in Re Centerpoint Energy Houston Electric, Llc.

IN THE SUPREME COURT OF TEXAS
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No. 19-0777
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IN RE CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, RELATOR

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ON PETITION FOR WRIT OF MANDAMUS
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Argued October 8, 2020

JUSTICE BUSBY announced the Court’s disposition and delivered an opinion, in which
JUSTICE LEHRMANN, JUSTICE DEVINE, and JUSTICE BLAND joined.

JUSTICE BOYD filed a concurring opinion.

CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE BLACKLOCK joined.

JUSTICE HUDDLE did not participate in the decision.

Three cases we decide this term address whether the exclusive jurisdiction of the Texas

Public Utility Commission (PUC) over an electric utility’s rates, operations, and services extends

to certain issues raised in common-law tort suits against utilities. 1 In this case, a good Samaritan

was electrocuted while attempting to help the victims of a wreck that downed a CenterPoint

power line, and his estate and family sued CenterPoint for negligence. CenterPoint’s plea to the

jurisdiction presents the following question: does the PUC have exclusive jurisdiction to

adjudicate issues of duty and breach that underlie these plaintiffs’ claims?

1
See also In re Oncor Elec. Delivery Co., __ S.W.3d __, __ (Tex. June 25, 2021) (No. 19-0662); In re
Tex.-N.M. Power Co., __ S.W.3d __, __ (Tex. June 25, 2021) (No. 19-0656).
We hold that the PUC does not have exclusive jurisdiction because the plaintiffs and their

decedent are not “affected persons” statutorily authorized to bring a complaint in the PUC. In

addition, whether a regulatory scheme has displaced the common-law duty of reasonable care is

a matter for courts—not agencies—to decide, and CenterPoint correctly argued in the trial court

that the common-law standard applies. It is for a trier of fact to determine whether the utility

breached that standard, as the PUC itself has long acknowledged. The trial court therefore did

not abuse its discretion by denying CenterPoint’s plea to the jurisdiction, and we deny its petition

for writ of mandamus.

BACKGROUND

Two vehicles were involved in a collision in southern Harris County after the driver of

one vehicle ran a red light. The vehicle that ran the light hit a wooden utility pole, causing the

pole and the power line attached to it—owned and maintained by CenterPoint Energy Houston

Electric, LLC—to fall to the ground. Glenn Wood Higgins was driving near the wreck and

stopped to render aid. While walking toward the vehicle, plaintiffs allege that Higgins came into

contact with electricity radiating through the ground from the downed power line. The contact

knocked his body onto the line, shocking him and catching his clothes on fire. Higgins suffered

severe burns and passed away three weeks later.

Higgins’s family members 2 and estate (collectively, plaintiffs) brought wrongful-death

and survival claims against CenterPoint in Harris County Probate Court. Plaintiffs asserted

2
The individual plaintiffs are Karen Y. Higgins, Megan Higgins, Tommy Higgins, and Maxwell Higgins.

2
causes of action for common-law negligence and gross negligence. 3 They alleged that

CenterPoint has a duty to design, construct, operate, and maintain its electricity distribution

system to de-energize portions of the distribution lines promptly when they experience faults.

Plaintiffs asserted that CenterPoint’s line protection scheme was not prudently designed, and that

CenterPoint chose and installed an inappropriately sized fuse. Fuses are placed on power lines

to stop the flow of electricity and de-energize the line in the event of a fault. Plaintiffs contended

that an appropriate fuse would have de-energized the downed power line in five seconds or

less—before Higgins had even exited his truck.

CenterPoint filed a plea to the jurisdiction, contending that the PUC’s exclusive

jurisdiction over an electric utility’s rates, operations, and services extends to adjudicating

whether CenterPoint’s line-protection measures complied with the law and industry standards.

In CenterPoint’s view, plaintiffs’ complaints regarding fuse size implicate fundamental policy

questions about how electric utilities must design, install, operate, and maintain their electric

distribution systems. In response, plaintiffs asserted that (1) the Texas Estates Code gave the

probate court exclusive jurisdiction to adjudicate the case, (2) the Utilities Code provisions

conferring jurisdiction on the PUC did not apply because plaintiffs were not customers of the

utility, and (3) the electrical operations and services at issue did not fall within the PUC’s

exclusive jurisdiction because it has not regulated line protection systems but rather leaves it up

to utilities to comply with the industry standard of care.

3
Plaintiffs also asserted a claim for negligence per se but later nonsuited that claim.

3
The probate court denied CenterPoint’s plea to the jurisdiction but stayed further

proceedings while CenterPoint sought mandamus relief. CenterPoint filed a petition for writ of

mandamus in the court of appeals, which denied relief without a substantive opinion.

ANALYSIS

CenterPoint asserts that the Public Utility Regulatory Act (PURA) gives the PUC

exclusive jurisdiction to adjudicate the standard of care applicable to plaintiffs’ tort suit and

whether it violated that standard. Under the Texas Constitution, district court jurisdiction

“consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and

remedies, except in cases where [such] jurisdiction may be conferred . . . on some other court,

tribunal, or administrative body.” TEX. CONST. art. V, § 8. As courts of general jurisdiction,

district courts are presumed to have subject-matter jurisdiction over a dispute absent a showing

to the contrary. In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004). The Legislature may

“bestow exclusive jurisdiction on administrative bodies,” Cameron Appraisal Dist. v. Rourk, 194

S.W.3d 501, 502 (Tex. 2006), but those bodies may exercise only powers conferred in clear and

express statutory language. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212,

