HomeMy WebLinkAboutRES 11-125 RESOLUTION NO. 11-125
WHEREAS, came on to be heard the matter of Munro Uniform Services, LLC vs.
CenterPoint Energy, Inc. and CenterPoint Energy Resources Corp.; and,
WHEREAS, the parties were represented by their duly appointed attorneys of
record ; and,
WHEREAS, after having considered the documents on file with the City Clerk,
arguments of Council and the applicable law, the City Council is of the opinion that
jurisdiction in this matter should not be asserted.
NOW, THEREFORE, BE IT RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT:
THAT the statements and findings set out in the preamble to this resolution are hereby,
in all things, approved and adopted; and,
BE IT FURTHER RESOLVED BY THE
CITY COUNCIL OF THE CITY OF BEAUMONT-
THAT the City Council, recognizing its exclusive original jurisdiction over the rates,
operations and services of CenterPoint Energy, Inc. and not intending to surrender said
jurisdiction to the Railroad Commission by this action,declines to accept jurisdiction of this
matter in that it is not a rate dispute.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 5th day of April,
2011.
'Iyayor Becky Ames -
ELI7..ABt?'rul AMES.JONES,CHAIRMAN dS�� Up
LINDII.C. (OWI.i?R,JR.(iF'NF.IIAI.C01I.YSh,'1.
DAVID POR'17 R,CoMM1.SSIUNl:R COLIN K. LINEBERRY, DIRIWPYIR
Y
HBAR1NGS SliC'!'ION
RAILROAD COMMISSION OF TEXAS
OFFICE OF GENERAL COUNSEL
June 24, 2011
TO: All Parties of Record
Re: Gas Utilities Docket No. 10477,
CenterPoint's Petition for Review.
EXAMINERS' LETTER NO. 1
Determination Denying Jurisdiction
On May 5, 2011, CenterPoint Energy Resources Corp. d/b/a CenterPoint Energy Texas
Gas Operations and CenterPoint Energy Entex (CenterPoint) filed the above referenced Petition
for Review (Petition). In its Petition, CenterPoint alleged that the Railroad Commission
(Commission) represented the proper forum for a dispute involving Munro's Uniform Services,
L.L.0(Munro's). Specifically, CenterPoint alleges that the Commission has jurisdiction over the
subject dispute because it concerns gas utility rates and services that CenterPoint provided to
Munro's under the Gas Utility Regulatory Act (GURA).' The Commission has the authority
under GURA to ensure compliance with the act's provisions.2 Furthermore, GURA grants the
Commission exclusive appellate jurisdiction to review an order of a municipality exercising
exclusive original jurisdiction over a proceeding regarding rates or services within its area.3
CenterPoint provided gas utility sales service to Munro's prior to August 1, 2009.
Disappointed with CenterPoint's cost of service, Munro's negotiated a contract with a third-party
transporter on August 1, 2009. The crux of the dispute involves whether CenterPoint misled,
misinformed, or concealed information from Munro's regarding a lower Transportation Rate.
Munro's filed a complaint in Jefferson County District Court on May 26, 2010 alleging fraud,
negligent misrepresentation, and fraud by nondisclosure. After non-suiting its district court
claim, Munro's filed a complaint with the Beaumont City Council (Beaumont) alleging the same
causes of action. Beaumont issued an order and an amendment to that order(collectively, Order)
that acknowledged its exclusive original jurisdiction but denied jurisdiction in the subject dispute
because it failed to involve rate issues. Following this determination, Munro's re-filed its
original complaint in Jefferson County District Court on April 12, 2001. CenterPoint filed a
Petition for Review with the Commission on May 5,2011.
Gas Utility Regulatory Act,TEX. UTIL.CODEANN.§§ 101.001-105.051, (West 2011).
'Id. § 104.001(a).
'Id.§ 102.001(b).
