

litigant proves otherwise. Ramirez, 640 S.W.3d at 212 & n. 30 (citing Grant, 73 

S.W.3d at 216). The tariffs “have the force and effect of law.” Grant, 73 S.W.3d 

at 222. 

As set forth, supra, under Rule 91a, a baseless cause of action is dismissed at 

the pleadings stage “if the allegations, taken as true, together with inferences 

reasonably drawn from them do not entitle the claimant to the relief sought.” Tex. 

R. Civ. P. 91a. The tariff provisions on which the TDUs rely in their motions to 

dismiss are legally required by Section 25.214 of the Administrative Code to be 

included “exactly as written.” See Tex. Admin. Code § 25.214(b). Moreover, the 

pro forma tariff is made part of the Administrative Code. Id. at § 25.214(d). 

Plaintiffs neither pleaded that the tariffs are unreasonable, nor did they contend that 
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the tariffs are unreasonable based on the facts alleged in their petitions. Because 

plaintiffs fail to allege facts to rebut the presumption of reasonableness, we 

conclude that courts should consider the tariffs and the filed-rate doctrine when 

determining a Rule 91a motion to dismiss.

4. Negligence claims

“The threshold inquiry in a negligence case is duty.” Elephant Ins. Co. v. 

Kenyon, 644 S.W.3d 137, 145 & n.25 (Tex. 2022) (quoting Greater Hous. Transp. 

Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). The existence of duty is a 

“question of law for the court to decide from the facts surrounding the occurrence 

at issue.” Id. at 145 & n.27 (quoting Phillips, 801 S.W.2d at 525). If there is no 

duty of care, there is no viable lawsuit based on negligence. “The nonexistence of 

a duty ends the inquiry into whether negligence liability may be imposed.” Van 

Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998).

In this case, plaintiffs do not allege a violation of the tariffs;

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thus, plaintiffs 

must establish an applicable duty under common law. Under the facts as pleaded 

by plaintiffs, the TDUs were negligent in interrupting electricity in response to 

3 Additionally, plaintiffs do not attempt to the make a showing that the TDUs’ tariff’s liability 

limits are unreasonable. Applying the filed-rate doctrine, the Texas Supreme Court has determined that:

a tariff's limitation on liability for economic damages is reasonable because a utility: 

(1) must provide nondiscriminatory service to all customers within its area; (2) must 

maintain uniform rates and reduce costs; (3) cannot accurately estimate its exposure to 

damages or efficiently insure against risks; (4) cannot increase rates for all customers 

based on losses one specific class of customers incurs; and (5) must comply with PUC 

regulations.

Grant, 73 S.W.3d at 217 (citing Houston Lighting & Power Co. v. Auchan USA, Inc., 995 S.W.2d 668, 

673-75 (Tex 1999). 
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ERCOT’s Level 3 Emergency declaration and emergency load shed orders. The 

TDUs’ tariff, however, provides under Section 5.2.5, entitled “Emergencies and 

Necessary Interruptions,” that the TDU “may . . . interrupt Delivery Service in the 

event of an emergency . . . if, in its sole judgment, such action may prevent or 

alleviate the emergency condition.” 16 Tex. Admin. Code § 25.214(d) (tariff 

§ 5.2.5). By its terms, Section 5.2.5 precludes a common-law duty that would 

control how a TDU interrupts electricity service to resolve an emergency such as 

Winter Storm Uri. See Grant, 73 S.W.3d at 217 (“[A] utility’s obligations to its 

customers cannot exceed its duties under a filed tariff.”). 

The TDUs were entitled to dismissal of the plaintiffs’ claims for negligence 

because Texas law does not impose on TDUs common-law negligence duties 

associated with emergency load shedding, ensuring adequate generation, or 

warning of anticipated power outages. The plain language of the tariff bars the 

TDUs’ liability for ordinary negligence. See Grant, 73 S.W.3d at 217 (“aggrieved 

customers cannot enforce alleged rights that contradict the tariff’s provisions”). 

Accordingly, we conclude that the respondent abused her discretion in denying the 

TDUs’ motions to dismiss the plaintiffs’ negligence claims. 

5. Gross negligence or intentional misconduct claims

The TDUs’ tariff does not shield the TDUs from gross negligence or 

intentional misconduct. Section 5.2.1 provides that “if damages result from . . . 

fluctuations or interruptions in Delivery Service that are caused by [TDU’s] gross 

negligence or intentional misconduct, this Tariff shall not preclude recovery of 

appropriate damages when legally due.” 16 Tex. Admin. Code 25.214(d) (tariff 
15

§ 5.2.1). Additionally, Section 5.2.5 provides that “[n]othing herein shall prevent 

the Company from being liable if found to be grossly negligent or to have 

committed intentional misconduct with respect to its exercise of its authority in this 

Tariff.” Id. (tariff § 5.2.5).