220 (Tex. 2002). They do not share the jurisdictional presumption of district courts. In re

Entergy Corp., 142 S.W.3d at 322. 4

When the Legislature has granted an agency exclusive jurisdiction to adjudicate a

disputed issue, the agency has the sole authority to make an initial determination regarding that

4
As explained below, the trial court here was a probate court, but it had exclusive original jurisdiction over
this case by statute. Thus, the trial court was the appropriate authority to decide the plea to the jurisdiction
CenterPoint filed, just as the trial court decided a plea to the jurisdiction in In re Oncor Electric Delivery Co., __
S.W.3d at __, and a motion to dismiss for want of subject-matter jurisdiction in In re Texas-New Mexico Power Co.,
__ S.W.3d at __. No provision in PURA, or any other law, empowers the PUC to decide the threshold question
whether the presumption of trial court jurisdiction has been overcome.

4
issue, and a trial court lacks jurisdiction until a party has exhausted administrative remedies.

Oncor Elec. Delivery Co. v. Chaparral Energy, LLC, 546 S.W.3d 133, 138 (Tex. 2018).

Whether the PUC has exclusive jurisdiction over an issue is a question of statutory interpretation

that we review de novo. Id. If the PUC has exclusive jurisdiction, mandamus is an appropriate

remedy to correct a trial court’s denial of a plea to the jurisdiction. In re Sw. Bell Tel. Co., L.P.,

235 S.W.3d 619, 624 (Tex. 2007).

I. The probate court does not have exclusive jurisdiction to adjudicate plaintiffs’
wrongful-death and survival claims.

We first address plaintiffs’ contention that because the Estates Code grants the probate

court original and exclusive jurisdiction over this case, jurisdiction cannot be exercised by the

PUC. Plaintiffs point out that Article V Section 8 of the Texas Constitution does not mention

probate courts, which have original and exclusive jurisdiction under the Estates Code to

adjudicate wrongful-death and survival actions. CenterPoint counters that the statutory probate

court has concurrent—not exclusive—jurisdiction over plaintiffs’ case, and that probate courts—

like district courts—must defer to exclusive agency jurisdiction when applicable. We agree with

CenterPoint.

A statutory probate court has jurisdiction only as provided by statute. TEX. CONST. art.

V, § 1 (“The Legislature may establish such other courts as it may deem necessary and prescribe

the jurisdiction and organization thereof, and may conform the jurisdiction of the district and

other inferior courts thereto.”); Mobil Oil Corp. v. Shores, 128 S.W.3d 718, 723 (Tex. App.—

Fort Worth 2004, no pet.) (“A statutory probate court may exercise only that jurisdiction

accorded it by statute.”). Plaintiffs point to several Estates Code provisions that confer exclusive

original jurisdiction on probate courts. For example, “[a]ll probate proceedings must be filed and

5
heard in a court exercising original probate jurisdiction,” TEX. EST. CODE § 32.001(a), and “[i]n a

county in which there is a statutory probate court, the statutory probate court has exclusive

jurisdiction of all probate proceedings.” Id. § 32.005(a). Plaintiffs assert that once a statutory

probate court exercises original jurisdiction over a probate proceeding, that court maintains

exclusive jurisdiction over any related causes of action. 5

Yet the Estates Code also provides that a probate court has concurrent jurisdiction with

the district court over certain enumerated claims, which include those for survival or wrongful

death. Id. § 32.007 (“A statutory probate court has concurrent jurisdiction with the district court

in: (1) a personal injury, survival, or wrongful death action . . . .”). Nothing in the text of this

statute indicates that the Legislature intended to place statutory probate courts in a superior

jurisdictional position to district courts and prevent an administrative body from exercising its

own legislatively assigned exclusive jurisdiction over matters within its purview. See Colorado

County v. Staff, 510 S.W.3d 435, 444 (Tex. 2017) (explaining that our goal in construing a

statute is to give effect to the Legislature’s intent, which we seek in the statutory text).

Because plaintiffs brought claims for survival and wrongful death, the probate court has

concurrent but not exclusive jurisdiction over their claims. See King v. Deutsche Bank Nat’l Tr.

Co., 472 S.W.3d 848, 856 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding that section

32.005 “confers on statutory probate courts exclusive jurisdiction over causes of action related to

a probate proceeding unless Section 32.007 provides that the action is subject to concurrent

jurisdiction in a district court”). Probate court jurisdiction over plaintiffs’ claims is no greater

5
Plaintiffs cite multiple cases in support of this assertion, but none of these cases involved a cause of
action enumerated in Probate Code section 32.007.

6
than district court jurisdiction would be. See Shores, 128 S.W.3d at 724 (“A statutory probate

court’s jurisdiction over actions involving trusts is concurrent with that of a district court. Thus,

the district court’s jurisdiction over actions involving trusts determines the extent of a statutory

probate court’s jurisdiction over such actions.”). We therefore conclude that the Estates Code

does not prevent the PUC from exercising exclusive jurisdiction to adjudicate any issues within

its purview that arise in survival and wrongful-death actions brought in probate court.

II. The PUC does not have exclusive jurisdiction to adjudicate common-law questions
of reasonable care that underlie plaintiffs’ claims.