1701 NORTII CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN.TEXAS 7871 1-2967 * PHONE:512/463.6924*FAX:5121463-6989
MD 800/735-2989 OR TDY 512/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*IITTPJ/W WW.RRC.STATE.TX.US
I
GUD No. 10077 Examiners' Letter No. 1 Page 2
After considering the parties' pleadings and the relevant authorities, the Examiners have
determined that no hearing will be noticed at this time and the Examiners will not convene a
hearing unless otherwise directed by the Commission. Furthermore, as this proceeding may
represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal`
Pursuant to 16'Tex. Adinin. Code§1.126.
First,to support this conclusion, the Examiners note that the primary jurisdiction does not
apply. The Examiners acknowledge the fact that administrative agencies are well suited to
analyze and resolve issueM1s relating to particular fields over which they exercise jurisdiction
because of their expertise. However, the primary jurisdiction doctrine does not apply when the
questions presented involve questions of law that are more appropriate for a district courts Even
if one finds that CenterPoint may have exhibits discriminatory behavior, the facts of the subject
dispute are not so unique as to require Commission review.6
In its petition for review, CenterPoint cast the claims as rate issues. This argument is
misplaced. CenterPoint alleges that Munro's claims relate to the gas utility rates and services it
paid for and received from CenterPoint. Yet the subject dispute relates to the fact that
CenterPoint may have misinformed Munro's about the possibility of lowering its rate and cost of
service. Put simply, the dispute does not involve whether the rate ohm, was unjust or
unreasonable;it involves whether Munro may have been entitled to a lower rate.
CenterPoint also argues that the Commission has exclusive appellate jurisdiction because
Beaumont declined initial jurisdiction. The Examiners agree that the Commission has appellate
jurisdiction in a case where a utility appeals the action of a municipal regulatory authority. The
district court, however, has concurrent jurisdiction over the issues raised and the Commission
may decline to consider the appellate proceeding at this time.
Pursuant to 16 Tex. Admin. Code §1.30,any party filing an interim appeal is directed to
file the appeal no later than ten days of the date of this ruling. Any response must be filed no
later than ten days after the date the appeal is filed. The Examiners respectfully request that the
parties file any appeal or response no later than 10:00 a.m, on the date the al or
due. In the event that an a appeal response is
appeal is filed, the Hearings Examiner will forward to each
Commissioner a copy of the appeal and upon request of a Commissioner schedule the appeal for .
'See,e.g.,Gregg v.Delhi-Taylor oil Corp.(Deihl-raylor),162 Tex.26,29-30,344 R:W.2d:4.11,413(1961);Rio Grande Valley
Gas Co., v. City of Edinburg, 59 S.W.3d 149, 220 (Tex. App.—Corpus Christi 2000);Shell Pipeline Corp. v. Coastal state
Trading, Inc.,788 S.W.2d 837,842(Tex. App.—Houston fist Dist.] 1990, writ denied)(quoting United States v. Wester Pac.
R.R.,352 U.S.59,64(1956)).
s See,e.g.,Amarillo Oil Co.V. Energy-Agri Prod., Inc., 794 S.W1d 20i 26(Tex. 1990)("We have addressed the issue of the
Railorad Commission's primary jurisdiction on several occasions,and found it not to be so broad-sweeping as to oust the courts
of jurisdiction just because the Commission might have jurisdiction to determine some facts related to the controversy.");Delhi.
Taylor,344 S.W.2d 411,4 15(holding that trespass claim was inherently judicial in nature);Diskamp Y.General Crude Oil Co.,
452 S.W.2d 515,516(Tex.Civ.App.—San Antonio 137'0,writ ref'd)(Commission lacked authority to interpret contract),
6 Roberts Express,Inc.,v. Expert Transp.,Inc.,842 S.W.2d 766,771 (Tex.App.—Dallas 1992,no writ)C`[i]f the issue does riot
involve the interpretation of technical words or phrases not commonly understood or there is no need to determine the impact of
underlying cost allocation matters,then the matter is a pure question of law for fad o district court's]determination.").