The TDUs argue, however, that Section 5.2.4, the force majeure provision of 

the TDUs’ tariff, bars plaintiffs’ gross negligence and intentional misconduct 

claims. The TDUs’ contend that “the force majeure provision does not distinguish 

among theories of liability but broadly exculpates TDUs from damages that come 

within the force majeure definition.” While Section 5.2.4 does exclude liability for 

damages “for any act or event that is beyond such party’s control and which could 

not be reasonably anticipated and prevented through the use of reasonable 

measures,” plaintiffs’ core allegations against the TDUs complain of the manner 

that the TDUs executed the load shed orders. Plaintiffs pleaded that “[t]his 

catastrophe was not caused by an act of God, but instead was caused by intentional 

decisions by individual Defendants made both before and during Winter Storm Uri 

that were known to other Defendants and caused multiple operational failures 

which combined to cause the failure of the ERCOT grid.” Plaintiffs assert 

numerous allegations of mismanagement by the TDUs in responding to the 

ERCOT load shed orders that they contend constitute gross negligence, including 

the following:
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• the TDUs decided where to cut power and whether to rotate outages.

• the TDUs refused to follow any plan for load shedding and instead 

flipped switches without foresight or concern. 

• the TDUs had the power to flip switches back on after turning them 

off. 

• the TDUs favored some neighborhoods over others. 

• the TDUs made the power shortage worse by cutting power to 

customers producing power (e.g., Permian Basin) after being warned a 

decade earlier in the 2011 Federal Energy Regulatory Commission 

(“FERC”) report not to shut off industrial users that would cause loss 

of generation capacity.

• the TDUs falsely promised a “plan” of rolling blackouts of 15-45 

minutes in duration and in no event longer than 12 hours. 

• the TDUs made the power shortage worse because the amount of load 

connected to the Under Frequency Load Shed (“UFLS”) circuits by 

the TDUs substantially exceeded the ERCOT-required levels. 

• the TDUs’ customer communications misleadingly downplayed the 

catastrophe when they were warned that conditions would be far 

worse, with one TDU apologizing for what it had done wrong. 

They have alleged that the TDU’s conduct, when viewed objectively from the 

standpoint of the TDUs, at the time of its occurrence, involved an extreme degree 

of risk, considering the nature of the risk and the probability and magnitude of 

potential harm to others, of which the TDUs had actual, subjective awareness but 

nevertheless proceeded with conscious indifference to the rights, safety, and 
17

welfare of others. These are essential allegations to support a gross negligence 

claim.

Because the plaintiffs sufficiently pleaded and the TDUs failed to negate 

plaintiffs’ gross negligence or intentional misconduct claims, we conclude 

respondent did not abuse her discretion by denying the TDUs’ motions to dismiss 

these claims. 

6. Private nuisance claims

The Texas Supreme Court has stated that “the term ‘nuisance’ refers not to a 

cause of action . . . but to the legal injury . . . that gives rise to the cause of action.” 

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 604 (Tex. 2016). A 

defendant can be liable for causing a nuisance if the defendant intentionally causes 

it, negligently causes it, or—in limited circumstances—causes it by engaging in 

abnormally dangerous or ultra-hazardous activities. Id. at 604-09; see also Dealer 

Computer Servs., Inc. v. DCT Hollister Rd., LLC, 574 S.W.3d 610, 623-24 (Tex. 

App.—Houston [14th Dist.] 2019, no pet.) (explaining that “three different causes 

of action may lead to liability for a nuisance injury: (1) intentional conduct causing 

a nuisance, referred to by the court as ‘intentional nuisance’; (2) negligence; and 

(3) abnormally dangerous or ultra-hazardous activities causing a nuisance, referred 

to by the [Texas Supreme] court as ‘strict-liability nuisance.’”). 

Here, the plaintiffs allege all three of these categories of nuisance in their 

private nuisance claims against the TDUs. According to plaintiffs, the TDUs’ 

intentional and negligent acts and omissions created both a negligent nuisance and 

an intentional nuisance. Additionally, plaintiffs allege that the TDUs are strictly 
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liable because their acts and omissions that substantially interfered with plaintiffs’

use and enjoyment of their properties were abnormally dangerous. 

a. Negligent nuisance claim

A negligently caused nuisance claim is governed by ordinary negligence 

principles. Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 607. The elements the 

plaintiffs must prove are “the existence of a legal duty, a breach of that duty, and 

damages proximately causes by the breach.” Id. The only unique element, which 

derives from the nature of the legal injury on which the plaintiff bases the claim, is 

the burden to prove that the defendant's negligent conduct caused a nuisance, 

which in turn resulted in the plaintiff’s damages. See id. 

As set forth, supra, we have determined that the plaintiffs’ ordinary 

negligence claims are foreclosed by the tariffs; thus, under Texas jurisprudence, 

plaintiffs’ claims for negligent nuisance have no basis in law. We conclude that 

the respondent abused her discretion in denying the TDUs’ motions to dismiss the 

plaintiffs’ claims for negligent nuisance.

b. Intentional and strict-liability nuisance claims

Unlike a negligent nuisance claim, intentional nuisance and strict-liability 

nuisance claims do not require proof of the legal duty owed. Id. at 605. 