A. PURA defines the PUC’s exclusive jurisdiction to regulate and to adjudicate.

We now turn to CenterPoint’s arguments that plaintiffs’ negligence suit raises particular

issues that fall within the PUC’s exclusive jurisdiction to adjudicate: specifically, the appropriate

standard of care and whether CenterPoint complied with that standard. An agency has exclusive

jurisdiction when statutory language “clearly expresses” that this is the Legislature’s intent, or

“when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory

process to be the exclusive means of remedying the problem to which the regulation is

addressed.” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Sw. Bell Tel. Co., 235 S.W.3d

at 624–25). We held in Chaparral Energy that PURA includes both express exclusivity

language and a pervasive scheme. Id. at 139. Yet we also recognized that “[a]ll regulatory

schemes have limitations,” so we must determine whether issues underlying plaintiffs’ claims

“fall[] within [the PUC’s] jurisdictional scope.” Id. It is CenterPoint’s burden to establish that

the district court has been divested of subject-matter jurisdiction with respect to those underlying

issues. See In re Oncor Elec. Delivery Co., __ S.W.3d __, __ (Tex. June 25, 2021) (No.

19-0662).

7
In determining the PUC’s jurisdictional scope, it is useful to keep some general principles

of administrative law in mind. An administrative agency is “a legislative creation with only

those powers expressly conferred and necessary to accomplish its duties.” Chaparral Energy,

546 S.W.3d at 138 (quoting Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 216 (Tex. 2002)).

The Legislature may grant an agency power to make rules as well as power to adjudicate

disputes. As the Supreme Court of the United States has explained, agencies use rules to

regulate future conduct and adjudications to determine past and present rights and liabilities.

Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218–19 (1988). In other words, “adjudication

deals with what the law was; rulemaking deals with what the law will be.” Id. at 221 (Scalia, J.,

concurring). The governing statute may provide that an agency’s jurisdiction to make rules has

the same scope as its jurisdiction to adjudicate disputes, or those scopes may differ. 6 And an

agency may be able to address certain issues only (or initially) through rulemaking while others

require adjudication. 7

Here, PURA defines the PUC’s exclusive jurisdiction to regulate utilities as well as to

adjudicate disputes involving utilities. Regarding regulation, PURA “establish[es] a

6
For example, although the federal Equal Employment Opportunity Commission (EEOC) has jurisdiction
to issue procedural regulations to carry out Title VII’s anti-discrimination provisions, it cannot adjudicate claims
based on those provisions. Compare Edelman v. Lynchburg Coll., 535 U.S. 106, 109 (2002) (upholding EEOC
regulation permitting person who timely files charge of discrimination to verify that charge thereafter), with Fort
Bend County v. Davis, 139 S. Ct. 1843, 1846–47 (2019) (noting that the EEOC cannot adjudicate claims). In this
way, the EEOC differs from agencies like the National Labor Relations Board (NLRB), which can both make rules
and adjudicate claims. See 29 U.S.C. §§ 156, 160.
7
Compare N.L.R.B. v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 291–95 (1974) (holding
NLRB had discretion to choose between rulemaking and adjudication to determine whether certain employees were
managerial but recognizing that reliance on adjudication could be an abuse of discretion in other situations), with
F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 254 (2012) (holding Federal Communications Commission
violated television stations’ right to due process by retroactively applying new definition of obscenity announced
through adjudication).

8
comprehensive and adequate regulatory system for electric utilities to assure rates, operations,

and services that are just and reasonable,” TEX. UTIL. CODE § 31.001(a), and to that end gives the

PUC “exclusive original jurisdiction over the rates, operations, and services of an electric utility”

in certain geographic areas and exclusive appellate jurisdiction in others. Id. § 32.001(a), (b).

PURA separately defines the PUC’s powers of enforcement and adjudication, authorizing it to:

impose an administrative penalty for violating statutes, rules, or orders (id. § 15.023(a)); issue a

cease-and-desist order to a person engaging in certain hazardous or injurious conduct (id.

§ 15.104); and investigate and resolve a complaint by an “affected person” alleging “an act or

omission by a public utility in violation or claimed violation” of a law, order, ordinance, or rule

(id. § 15.051(a)).

CenterPoint argues that plaintiffs’ claims turn on the allegation that CenterPoint failed to

comply with PURA and the industry standards it incorporates when it selected fuses for its lines

that were too large. According to CenterPoint, these allegations not only complain about

CenterPoint’s “operations” and “services” but also implicate safety, design, and reliability—all

matters that the PUC has exclusive jurisdiction to regulate. Therefore, the PUC has exclusive

jurisdiction over issues regarding the standard of care applicable to fuse size and whether

CenterPoint complied with that standard, and plaintiffs are required to exhaust administrative

remedies.

Plaintiffs respond that the trial court properly denied CenterPoint’s plea to the jurisdiction

because (1) under PURA, plaintiffs are not “affected persons” who may initiate complaints at the

PUC, so it cannot adjudicate their claims; and (2) neither PURA nor PUC regulations address the

matter of fuse size, any general PURA or industry standards that may inform CenterPoint’s duty

9
are equivalent to common-law negligence standards, and the PUC does not adjudicate

compliance with such standards. As in Chaparral Energy, we begin by examining PURA’s

express provisions regarding PUC jurisdiction and then consider the more general provisions of

the regulatory scheme on which CenterPoint relies. See 546 S.W.3d at 138–39.

B. Because plaintiffs are not among those who may file a complaint in the PUC,
it does not have exclusive jurisdiction to adjudicate any part of their claims.

Plaintiffs contend their claims are outside the scope of the PUC’s exclusive jurisdiction

because they do not qualify under PURA to file a complaint with the agency because they are not

“affected persons”; thus, there are no administrative remedies for them to exhaust. CenterPoint

disagrees, asserting that PURA’s text and purpose confirm plaintiffs qualify as parties required to

seek relief from the PUC before proceeding in court. We conclude that plaintiffs are correct

because none of the issues underlying their claims complain of a statutory or regulatory violation

affecting their utility service or rates.