GUD No. 10077 Examiners' Letter No. 1 Page 3
consideration by the Commission at an open meeting. Any timely appeal filed will be deemed
denied by operation of law on the 46`h day after the date the appeal was filed.
Contact for Additional Information -- In accordance with Tex. Gov't Code Ann. §
2001.061 and 16 Tex. Admin. Code § 1.6, ex parle communications with the Hearings
Examiners and Commissioners is prohibited. Any persons or entities desiring additional
information may contact the Commission by writing to Colin Lineberry at the Railroad
Commission of Texas, 1701 North Congress Avenue, P. O. Box 12967, Capitol Station, Austin,
Texas 78711-2967, or by calling Mr. Lineberry at (512) 463-7033. Any persons or entities
having clerical questions, such as questions regarding the number of copies of filings, the service
list or reviewing the record, may contact the secretary of the Gas Services Section of the Office
of General Counsel,Loretta Howard,at(512)463-7033.
Sincerely,
Gene ontes
Hearings Examiner
Office of General Counsel
. I
�I
SERVICE LIST
Gas Utilities Docket No. 10077
Appeal of CenterPoint Energy Resources Corp.DBA
CenterPoint Energy Texas Gas Oper ations and CenterPoint Energy Entex
from the Action of the City of Beaumont Denying the Request of
Munro's Uniform Services, LLC
Examiner: Gene Montes
Co Examiner: Mark Brock
A TES REPRESENTATIVE
CenterPoint Energy, Inc. J. D. Munn
Robert W. Claude Kate Norman
Associate General Counsel Parsley Coffin Renner LLP
P.O. Box 2628 98 San Jacinto Blvd., Suite 1450
Houston, Texas 77252-2628 P.O. Box 1336
713-207-5603 Austin,Texas 78711
713-207-0101 (fax) 512-879-0900
512-879-0912 (fax)
shellev mo 11 .com
dane.mckau An ucrllp cam
�,.np coffin roll om
laurle.robinsonnnmllp com
Tyrone E. Cooper Ernest W. Boyd
City Attorney M. C. Carrington
City of Beaumont Jeremy R. Stone
P.O. Box 3827 Christopher Grimm
Beaumont,TX 77704-3827 Mehaffy Weber, P.C.
409-880-3715 500 Dallas, Suite 1200
409-880-3121 (fax) Houston,Texas 77002
713-655-1200
713-655-0222 (fax)
Chris G 'mm mehaffvweber com
June 24,2011
ELI7..ABt?'rul AMES.JONES,CHAIRMAN dS�� Up
LINDII.C. (OWI.i?R,JR.(iF'NF.IIAI.C01I.YSh,'1.
DAVID POR'17 R,CoMM1.SSIUNl:R COLIN K. LINEBERRY, DIRIWPYIR
Y
HBAR1NGS SliC'!'ION
RAILROAD COMMISSION OF TEXAS
OFFICE OF GENERAL COUNSEL
June 24, 2011
TO: All Parties of Record
Re: Gas Utilities Docket No. 10477,
CenterPoint's Petition for Review.
EXAMINERS' LETTER NO. 1
Determination Denying Jurisdiction
On May 5, 2011, CenterPoint Energy Resources Corp. d/b/a CenterPoint Energy Texas
Gas Operations and CenterPoint Energy Entex (CenterPoint) filed the above referenced Petition
for Review (Petition). In its Petition, CenterPoint alleged that the Railroad Commission
(Commission) represented the proper forum for a dispute involving Munro's Uniform Services,
L.L.0(Munro's). Specifically, CenterPoint alleges that the Commission has jurisdiction over the
subject dispute because it concerns gas utility rates and services that CenterPoint provided to
Munro's under the Gas Utility Regulatory Act (GURA).' The Commission has the authority
under GURA to ensure compliance with the act's provisions.2 Furthermore, GURA grants the
Commission exclusive appellate jurisdiction to review an order of a municipality exercising
exclusive original jurisdiction over a proceeding regarding rates or services within its area.3
CenterPoint provided gas utility sales service to Munro's prior to August 1, 2009.
