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Latest Texas ALJ Ruling Provides Clearest Enunciation Yet Of PUC's New Tack In Addressing Formal Complaints Against REPs
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Another ruling in a formal complaint brought by a customer against a Texas retail electric provider provides the clearest enunciation of a change in how the Texas PUC is addressing formal complaints against REPs, and motions to dismiss
As first reported by EnergyChoiceMatters.com, in a recent formal complaint case brought by a customer against Oncor, the PUC held that the seeking by the complainant of a ruling from the PUC that a violation of law, rule, or tariff occurred is a form of relief which is within the power of the PUC to grant. Furthermore, the PUC held in the Oncor case that, in addressing a motion to dismiss from the respondent due to the lack of available relief, the complainant need not specifically ask, in so many words, that their sought relief is a finding from the PUC that a violation has occurred. Allegations from the complainant of behavior which would constitute violations is a sufficient demonstration of seeking, as relief, a determination of whether violations occurred, the PUC held
EnergyChoiceMatters.com immediately noted the applicability of this new tack to REP cases, in which respondent REPs often seek dismissal based on the lack of available relief to the complainant, as the PUC is not empowered to award damages, and typically other monetary issues (waiver of fees, refunds, etc) have already been resolved by the time that the formal complaint is filed. In most prior formal cases, such motions to dismiss were successful based on prior PUC precedent concerning available relief and/or mootness
As previously reported, under the new tack, PUC ALJs have already declined to dismiss two separate pending formal complaints against REPs based the new approach to available relief (see stories here and here). However, in both cases, neither ruling specifically cited or expanded upon the application of the PUC's recent precedent on the matter. Rather, the rulings merely noted that a finding that a violation occurred is a form of relief available to the complainants
Now, a ruling in a separate, third complaint case against another REP has specifically cited the PUC's new precedent, and has clearly set forth its application
The latest case involves a customer complaint against Express Energy (Docket 58743). Generally, the complainant alleges that Express Energy did not honor a deferred payment plan that complainant alleges was offered on a phone call and accepted by the complainant. The complainant further alleges that a disconnection for non-payment was improper because it occurred during the pendency of the complaint
Concerning disconnection, Express Energy said that a disconnection notice was issued prior to the filing of an informal complaint. Express Energy said that disconnection did not occur while such informal complaint was pending, and that disconnection occurred after the informal complaint was closed, and after further offers from Express for the complainant to enter a DPP. Express Energy said that the disconnection occurred the same day on which Express Energy learned of the filing of the formal complaint. Express Energy said that service was, "reconnected by Express Energy that same day."
Express Energy said, "On September 23, 2025, prior to becoming
aware of this complaint, Express Energy requested disconnection of Mr. Kelel's [complainant] electric service.
Later that same day, Express Energy requested Mr. Kelel's service be reconnected."
The complainant alleges that service was restored because the complainant selected another REP
Express Energy said, "Express Energy later became aware that Mr. Kelel terminated his
service with Express Energy on September 23 and signed with another provider."
Concerning the DPP, Express Energy alleged that no DPP was entered into by the complainant
Express Energy alleged that, on the initial call, "In response to this
offer [of a DPP], Mr. Kelel [complainant] did not indicate that he would like to enter into a DPP, but instead informed the agent that he would like to make a partial payment toward his summer invoices, with the remaining
balance to be distributed throughout the winter months to allow him time to become current. The
customer asked whether this was possible, and the agent stated 'yes.' The agent then advised
Mr. Kelel that he would escalate the issue of him not receiving his invoices to the appropriate
department. Mr. Kelel and the agent never agreed to any terms for a DPP or payment arrangement."
Describing subsequent interactions with the customer, Express Energy alleged, "The supervisor clarified that a past-due payment
of $53.16 had not been made by the due date, which triggered the disconnection notice. The
supervisor offered to assist in setting up a DPP and asked what amount Mr. Kelel would like to
include in the DPP. Mr. Kelel requested that his summer invoice balances be divided across the
winter months to help him catch up. The supervisor explained how the DPP works in detail.