“A state agency has exclusive jurisdiction when the Legislature has granted it the sole

authority to make an initial determination in a dispute.” Id. at 138 (cleaned up). As noted above,

we begin with the presumption that the trial court is authorized to resolve the parties’ dispute, but

that presumption may be overcome by “clear and express statutory language” giving an agency

exclusive jurisdiction to adjudicate the matter. Subaru of Am., 84 S.W.3d at 220. We therefore

look to PURA to determine whether “the Legislature intended that the PUC determine this type

of dispute.” In re Sw. Bell Tel. Co., 235 S.W.3d at 625.

In Southwestern Bell, we grounded our holding that the PUC had exclusive jurisdiction to

adjudicate a customer’s claims against a utility regarding a surcharge in statutes empowering the

PUC to adopt review procedures, resolve billing disputes, and require refunds. Id. at 625–26.

10
Here, in contrast, no statutes give the PUC authority to adjudicate any part of the claims brought

by plaintiffs.

As discussed above, PURA gives the PUC exclusive jurisdiction over “the rates,

operations, and services of an electric utility.” TEX. UTIL. CODE § 32.001(a). But as we recently

explained, that provision addresses the PUC’s jurisdiction to regulate these activities. In re

Oncor Elec. Delivery Co., __ S.W.3d at __. The Legislature has also defined the PUC’s

authority to adjudicate disputes by describing more specifically how a plaintiff’s complaint must

relate to the rates, operations, or services of a utility to trigger exclusive PUC jurisdiction to

resolve that complaint. Under PURA, “an affected person” may file a complaint with the PUC

“setting forth an act or omission by a public utility in violation or claimed violation of a law that

the regulatory authority has jurisdiction to administer or of an order, ordinance, or rule of the

regulatory authority.” TEX. UTIL. CODE § 15.051. PURA defines an “affected person” as:

(A) a public utility or electric cooperative affected by an action of a regulatory
authority;
(B) a person whose utility service or rates are affected by a proceeding before a
regulatory authority; or
(C) a person who:
(i) is a competitor of a public utility with respect to a service performed
by the utility; or
(ii) wants to enter into competition with a public utility.

Id. § 11.003(1). Reading subsection (B) of the affected person definition (the only subsection

potentially applicable here) together with section 15.051, the PUC has jurisdiction to adjudicate a

person’s complaint that a utility’s act or omission violated either a law that the PUC has

jurisdiction to administer or a regulatory order, ordinance, or rule if the alleged violation affected

the person’s utility service or rates. See also In re Oncor Elec. Deliv. Co., __ S.W.3d at __

(explaining that scope of PUC’s exclusive jurisdiction to regulate “the charging of rates and

11
provision of electricity” “equally informs [its] jurisdiction to adjudicate disputes between

‘affected persons’ and utilities”); In re Tex.-N.M. Power Co., __ S.W.3d at __ (holding that

plaintiff’s complaints “are not about TNM’s operations and services as a utility”); Chaparral

Energy, 546 S.W.3d at 140 (concluding that customer’s “complaints arise from [the utility’s]

alleged breach of” agreement to “provide electric service”).

CenterPoint argues that under subsection (B), plaintiffs qualify as affected persons

because they are persons whose “service” is affected by a proceeding they would initiate. It

points us to the statutory definition of service: “any act performed and any facilities used . . . in

the performance of the utility’s duties under this title to . . . the public.” TEX. UTIL. CODE

§ 11.003(19). Plaintiffs counter that they are not persons whose utility service would be affected

by a PUC proceeding and their pleadings have never alleged otherwise.

In construing statutory language, “we presume the Legislature chose the statute’s

language with care, purposefully choosing each word, while purposefully omitting words not

chosen.” In re Commitment of Bluitt, 605 S.W.3d 199, 203 (Tex. 2020). And here, the

Legislature chose the language “a person whose utility service or rates are affected” to describe

who may file a complaint with the PUC. TEX. UTIL. CODE § 11.003(1)(B) (emphasis added).

“Whose” is not defined in the Utilities Code, but when a term is not defined in a statute, we look

to dictionary definitions for the term’s common meaning. City of Fort Worth v. Rylie, 602

S.W.3d 459, 467 n.19 (Tex. 2020). The word “whose” indicates possession and is defined as

“the possessive case of who.” Whose, WEBSTER’S NEW UNIVERSAL UNABRIDGED DICTIONARY

(1996). It is a “relative pronoun to indicate possession.” RONALD CARTER ET AL., ENGLISH

GRAMMAR TODAY: AN A–Z OF SPOKEN AND WRITTEN GRAMMAR (2016).

12
Here, neither Higgins nor plaintiffs possessed any service from CenterPoint, and

therefore they were not charged any rates. 8 We must give effect to all words of a statute and not

treat any language as surplusage. Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex.

2000). Giving effect to the word “whose,” plaintiffs are not “affected persons” under section

11.003 because they are not persons whose service or rates would be affected by a proceeding. 9

See In re Oncor Elec. Delivery Co., __ S.W.3d at __ (concluding that plaintiff’s suit “does not

complain about [utility’s] rates or his electrical service” or “allege damages arising from the

provision of his electrical service”). Our dissenting colleagues view this result of applying the

statutory text as “nonsensical,” and they would ask whether the complaint involved “[a]n electric

utility’s service” rather than an affected person’s service. Post at __. 10 But that is simply not

what the statute says, and it is not our job to second-guess the wisdom of the language chosen by

the Legislature.

