HomeMy WebLinkAboutRES 11-139 RESOLUTION NO. 11-139
WHEREAS, on April 5, 2011, the City Council passed Resolution No. 11-125
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 its action, declined to accept jurisdiction of the matter in that it is not a rate
dispute; and,
WHEREAS, CenterPoint Energy Resources Corp. was a party to the City Council
Hearing held April 5, 2011 in the matter of Munro Uniform Services, LLC.; and,
WHEREAS, it is requested that Resolution No. 11-125 be amended to reflect that
CenterPoint Energy Resources Corp. was a party to the Hearing before the City Council.
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,
That Resolution No. 11-125 is hereby amended to reflect that CenterPoint Energy
Resources Corp.was a party to the Hearing in the matter of Munro Uniform Services, LLC.
held April 5, 2011.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 3rd day of May,
2011.
s d`
- ayor Becky Ames -
I
i
ELIZ.ABi..ni AMES.JONES,CHAIRMAN U
�� F LINDA,C. FowLIR,JR.,Ch'NFlIAI.C011,YS1'1,
DAVID POR'f1 R,COMMISS10Nt:R y COLIN K. L.INEBIiRRY, DIREC719R
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He•,4RINGSSrrnoN
RAILROAD COMMISSION OF TEXAS
OFFICE OF GENERAL COUNSEL
June 24, 2011
TO: All Parties of Record
Re: Gas Utilities Docket No. 10077,
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).1 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.
1 Gas Utility Regulatory Act,TEX. UTIL.CODE ANN,§§ 101.001-105.051, (West 2011).
-'Id. § 104.001(a).
'Id § 102.001(b).
1701 NORTH CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN,TEXAS 78711-2%7 * PHONE:5121463-6924*FAX:5121463-6989
TDD 8001735-2989OR TDY$12/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*I•ITT.P://WWW.RRC.STATE.TX.US
GUD No. 10077 Examiners' Letter No. I 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 I proceeding may
represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal,
Pursuant to 16 Tex. Admin. 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 issues 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 f o r a district court. Even
if one finds that CenterPoint may have exhibited discriminatory behavior, the facts of the subject
dispute are not so unique as to require Commission review,6
In its petition for review, Centerpoint cut 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 charged was unjust or
unmasonable;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 riled no
later than ten days after the date the appeal is filed. The Examiners respectfully request t t
Re any appeal or response no later than 10:00 a m. on the date the appeal or rise is
parties f res that he
due. a pea response
In the event that an 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
A See,e.g,,Oren v.Delhi-Taylor Oil Corp.(Deihi-Tayior),162 Tex.26,29-30,344 S.W.2d 411,413(1961).Rio Grande Valley
Gas Co., v. City or Edinbur& 59 S-W.3d 1", 220 (Tex. App.-Corpus Christi 2000); Shell Pipeline Corp. v. Coastal state
Trading, Inc.. 789 S.W.2d 837, 942(Tex, App.-Houston [1st Dist.] 1990, writ denied)(quoting United States Y. Westem Pac.
R.R.,352 U.S.59,64(1956)).
s See, e.g.,Amarillo Oil Co. v, Energy-Agri Prod., Inc., 794 S.W.2d 20,26(T We have add t i 0 t
Railorad Commission's primary jurisdiction on several occasions,and found it ex 990v (" ressod he issue f he
of jurisdiction just because the Commission might have jurisdiction to determine to be so broad-sweeping its to oust the courts
e some facts related to the controversy.,,);Delhi-
TaYlar,344 S.W.2d 411,415(holding that trespass claim was Inherently judicial i M I p e C Oil Co
n nature D*sm v General Crud
452 S.W.2d 515,516(Tex,Civ.App.-San Antonio 1070,writ nerd)(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)("[Ilf the issue does riot
involve the interpretation of technical words or phrases not commonly understood or court' need to determine the impact of
underlying cost allocation matters,then the matter is as pure question of law for[a district courts]determination.").