(i). Intentional nuisance

“[T]o prove an intentional nuisance, the evidence must establish that the 

defendant intentionally caused the interference that constitutes the nuisance, not 

just that the defendant intentionally engaged in the conduct that caused the 
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interference.” Id. (citing Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 

1985) (explaining that intent exists if the actor desires to cause the “consequences” 

of his act, or the actor knows that the “consequences” are substantially certain to 

result). In sum, “the requirement for an intentional nuisance is that the effects of 

the substantial interference be unreasonable (thus, that there be a nuisance), not 

that the defendant’s conduct be unreasonable.” Id. at 606. 

Because plaintiffs pled facts that could rise to the level of intentionally 

causing the interference that constitutes the nuisance, we conclude that the 

respondent did not abuse her discretion in denying the TDUs’ motions to dismiss 

the plaintiffs’ claims of intentional nuisance.

(ii). Strict-liability nuisance

“[T]o the extent that a strict-liability-nuisance claim exists in Texas based on 

a nuisance created by ‘abnormal and out of place conduct,’ it arises only out of 

conduct that constitutes an “abnormally dangerous activity” or involves an 

abnormally ‘dangerous substance’ that creates a ‘high degree of risk’ of serious 

injury.” Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 609. It is not just an 

activity that is “abnormal and out of place in its surroundings.” Id. at 617

(citations omitted).

Here, plaintiffs’ pleadings are insufficient to raise a question of fact as to 

whether the alleged interference resulted from abnormally dangerous or ultrahazardous conduct by the TDUs. As acknowledged by the Restatement, “the 

transmission of electricity . . . [is not] deemed to be an abnormally dangerous 

activity.” RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL 
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& EMOTIONAL HARM § 20 cmt. h (Am. L. Inst. 2010). Plaintiffs cite no Texas 

court case that has held that the transmission or distribution of electricity is an 

abnormally dangerous activity giving rise to a nuisance injury for which a 

defendant is strictly liable. As such, the trial court abused its discretion in denying 

the TDUs’ motions to dismiss plaintiffs’ strict-liability nuisance claims. 

B. The TDUs other arguments

The TDU has made other arguments about causation and damages that we 

do not believe should be reviewed via a Rule 91a motion.

IV. TDUs have no adequate remedy by appeal

Having determined that respondent abused her discretion by denying 

dismissal of plaintiffs’ claims for negligence and nuisance, we must now determine

whether the TDUs have demonstrated they have no adequate remedy by appeal. 

See Walker v. Packer, 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding). 

“‘The adequacy of an appellate remedy must be determined by balancing the 

benefits of mandamus review against the detriments.’” Essex Ins. Co., 450 S.W.3d 

at 528 (quoting In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008)). 

Balancing these interests, the Texas Supreme Court has held that “mandamus relief 

is appropriate to spare private parties and the public the time and money utterly 

wasted enduring eventual reversal of improperly conducted proceedings.” Essex 

Ins. Co., 450 S.W.3d at 528 (internal citations omitted).

“When ‘the very act of proceeding to trial—regardless of the outcome—

would defeat the substantive right involved’ or would cause a knowing waste of 
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resources, mandamus relief may be necessary.” In re Illinois Nat’l Ins. Co., No. 

22-0872, ___S.W.3d ___, 2024 WL 736751, at *10 (Tex. Feb. 23, 2024) (orig. 

proceeding) (quoting In re McAllen Med. Ctr., 275 S.W.3d 458, 465–66 (Tex. 

2008) (orig. proceeding) (“[s]itting on our hands while unnecessary costs mount up 

contributes to public complaints that the civil justice system is expensive and 

outmoded.”); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 137 (Tex. 2004) 

(orig. proceeding) (stating that in some circumstances “the irreversible waste of 

judicial and public resources that would be required” absent mandamus relief 

justifies granting such relief (quoting In re Masonite Corp., 997 S.W.2d 194, 198 

(Tex. 1999) (orig. proceeding))). 

We conclude that the TDUs have demonstrated that this case presents 

extraordinary circumstances warranting review of the threshold legal questions and 

mandamus relief, saving the courts and the parties the expense of protracted

discovery and litigation in an expansive MDL. See Essex Ins. Co., 450 S.W.3d at 

528. 

V. Conclusion

We conditionally grant, in part, the TDUs’ petition for writ of mandamus. 

We vacate the respondent’s January 26, 2023 orders in the four bellwether cases to 

the extent respondent denied the TDUs’ Rule 91a motions to dismiss plaintiffs’ 

claims for negligence and negligent nuisance. We direct the respondent to grant

the TDUs’ Rule 91a motions to dismiss the plaintiffs’ claims for negligence,

negligent nuisance, and strict-liability nuisance in the four bellwether petitions.

Our writ will issue only if the respondent fails to comply with this opinion.
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/s/ Tracy Christopher

Chief Justice 

Panel consists of Chief Justice Christopher and Justices Jewell and Wilson.