CenterPoint asserts that any doubt about plaintiffs’ ability to proceed before the PUC is

dispelled by the definition of “complainant” in the PUC’s procedural rules. Complainant is

8
The parties disagree at length about whether the PUC’s administrative complaint procedures are available
to non-customers. Under section 17.157 of the Utilities Code, the PUC may resolve disputes between a “retail
customer” and a utility, but neither party argues that section is applicable here. Aside from that section, the
Legislature chose to define who may bring a complaint in the PUC as an “affected person,” and we presume the
Legislature chose this language with purpose. See In re Commitment of Bluitt, 605 S.W.3d at 203. We need only
interpret the applicable statutory language and determine whether plaintiffs qualify as affected persons. Thus,
contrary to the dissent’s suggestion, we do not hold that affected persons are limited to a utility’s customers.
9
In contrast, the claim in Chaparral Energy arose from an existing agreement regarding electric service
that was expressly governed by PURA. See 546 S.W.3d at 140. Thus, the claimant was an affected person under
section 11.003(1) who could file a complaint with the PUC.
10
We also note that the dissent’s proposed expansion of part (B) of the “affected person” definition to
include an electric utility’s service would render other parts of the definition surplusage. Specifically, part (A) of
the definition already includes “a public utility . . . affected by an action of a regulatory authority.” TEX. UTIL.
CODE § 11.003(1)(A). CenterPoint does not contend that the issues it asks the PUC to decide here are regulatory
actions affecting it, and we decline to rewrite part (A) to eliminate that requirement.

13
defined as “[a] person, including commission staff or the Office of Public Utility Counsel, who

files a complaint intended to initiate a proceeding with the commission regarding any act or

omission by the commission or any person subject to the commission’s jurisdiction.” 16 TEX.

ADMIN. CODE § 22.2(14). But those procedural rules also contain a definition of “affected

person” that tracks section 11.003(1), see id. § 22.2(4), and they provide that the rules “shall not

be construed so as to enlarge, diminish, modify, or otherwise alter the jurisdiction, powers, or

authority of the commission.” Id. § 22.1(b)(3). Exclusive jurisdiction to adjudicate a claim

brought by plaintiffs must come from the Legislature, not the PUC’s own procedural rules. See

Chaparral Energy, 546 S.W.3d at 138 (noting that the PUC is a legislative creation and has only

the powers “expressly conferred and necessary to accomplish its duties”). 11

Finally, CenterPoint asserts that plaintiffs would be accommodated as affected persons,

citing three PUC proceedings that it claims entertained complaints from members of the general

public. 12 We disagree with CenterPoint’s characterization of these complaints. In each, the

complainants owned land on which the PUC had granted utilities permission to install

transmission lines. See TEX. UTIL. CODE § 37.051 (requiring an electric utility to obtain from the

PUC a certificate of convenience and necessity before extending its service). The landowners

alleged that the utility companies were not complying with prior PUC orders. No one asserted

that the landowners did not qualify as affected persons, and the definition of service includes

11
Recognizing the inability of the PUC’s procedural rules to alter the statutory definition of “affected
person” does not prevent PUC staff and the Office of Public Utility Counsel (OPUC) from initiating or intervening
in a proceeding against a utility. The Utilities Code separately spells out the authority of PUC staff and OPUC. See,
e.g., TEX. UTIL. CODE §§ 13.003, 15.023, 15.104; see also note 15, infra.
12
See Complaint of Dan Agan against Entergy Tex., Inc., Tex. Pub. Util. Comm’n Docket No. 46407;
Complaint of Johnny H. against Oncor Elec. Delivery Co., Tex. Pub. Util. Comm’n Docket No. 40953; Complaint
of Cecil R. Atkission against Lower Colo. River Auth. Transmission Servs. Corp., Tex. Pub. Util. Comm’n Docket
No. 39516.

14
“facilities used or supplied by a public utility,” which would include the equipment supplied by

the utility. See id. § 11.003(10), (19).

In contrast, the PUC denied a landowner’s motion to intervene in a City’s application to

amend a Certificate of Convenience and Necessity where the landowner did not meet the

statutory definition of an “affected person” under the Water Code. Tex. Pub. Util. Comm’n,

Order No. 6 Denying Interventions, Application of City of Kenedy to Amend Water Cert., Docket

No. 48622 (Mar. 1, 2019), 2019 WL 1100065. As CenterPoint notes, the PUC found that it did

not have statutory authority to regulate the groundwater rights at issue, but it also denied the

motion to intervene, citing the Water Code’s definition of “affected person.” Id. (citing TEX.

WATER CODE § 13.002(1)). This authority confirms that the PUC requires a party to meet the

statutory requirements to be considered an affected person.

For these reasons, plaintiffs’ claims do not fall within the scope of PURA’s express grant

of exclusive jurisdiction to the PUC to adjudicate complaints. As an administrative agency, the

PUC has no inherent authority and may exercise only those powers conferred upon it by the

Legislature. Pub. Util. Comm’n v. GTE–Sw., Inc., 901 S.W.2d 401, 406–07 (Tex. 1995). By

defining who may file a complaint with the PUC, the Legislature indicated its intent to authorize

the PUC to adjudicate complaints filed only by those parties. PURA does not expressly grant the

PUC exclusive jurisdiction to adjudicate complaints by those who—like plaintiffs—are not

affected persons.