Disappointed with CenterPoint's cost of service, Munro's negotiated a contract with a third-party
transporter on August 1, 2009. The crux of the dispute involves whether CenterPoint misled,
misinformed, or concealed information from Munro's regarding a lower Transportation Rate.
Munro's filed a complaint in Jefferson County District Court on May 26, 2010 alleging fraud,
negligent misrepresentation, and fraud by nondisclosure. After non-suiting its district court
claim, Munro's filed a complaint with the Beaumont City Council (Beaumont) alleging the same
causes of action. Beaumont issued an order and an amendment to that order(collectively, Order)
that acknowledged its exclusive original jurisdiction but denied jurisdiction in the subject dispute
because it failed to involve rate issues. Following this determination, Munro's re-filed its
original complaint in Jefferson County District Court on April 12, 2001. CenterPoint filed a
Petition for Review with the Commission on May 5,2011.
Gas Utility Regulatory Act,TEX. UTIL.CODEANN.§§ 101.001-105.051, (West 2011).
'Id. § 104.001(a).
'Id.§ 102.001(b).
1701 NORTII CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN.TEXAS 7871 1-2967 * PHONE:512/463.6924*FAX:5121463-6989
MD 800/735-2989 OR TDY 512/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*IITTPJ/W WW.RRC.STATE.TX.US
I
GUD No. 10077 Examiners' Letter No. 1 Page 2
After considering the parties' pleadings and the relevant authorities, the Examiners have
determined that no hearing will be noticed at this time and the Examiners will not convene a
hearing unless otherwise directed by the Commission. Furthermore, as this proceeding may
represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal`
Pursuant to 16'Tex. Adinin. Code§1.126.
First,to support this conclusion, the Examiners note that the primary jurisdiction does not
apply. The Examiners acknowledge the fact that administrative agencies are well suited to
analyze and resolve issueM1s relating to particular fields over which they exercise jurisdiction
because of their expertise. However, the primary jurisdiction doctrine does not apply when the
questions presented involve questions of law that are more appropriate for a district courts Even
if one finds that CenterPoint may have exhibits discriminatory behavior, the facts of the subject
dispute are not so unique as to require Commission review.6
In its petition for review, CenterPoint cast the claims as rate issues. This argument is
misplaced. CenterPoint alleges that Munro's claims relate to the gas utility rates and services it
paid for and received from CenterPoint. Yet the subject dispute relates to the fact that
CenterPoint may have misinformed Munro's about the possibility of lowering its rate and cost of
service. Put simply, the dispute does not involve whether the rate ohm, was unjust or
unreasonable;it involves whether Munro may have been entitled to a lower rate.
CenterPoint also argues that the Commission has exclusive appellate jurisdiction because
Beaumont declined initial jurisdiction. The Examiners agree that the Commission has appellate
jurisdiction in a case where a utility appeals the action of a municipal regulatory authority. The
district court, however, has concurrent jurisdiction over the issues raised and the Commission
may decline to consider the appellate proceeding at this time.
Pursuant to 16 Tex. Admin. Code §1.30,any party filing an interim appeal is directed to
file the appeal no later than ten days of the date of this ruling. Any response must be filed no
later than ten days after the date the appeal is filed. The Examiners respectfully request that the
parties file any appeal or response no later than 10:00 a.m, on the date the al or
due. In the event that an a appeal response is
appeal is filed, the Hearings Examiner will forward to each
Commissioner a copy of the appeal and upon request of a Commissioner schedule the appeal for .
