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Another Complaint Against Texas REP Survives Motion To Dismiss As ALJ Says Complaint's Sought Relief Of Investigation Of Violation Is Relief Within PUC's Authority to Grant
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Another formal complaint case at the Texas PUC filed against a Texas retail electric provider has survived a motion to dismiss based, in part, on an ALJ's finding that a complainant's request, that the PUC investigate whether a violation of PURA occurred, is relief of a type that the Commission may grant.
The ALJ's order further reflects the shift in the PUC's treatment concerning relief sought through formal complaint against REPs
Previously, complaints which sought only relief akin to damages, or generally investigations or correction of REP behavior, were dismissed for failure to state a claim for which relief could be granted, especially if there was no alleged overcharge or incorrect charge and/or the REP had already made restitution but the complainant was still seeking further action
As previously reported, the PUC is now finding that a complainant's seeking of an investigation of whether a rule or law violation occurred is sufficient relief which the PUC may grant.
See more background here
In this case, the complaint, which was filed against Green Mountain Energy by complainant Anna Nyulund, initially alleged, among other things, the charging of excessive rates, and alleged damage to appliances caused by a disconnection for non-payment
Green Mountain Energy provided the following statement concerning the matter:
"Green Mountain believes that its billing and actions pertaining to the account were consistent with Complainant’s contract, Commission rules, and the statute."
--- Statement from Green Mountain Energy
In a motion to dismiss, Green Mountain had stated, "Even when a claim implicates rules within the Commission's jurisdiction, the Commission
has held that the claim should be dismissed for failure to state a claim upon which relief can be
granted if it is determined that no remedy is available to the complainant with respect to the claim."
Green Mountain noted that the PUC lacks authority to award damages
Green Mountain moved to dismiss the complaint for failure to state a claim for which
relief can be granted, per 16 TAC § 22.181(d)(8)
However, in subsequent filings, the complainant later clarified that the complainant was not seeking damages in the PUC proceeding
The complainant said that the "primary" relief sought is: (1) investigation and determination of whether the disconnection
violated PURA § 17.153 (customer complaints) [sic, unless numbering changed under 2025 updates to PURA not yet readily published, note that this section of PURA relates to REP records of disputed charges, while Sec. 17.152 addresses disconnection] and 16 TAC § 25.29 (service continuity) [note that this relates to obligations of non-retail choice utilities with respect to disconnections, not REPs]; (2)
correction of any improper charges or billing errors arising from the disconnection; and (3)
an order for service restoration or preventive measures to avoid further harm to the Property.
The ALJ said that complainant's filings have arguably included many different allegations, making it difficult at times to determine the relief that the complainant is seeking.
However, "the ALJ finds that Ms. Nyulund’s complaint states claims for which relief can be granted by the Commission," the ALJ said
Listing the three enumerated "primary" relief sought by the complainant cited above, the ALJ said, "The ALJ finds that all of this relief is of a type the Commission may grant."
The ALJ specifically cited PURA § 17.157(b)(6) which gives the Commission authority to, "investigate an alleged violation."
Thus, a complainant seeking as relief an investigation into whether a violation occurred is relief which is, "within the authority of the Commission to grant," the ALJ said
The ALJ noted that complainant's eligibility for such relief, though, is a matter of factual dispute which is not appropriate for resolution through a motion to dismiss
The ALJ denied Green Mountain’s motion to dismiss the full complaint for failure to state a claim for which relief can be granted under, as listed by the ALJ, "16 TAC § 22.181(8)" [sic, likely 16 TAC § 22.181(d)(8)]
As noted above, denial of a motion to dismiss which had relied on 16 TAC § 22.181(d)(8) departs from the prior approach that the PUC had been using with respect to complaints, under which the PUC had generally granted dismissals if the only relief sought was damages or a general investigation of the alleged behavior
The prior treatment of the question of relief in such cases is illustrated in an order on certified issues in Docket 37569 issued in April 2010, in which the PUC said that a complainant against another REP had no remedy with respect to certain alleged violations, as the PUC's review of remedies focused on the lack of a monetary remedy available under law, and not considering an investigation (and potential finding of violation) as an available remedy to an individual complainant
Specifically, the PUC had in 2010 answered the questions listed below as follows:
April 2010:
2. Do the Complainants have a remedy with respect to the claim that [REP] made misleading statements to the Complainants?
4. Do the Complainants have a remedy with respect to the claim that [REP] did not respond in good faith to Complainant's customer complaints?
PUC's ruling: "With respect to issues 2 and 4, the Commission determines that Complainant does not have a remedy available. PURA § 17.157(b)(3) allows the Commission to order monetary remedies to customers in instances where a customer has been overcharged or where unauthorized charges have been made. Complainant does not contend that he was overcharged or incurred unauthorized charges as a result of [REP's] alleged misrepresentations or [REP's] alleged failure to respond in good faith to Complainant. Therefore, Complainant cannot be granted a remedy under § 17.157. Additionally, neither P.U.C. Subst. R. 25.475(c)(1)(A) nor former P.U.C. Subst. R. 25.107(h)(6)1 provides a private party with a remedy for violations of their requirements. Complainant may not, therefore, seek a remedy under P.U.C. Subst. R. 25.475(c)(1)(A) nor former P.U.C. Subst. R. 25.107(h)(6). However, if a violation has occurred under either of those rules, the Commission may impose administrative penalties under chapter 15 of PURA."
In the instant complaint, Green Mountain had also sought dismissal on another grounds, alleging that the complainant lacks the capacity to pursue a complaint for the property in issue. Green Mountain alleged that the subject property is a part of an estate for which complainant used to be the guardian. Green Mountain alleged that the complainant no longer has the legal capacity to act on behalf of the estate, as Green Mountain cited a court order to such effect
However, the ALJ noted that the original complaint included invoices in which complainant was listed as the customer for the property and account at issue in this proceeding.
"Given that the disputed bills are in Ms. Nyulund’s name, and she claims to be the account holder, the ALJ concludes there is at least a fact issue that precludes dismissal. While the claims in this case could belong to the estate, and not Ms. Nyulund, the record does not establish that indisputably such that the case could be dismissed on that ground. Dismissal is not appropriate when there are disputed fact issues that must be resolved to determine the propriety of such dismissal," the ALJ said
The complainant's request for referral to SOAH for a hearing on the merits will be addressed in a future order, the ALJ said
Turning to the allegations against Green Mountain in the instant complaint, Green Mountain in responses to the complaint said that the complainant entered into a new contract on June 15, 2024, and that Green Mountain issued invoices
consistent with the terms of that contract and the usage reported to Green Mountain by the TDU.
In responses to the complaint, Green Mountain had said that the complainant does not allege that the disconnection notice did not comply with 16 TAC
§ 25.483(l) or (m), nor does complainant allege that complainant remitted the past due amount identified in the notice
on or before the disconnection date.
In responses to the complaint, Green Mountain noted that this matter was disposed of at
the informal resolution stage by the PUC's Consumer Protection Division (CPD) with no finding of
wrongdoing on the part of Green Mountain under 16 TAC § 25.479(c).
Docket 57989
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October 17, 2025
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Reporting by Paul Ring • ring@energychoicematters.com
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