15
C. PURA’s regulatory scheme has not displaced the common-law standards
governing plaintiffs’ claims, and the PUC does not adjudicate compliance
with those standards.

Absent an express grant of jurisdiction, “an agency may also have exclusive jurisdiction

‘when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory

process to be the exclusive means of remedying the problem to which the regulation is

addressed.’” Chaparral Energy, 546 S.W.3d at 138 (quoting In re Sw. Bell Tel., 235 S.W.3d at

624–25). In Southwestern Bell, for example, we held that a claim regarding a telecommunication

utility’s excessive surcharges fell within the PUC’s exclusive jurisdiction under PURA’s

pervasive regulatory scheme. 235 S.W.3d at 627. We recognized the PUC’s exclusive

jurisdiction over the claim because the Legislature directed it to adopt a “method for

administrative review” as necessary to maintain the universal service fund as well as “rules for

the administration of the universal fund.” Id. at 625 (quoting TEX. UTIL. CODE § 56.023(a)(1),

(d)). We also relied on the Legislature’s authorization for the PUC to resolve disputes between a

customer and a utility, TEX. UTIL. CODE § 17.157(a), enjoin a utility from engaging in acts that

violate PURA, id. § 15.021, and assess administrative penalties for PURA violations, id.

§ 15.023. In re Sw. Bell Tel., 235 S.W.3d at 626.

CenterPoint asserts that PURA’s pervasive regulatory scheme also applies here, arguing

that plaintiffs’ complaints about its fuse-sizing practices and the design of its electrical

distribution systems concern its operations and services, which section 32.001(a) of the Utilities

Code grants the PUC exclusive jurisdiction to regulate. CenterPoint also contends that plaintiffs’

claims raise a host of questions regarding safety, design, and reliability that fall within the PUC’s

exclusive regulatory jurisdiction. Plaintiffs respond that unlike in Southwestern Bell, there are

16
no provisions in PURA or any PUC regulations issued thereunder that specifically address the

issue of fuse size, and they are not alleging any acts that violate specific PURA provisions.

Instead, plaintiffs argue that industry standards of reasonable care govern the issues underlying

their claims, and the PUC does not adjudicate compliance with such standards.

In evaluating these arguments, we begin with a detailed examination of plaintiffs’ claims

against CenterPoint. Those claims are rooted in common-law negligence; plaintiffs nonsuited

allegations of negligence per se following a vigorous challenge by CenterPoint. Plaintiffs allege

that CenterPoint has a duty to design, construct, operate, and maintain electricity distribution

systems, facilities, and instrumentalities that are safe, adequate, efficient, and reasonable. This

duty includes the responsibility to act and operate as a reasonably prudent electricity distribution

company, comply with law and industry standards (including PURA and the National Electrical

Safety Code), and use appropriate safeguards to protect those in proximity to ultrahazardous

electrical currents. To comply with its duty, plaintiffs maintain that CenterPoint must design,

construct, operate, and maintain its distribution system with a prudent and appropriate line

protection scheme, including coordinated use of breakers and fuses to de-energize lines promptly

when they experience faults.

Plaintiffs allege that CenterPoint breached this duty by failing to act as a reasonably

prudent owner, operator, and handler of the power line, equipment, and electricity, and that its

negligence proximately caused Higgins’s death. Specifically, they allege that CenterPoint’s line

protection scheme was not properly designed or coordinated on the circuit where the incident

occurred. Plaintiffs contend that had CenterPoint followed industry standards or even its own

17
internal standards regarding the type and size of fuse that protected the electrical line, the fuse

would have de-energized the electrical line before Higgins encountered it.

CenterPoint focuses on the allegation that it breached its duty of reasonable care by using

an improperly sized fuse, and it cites several statutes and regulations that it says bring the

discrete issue of fuse size within the scope of PURA’s pervasive regulatory scheme. In

particular, CenterPoint contends that fuse size is part of CenterPoint’s “services”—which include

its “facilities used” and “act[s] performed”—as well as its “operations,” all of which the PUC has

exclusive jurisdiction to regulate. TEX. UTIL. CODE §§ 11.003(19), 32.001(a).

CenterPoint also points to statutes and regulations setting general standards that could be

applied to the issue of fuse size. It cites Utilities Code section 38.001, which requires an electric

utility to “furnish service, instrumentalities, and facilities that are safe, adequate, efficient, and

reasonable,” as well as the PUC’s regulatory requirement that a utility “construct, install,

operate, and maintain its . . . lines in accordance with” the standards of the National Electrical

Safety Code. 16 TEX. ADMIN. CODE § 25.101(d). With respect to reliability, a PUC regulation

requires utilities to “make all reasonable efforts to prevent interruptions of service.” Id.

§ 25.52(b)(1).

We agree with CenterPoint that plaintiffs’ claims are about CenterPoint’s operations, 13

and that the issue of fuse size is one the PUC has exclusive jurisdiction to regulate under section

32.001. But as we explain below, the PUC has not exercised this jurisdiction: there is neither a

law administered by the PUC nor a PUC order or rule that regulates fuse size prospectively, so

13
As explained in Part II.B. above, however, plaintiffs’ claims are not about services CenterPoint rendered
to them. Thus, PURA does not expressly grant the PUC exclusive jurisdiction to adjudicate those claims.