Mr. Kelel reiterated that he had already set up an arrangement. However, the supervisor informed
him that no arrangement had been completed but assured him that one could be created. To help
resolve the issue, the supervisor offered to apply a credit to cover late fees once the $53.16 past-due balance was paid. Mr. Kelel again insisted that a DPP had been set up on the July 22 call and suggested that the supervisor review the call recording to verify the arrangement. The supervisor
agreed to review the recording and follow up with Mr. Kelel. Later that day, the supervisor from
Express Energy contacted Mr. Kelel to inform him that, after reviewing the call from July 22, 2025,
there was no recorded agreement or payment confirming the arrangement discussed. The
supervisor clarified the steps required to establish a DPP, emphasizing that the customer must
formally agree to the terms. The supervisor also provided Mr. Kelel with the current invoice details
and again offered assistance in setting up a DPP. In response, Mr. Kelel requested to defer the last
invoice, the current invoice, and the upcoming month's invoice due to increased usage, which had
resulted in higher invoices. The supervisor explained that Express Energy could only set up one
DPP at a time and could not set up the kind of arrangement that Mr. Kelel was requesting. Mr. Kelel
then requested to speak with another agent. The supervisor advised that the call would be escalated
and that Mr. Kelel should expect a callback. On August 20, 2025, an Express Energy corporate team member contacted Mr. Kelel
regarding his complaint about the DPP. Mr. Kelel maintained that a DPP had been set up on July 22.
The team member clarified that while a DPP was discussed, the setup process was not completed.
Mr. Kelel continued to disagree."
Express Energy alleged, "On September 2, 2025, the PUC's Consumer Protection Division (CPD) responded to
Mr. Kelel's informal complaint and advised that the steps to set up a DPP had not been completed
on the July 22 call and therefore a DPP was not established. Express Energy provided CPD a
recording of the July 22 call for them to review prior to making their recommendation. On
September 3, 2025, Express Energy contacted Mr. Kelel and advised that both a disconnection
notice fee and a late fee had been waived based on the recommendation of CPD. The Express
Energy agent additionally reviewed Mr. Kelel's options for a DPP, payment
arrangement/extension, and Express Energy's Budget Billing. Mr. Kelel declined to take any
action at that time to set up a DPP or other arrangement."
Express Energy had moved to dismiss the complaint with prejudice for mootness, and for failure
to state a claim for which relief can be granted under P.U.C. PROC. R. 22.181(d)(2) and (8).
Express Energy had said, "Dismissal of the entire complaint is warranted because Mr. Kelel filed his complaint seeking to
have Express Energy honor a DPP he alleges was created on July 22, 2025. As Mr. Kelel states in
his October 1, 2025 filing, Mr. Kelel is no longer a customer of Express Energy. Because Mr. Kelel
is no longer a customer, he cannot have an active deferred payment plan with Express Energy. Put
another way, even if the Commission were to find a DPP was created on July 22, Mr. Kelel's
current position would be no different -- Mr. Kelel would still owe Express Energy the same amount
in overdue funds and Express Energy could not honor a DPP for a person who is not its customer.
Mr. Kelel has no legally cognizable interest in the outcome of this case, and any ruling in this
complaint would be purely speculative. Mr. Kelel's complaint should be dismissed as moot and
for failure to state a claim for which relief can be granted."
PUC Staff had also moved to dismiss the complaint. Staff had said, "The live controversy in this case ceased once the Complainant terminated electric service
with Express."
The complainant has listed their sought relief as asking the PUC to, among other things, "Investigate Express Energy's failure to properly document customer
agreements and its retaliatory statements tied to PUCT complaints", "Investigate Express Energy's conduct, including retaliatory statements
tied to my PUCT complaint," and, "Investigate Express Energy's handling of my account and complaint."
An ALJ denied both motions to dismiss
Notably, the ALJ said, "A recent Commission decision concluded that, if a complaint alleges a violation of a rule
or statute that the Commission has authority to enforce, the Commission should make a finding as
to whether the violation occurred, even if a remedy can no longer be granted. Another recent
Commission order found that a finding that a violation occurred constitutes a form of relief in
itself, and any complaint alleging a violation of a rule or statute under the Commission’s authority
should be construed as a request for such a finding."
The ALJ said, "Mr. Kelel has alleged that his electric service was improperly disconnected and that his
deferred payment plan was not honored by Express Energy, both of which could be violations of
rules or statutes that the Commission has authority to enforce. Mr. Kelel is therefore entitled to a
decision as to whether violations occurred, even if no other relief or remedy can be granted."
Docket 58743
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October 29, 2025
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Copyright 2025 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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