GUD No. 10077 Examiners, Letter No. i rage 3
consideration by the Commission at an open meeting. Any timely appeal filed will be deemed
denied by operation of law on the 46th 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 ion tes
Hearings Examiner
Office of General Counsel
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
ART ES 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
7I3-207-5603 Austin,Texas 78711
713-207-0101 (fax) 512-879-0900
512-879-0912 (fax)
shellev.mo• rl .cony
dane.m� lLcom
ann co In(a�nrclI com
urie in nrcllp 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 Grim m4mehaffyweber com
June 24,2011
ELIZ.ABi..ni AMES.JONES,CHAIRMAN U
�� F LINDA,C. FowLIR,JR.,Ch'NFlIAI.C011,YS1'1,
DAVID POR'f1 R,COMMISS10Nt:R y COLIN K. L.INEBIiRRY, DIREC719R
r-- wYY
He•,4RINGSSrrnoN
RAILROAD COMMISSION OF TEXAS
OFFICE OF GENERAL COUNSEL
June 24, 2011
TO: All Parties of Record
Re: Gas Utilities Docket No. 10077,
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).1 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.
1 Gas Utility Regulatory Act,TEX. UTIL.CODE ANN,§§ 101.001-105.051, (West 2011).
-'Id. § 104.001(a).
'Id § 102.001(b).
1701 NORTH CONGRESS AVENUE * POST OFFICE BOX 12967 * AUSTIN,TEXAS 78711-2%7 * PHONE:5121463-6924*FAX:5121463-6989
TDD 8001735-2989OR TDY$12/463-7284*AN EQUAL OPPORTUNITY EMPLOYER*I•ITT.P://WWW.RRC.STATE.TX.US
GUD No. 10077 Examiners' Letter No. I 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 I proceeding may
represent an unnecessary duplication of proceeding, the Examiners intend to seek dismissal,
Pursuant to 16 Tex. Admin. 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 issues 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 f o r a district court. Even
if one finds that CenterPoint may have exhibited discriminatory behavior, the facts of the subject
dispute are not so unique as to require Commission review,6
In its petition for review, Centerpoint cut 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 charged was unjust or
unmasonable;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 riled no
later than ten days after the date the appeal is filed. The Examiners respectfully request t t
Re any appeal or response no later than 10:00 a m. on the date the appeal or rise is
parties f res that he
due. a pea response
In the event that an 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
A See,e.g,,Oren v.Delhi-Taylor Oil Corp.(Deihi-Tayior),162 Tex.26,29-30,344 S.W.2d 411,413(1961).Rio Grande Valley
Gas Co., v. City or Edinbur& 59 S-W.3d 1", 220 (Tex. App.-Corpus Christi 2000); Shell Pipeline Corp. v. Coastal state
Trading, Inc.. 789 S.W.2d 837, 942(Tex, App.-Houston [1st Dist.] 1990, writ denied)(quoting United States Y. Westem Pac.
R.R.,352 U.S.59,64(1956)).
s See, e.g.,Amarillo Oil Co. v, Energy-Agri Prod., Inc., 794 S.W.2d 20,26(T We have add t i 0 t
Railorad Commission's primary jurisdiction on several occasions,and found it ex 990v (" ressod he issue f he
of jurisdiction just because the Commission might have jurisdiction to determine to be so broad-sweeping its to oust the courts
e some facts related to the controversy.,,);Delhi-
TaYlar,344 S.W.2d 411,415(holding that trespass claim was Inherently judicial i M I p e C Oil Co
n nature D*sm v General Crud
452 S.W.2d 515,516(Tex,Civ.App.-San Antonio 1070,writ nerd)(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)("[Ilf the issue does riot
involve the interpretation of technical words or phrases not commonly understood or court' need to determine the impact of
underlying cost allocation matters,then the matter is as pure question of law for[a district courts]determination.").
GUD No. 10077 Examiners, Letter No. i rage 3
consideration by the Commission at an open meeting. Any timely appeal filed will be deemed
denied by operation of law on the 46th 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 ion tes
Hearings Examiner
Office of General Counsel
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
ART ES 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
7I3-207-5603 Austin,Texas 78711
713-207-0101 (fax) 512-879-0900
512-879-0912 (fax)
shellev.mo• rl .cony
dane.m� lLcom
ann co In(a�nrclI com
urie in nrcllp 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 Grim m4mehaffyweber com
June 24,2011