18
there can be no complaint that CenterPoint violated any such standards in selecting the fuses at

issue. See TEX. UTIL. CODE § 15.051(a). Setting standards for fuse selection retrospectively to

resolve this dispute is not regulation, and adjudicating violations of laws that the PUC does not

administer is also not regulation. See Bowen, 488 U.S. at 218–19; In re Oncor Elec. Delivery

Co., __ S.W.3d at __ (explaining that PUC’s jurisdiction is “limit[ed] . . . to adjudications that

implicate regulatory matters”). 14 We conclude that the PUC is not empowered to resolve issues

relating to fuse size here because (1) none of the statutes or PUC regulations cited by

CenterPoint displace the common-law standard of care with respect to fuse size, and (2) whether

that standard has been met in individual cases is not a “question[] of rules and regulations

squarely within the PUC’s purview.” Chaparral Energy, 546 S.W.3d at 145. In short, PURA’s

pervasive regulatory scheme does not give the PUC exclusive jurisdiction because the parties’

dispute does not involve a PUC regulatory action. In re Oncor Elec. Delivery Co., __ S.W.3d at

__ (concluding common-law claim did not involve “a regulatory action within the [PUC’s]

auspices”).

Duties imposed by government regulation may in some cases supplant common-law

duties as the standard for tort liability. See W. PAGE KEETON ET AL., PROSSER & KEETON ON THE

LAW OF TORTS § 36 (5th ed. 1984). But “[w]e have consistently declined to construe statutes to

deprive citizens of common-law rights unless the Legislature clearly expressed that intent.”

14
Similarly, we agree with our dissenting colleagues that the PUC has exclusive original jurisdiction to
regulate what the standard for selecting fuses “should be.” Post at __. If the PUC does not like the common-law
standard or is concerned that it will result in disparate treatment of utilities in similar situations that is not
remediable through the appellate process, the PUC may adopt a different standard prospectively by regulation as
necessary to assure adequate and efficient service. But the dissent does not acknowledge the distinction between
regulation and adjudication, nor does it identify a source authorizing the PUC to adopt a new fuse standard
retrospectively through adjudication or to determine whether CenterPoint complied with such a standard before it
existed.

19
Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (applying this rule to reject

exclusive agency jurisdiction); see also Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 51 (Tex.

2015). And it is for a court—not the PUC—to decide whether the common law or statutes and

regulatory actions provide the duty by which an electric utility’s tort liability must be judged.

As CenterPoint correctly argued in resisting plaintiffs’ claim of negligence per se in the

trial court, PURA and PUC regulations do not clearly displace its common-law duty to operate as

a reasonably prudent electricity distribution company. The statutes and regulations say nothing

about fuse size; they require only that utilities act safely and reasonably. 15 Statutes and

regulations generally requiring a party to act safely or reasonably do not substitute a legislatively

imposed standard of conduct for the reasonable-person standard of common-law negligence.

E.g., Entex, a Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 8–9 (Tex. App.—Houston

[14th Dist.] 2002, pet. denied) (concluding statute requiring gas utility to furnish facilities that

are “safe, adequate, efficient, and reasonable” did not impose different duty); Ordonez v. M.W.

McCurdy & Co., 984 S.W.2d 264, 271 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (holding

that common-law negligence standard is read into statute imposing duty to act “safely”).

CenterPoint’s own evidence in the trial court confirms that industry practice—not a

regulatory scheme—informs its duty with respect to fuse size. CenterPoint’s expert testified in

an affidavit that the National Electrical Safety Code “does not specify how utilities should design

or operate their distribution system protection schemes,” nor does it “direct an electric utility

15
In contrast, the PUC has specifically regulated other interrupting devices. See Tex. Pub. Util. Comm’n,
Order at 10, Application of Magic Valley Elec. Coop., Docket No. 14652 (June 1, 1998), 1998 WL 35860710
(determining that “good utility practice calls for [particular] breaker relay settings”).

20
how to select or size fuses . . . to protect the electrical distribution system.” Rather, CenterPoint

“has the right to determine its own system protection philosophy and how it selects its system

protection devices.” The expert also testified that “[w]hen and where to use fuses for laterals is

up to the individual designer and there are no hard and fast rules,” and that the “design,

application and operation of CenterPoint’s distribution line protection system complied with

accepted good practice within the industry.”

In sum, as CenterPoint put the matter in its motion for summary judgment, “the PURA

provisions do not set out with sufficient clarity the ‘standard of conduct’ to which CenterPoint

Energy would be held.” Statutes and regulations that are consistent with common-law standards

do not indicate that the Legislature intended to grant an administrative agency the exclusive

means to remedy issues within their scope. 16

The PUC also lacks exclusive jurisdiction to determine whether CenterPoint complied

with the common-law standard of care in this case. By its own acknowledgment, the PUC lacks

“the authority to make common-law determinations” or “adjudicate contract claims and torts,”

and instead “makes regulatory determinations regarding whether a utility violated PURA,

Commission rules, and tariffs.” Tex. Pub. Util. Comm’n, Order at 2, Complaint of Giovanni

Homes Corp. Against Oncor Elec. Delivery Co., Docket No. 45854 (July 18, 2019), 2019 WL

3642716; see In re Oncor Elec. Delivery Co., __ S.W.3d at __. As the PUC sees the matter, its

regulatory determinations “might inform a court on aspects of claims within the court’s

16
Of course, the PUC may exercise its supervisory power over CenterPoint’s business by mounting its own
inquiry into whether CenterPoint’s fuse sizing is safe, reasonable, and compliant with national standards. See, e.g.,
TEX. UTIL. CODE §§ 14.001, 14.051, 38.001; 16 TEX. ADMIN. CODE § 25.101(d). But PURA does not give the PUC
exclusive jurisdiction to resolve disputes between a utility and a third party that are governed by the common law.