'See,e.g.,Gregg v.Delhi-Taylor oil Corp.(Deihl-raylor),162 Tex.26,29-30,344 R:W.2d:4.11,413(1961);Rio Grande Valley
Gas Co., v. City of Edinburg, 59 S.W.3d 149, 220 (Tex. App.—Corpus Christi 2000);Shell Pipeline Corp. v. Coastal state
Trading, Inc.,788 S.W.2d 837,842(Tex. App.—Houston fist Dist.] 1990, writ denied)(quoting United States v. Wester Pac.
R.R.,352 U.S.59,64(1956)).
s See,e.g.,Amarillo Oil Co.V. Energy-Agri Prod., Inc., 794 S.W1d 20i 26(Tex. 1990)("We have addressed the issue of the
Railorad Commission's primary jurisdiction on several occasions,and found it not to be so broad-sweeping as to oust the courts
of jurisdiction just because the Commission might have jurisdiction to determine some facts related to the controversy.");Delhi.
Taylor,344 S.W.2d 411,4 15(holding that trespass claim was inherently judicial in nature);Diskamp Y.General Crude Oil Co.,
452 S.W.2d 515,516(Tex.Civ.App.—San Antonio 137'0,writ ref'd)(Commission lacked authority to interpret contract),
6 Roberts Express,Inc.,v. Expert Transp.,Inc.,842 S.W.2d 766,771 (Tex.App.—Dallas 1992,no writ)C`[i]f the issue does riot
involve the interpretation of technical words or phrases not commonly understood or there is no need to determine the impact of
underlying cost allocation matters,then the matter is a pure question of law for fad o district court's]determination.").
GUD No. 10077 Examiners' Letter No. 1 Page 3
consideration by the Commission at an open meeting. Any timely appeal filed will be deemed
denied by operation of law on the 46`h day after the date the appeal was filed.
Contact for Additional Information -- In accordance with Tex. Gov't Code Ann. §
2001.061 and 16 Tex. Admin. Code § 1.6, ex parle communications with the Hearings
Examiners and Commissioners is prohibited. Any persons or entities desiring additional
information may contact the Commission by writing to Colin Lineberry at the Railroad
Commission of Texas, 1701 North Congress Avenue, P. O. Box 12967, Capitol Station, Austin,
Texas 78711-2967, or by calling Mr. Lineberry at (512) 463-7033. Any persons or entities
having clerical questions, such as questions regarding the number of copies of filings, the service
list or reviewing the record, may contact the secretary of the Gas Services Section of the Office
of General Counsel,Loretta Howard,at(512)463-7033.
Sincerely,
Gene ontes
Hearings Examiner
Office of General Counsel
. I
�I
SERVICE LIST
Gas Utilities Docket No. 10077
Appeal of CenterPoint Energy Resources Corp.DBA
CenterPoint Energy Texas Gas Oper ations and CenterPoint Energy Entex
from the Action of the City of Beaumont Denying the Request of
Munro's Uniform Services, LLC
Examiner: Gene Montes
Co Examiner: Mark Brock
A TES REPRESENTATIVE
CenterPoint Energy, Inc. J. D. Munn
Robert W. Claude Kate Norman
Associate General Counsel Parsley Coffin Renner LLP
P.O. Box 2628 98 San Jacinto Blvd., Suite 1450
Houston, Texas 77252-2628 P.O. Box 1336
713-207-5603 Austin,Texas 78711
713-207-0101 (fax) 512-879-0900
512-879-0912 (fax)
shellev mo 11 .com
dane.mckau An ucrllp cam
�,.np coffin roll om
laurle.robinsonnnmllp com
Tyrone E. Cooper Ernest W. Boyd
City Attorney M. C. Carrington
City of Beaumont Jeremy R. Stone
P.O. Box 3827 Christopher Grimm
Beaumont,TX 77704-3827 Mehaffy Weber, P.C.
409-880-3715 500 Dallas, Suite 1200
409-880-3121 (fax) Houston,Texas 77002
713-655-1200
713-655-0222 (fax)
Chris G 'mm mehaffvweber com
June 24,2011