21
jurisdiction.” Tex. Pub. Util. Comm’n, Order at 2, Complaint of Giovanni Homes, Docket No.

45854. But “[t]he Legislature has not conferred on the Commission any general authority to

preside over tort actions.” Tex. Pub. Util. Comm’n, Preliminary Order at 5, Complaint of Sloss

Against AEP Tex. Inc., Docket No. 50284 (Apr. 17, 2020), 2020 WL 1973315. In fact, “[t]he

Commission has repeatedly stated that it does not have statutory authority to generally adjudicate

contract claims and torts or award damages.” Tex. Pub. Util. Comm’n, Amended Preliminary

Order at 12, Complaint of Vinson Against Oncor Elec. Delivery Co., Docket No. 40953 (May 21,

2013). Thus, the PUC found that a question regarding CenterPoint’s negligence in another case

was outside the scope of the proceeding because “[t]he Commission does not have jurisdiction to

adjudicate private tort . . . disputes.” Tex. Pub. Util. Comm’n, Preliminary Order at 3, Complaint

of Freedom Grp. LLC Against CenterPoint Energy Hous. Elec., LLC, Docket No. 33052 (Dec.

15, 2006), 2006 WL 3716004.

We agree with the PUC. Nothing in PURA gives the PUC “jurisdiction to administer”

the common law. TEX. UTIL. CODE § 16.051(a). In addition, as we explained in Chaparral

Energy, the Texas Constitution protects the right to have a jury resolve fact questions in actions

analogous to those tried by jury in 1876. 546 S.W.3d at 144 (citing TEX. CONST. art. I, § 15 &

art. V, § 10). Courts are not free to outsource to the PUC the authority to adjudicate common-

law questions and factual disputes properly decided by judges and juries. See In re Oncor Elec.

Delivery Co., __ S.W.3d at __. 17

17
Federal courts reach the same result under the so-called public rights doctrine. They recognize that
although some issues can be determined by the executive and legislative branches, others are “inherently judicial.”
N. Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50, 68 (1982) (plurality opinion of Brennan, J.). Public
rights include matters that arise between the government and others in connection with the performance of the

22
Finally, CenterPoint argues that plaintiffs’ claims implicate a standard of care set out in

its tariff with the PUC. PURA requires that all utilities file a tariff with the PUC setting out the

terms and conditions under which it provides electric utility service. TEX. UTIL. CODE § 32.101

(providing for the filing of a tariff that contains each rule “that relates to or affects” “a rate of a

utility” or “a utility service, product, or commodity furnished by the electric utility”). One of the

required provisions in a pro-forma tariff is that each utility will “construct, own, operate, and

maintain its Delivery System in accordance with Good Utility Practice.” 16 TEX. ADMIN. CODE

§ 25.214 (pro-forma tariff section 3.2).

CenterPoint asserts that the standards in the tariff generally inform its duties. We agree.

See First Assembly of God, Inc. v. Tex. Utils. Elec. Co., 52 S.W.3d 482, 492 (Tex. App.—Dallas

2001, no pet.) (“Texas courts examine the language of the tariff to determine if a duty exists.”).

But there are no requirements in CenterPoint’s tariff that would apply to the issue of fuse size

other than a general standard of care, which does not supplant the common-law standard as we

have explained. We see no indication that the Legislature intended the PUC to resolve issues

based on a tariff where no tariff provisions alter the applicable legal standards. Cf. Chaparral

Energy, 546 S.W.3d at 142 (holding that the PUC had exclusive jurisdiction over a breach-of-

contract case that could not “be resolved without considering and construing [the utility’s] PUC-

approved tariff”). In addition, any “defense that [a] tariff might limit [a utility’s] liability does

not create [PUC] jurisdiction.” In re Oncor Elec. Delivery Co., __ S.W.3d at __. We therefore

constitutional functions of the executive or legislative departments and can be adjudicated within those departments.
Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1373 (2018). On the other hand, a
private right—such as the right to recover damages for a breach-of-contract claim—cannot be wrested away from
the judicial power of Article III courts. N. Pipeline, 458 U.S. at 86–87.

23
hold that PURA’s comprehensive regulatory scheme does not deprive the trial court of

jurisdiction to adjudicate any issues raised by plaintiffs’ suit. 18

CONCLUSION

For these reasons, neither PURA’s express provisions nor the nature of its regulatory

scheme demonstrates that the Legislature intended the PUC to have exclusive jurisdiction over

any issues underlying this common-law negligence dispute. The trial court did not abuse its

discretion by denying CenterPoint’s plea to the jurisdiction, and we deny CenterPoint’s petition

for writ of mandamus.

__________________________________
J. Brett Busby
Justice

OPINION DELIVERED: June 30, 2021

18
The dissent misreads our opinion to say that the PUC has exclusive jurisdiction to adjudicate only
matters that it has already decided, so there will never be anything for the PUC to adjudicate. Post at __. Instead,
we hold simply that the PUC does not have exclusive jurisdiction to adjudicate what the standard of care is or
whether a utility complied with that standard when no statute or PUC regulation displaces the common law on those
matters. If the PUC had issued regulations setting its own fuse standards, there could still be disputes regarding
what the standards required on particular facts or whether a utility complied with those requirements. We need not
decide today the extent to which an affected person could be compelled to have the PUC adjudicate such disputed
issues because there are no existing applicable fuse regulations and plaintiffs are not affected persons.

24