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Texas REP Says ALJ's Application Of Texas PUC's Recent Order On Available Relief In Formal Complaints Could Have, "Far-Reaching And Problematic Consequences", Allow Competitors To Bring Complaints For Competitive Advantage
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Value Based Brands d/b/a Express Energy said in an appeal of an order from a Texas PUC ALJ that the ALJ's application of a recent Texas PUC decision concerning the relief available to formal complainants, "could have far-reaching and problematic consequences," including opening the door for competitors to file complaints against a REP for purposes of seeking a competitive advantage
As first reported by EnergyChoiceMatters.com, the PUC recently held that a, "Commission order finding violations occurred," is a form of relief which may be granted in a formal complaint case.
This contrasted with prior PUC rulings which have generally found that, absent specific relief available under the PUC's authority (such as a refund for over-charges), formal complaints which seek relief akin to damages (which are outside of the PUC's jurisdiction) or which seek an investigation of a REP (which is more appropriately addressed by the PUC's Enforcement Division rather than through a complaint case) should be dismissed for failure to state a claim for which relief can be granted
As previously reported by ECM, in a contemporaneous formal complaint by a former customer against Express Energy, an ALJ denied Express Energy's motion to dismiss, citing the PUC's recent ruling concerning available relief (Order No. 3)
Background concerning the allegations against Express Energy can be found here. Of note, the complaint concerns whether the customer entered into a deferred payment plan, and the customer has since switched away from Express Energy. The customer did not seek as relief a refund, but that Express be required to honor the prior alleged DPP
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."
The ALJ also said, "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."
Additionally, the PUC recently ruled that the lack of a complainant specifically enunciating, as sought relief, a request for a formal finding of violation does not mean that the PUC must dismiss the complaint and that such remedy is not available
The PUC recently said, "The scope of a contested case is not limited to only those statutes or rules cited in a petition. Instead, all pleadings at the Commission are to be construed so as to do substantial justice, and the Commission liberally construes pleadings to allow it to fulfill its obligations under the law. The [complainants in the other proceeding] have alleged conduct that, if true, could constitute violations of PURA, Commission rules, or Oncor's tariff. Therefore, the [complainants in the other proceeding] have asserted a claim for which relief, such as a Commission order finding violations occurred, can be granted if supported by the record to be developed in this proceeding."
Express Energy alleged that the ALJ's ruling denying Express Energy's motion to dismiss the complaint, for what Express Energy alleged was a failure to state a claim for which relief can be granted, broadens the PUC's recent holding in a manner contrary to caselaw, as Express Energy warned about, "far-reaching and problematic consequences."
Express Energy emphasized that, other than a finding that a rule was violated, the complainant has no available relief, as the complainant is no longer a customer (and thus can no longer enter a deferred payment plan with Express, which was the primary relief sought)
Express Energy said that allowing complaints to continue in which there is no "tangible" relief, other than a violation finding, would burden the PUC and PUC Staff, and could prompt spurious complaints by competing REPs for competitive advantage purposes
Express Energy said, "If the scope
of a formal complaint can be vastly widened by redefining the scope of what constitutes relief to
include privately-initiated litigation of whether a rule was not complied with (even if there is no
actual remedy available to the complainant), then it raises the question of what types of potential
violations can be pursued through the formal complaint process. Such a ruling risks allowing
individuals to seek to litigate perceived violations themselves, even with no goal of any recovery."
Express Energy posed, "For example, could an individual who lost power during a hurricane bring a complaint against a
TDU alleging that the TDU’s emergency operations plan does not comply with the Commission’s
rules? Could an individual bring a complaint against ERCOT if it does not timely file a report?"
Notably, Express Energy observed, "Could competitors nitpick each others’ operations and compliance filings for competitive
advantage?"
Express Energy said, "Opening the world of formal complaints up to complaints where there is no tangible
relief available risks broadening the scope of formal complaints to all Commission rules that can
be violated. It would also directly contravene Texas law that does not confer a private right of
action for enforcement of PURA or Commission rules."
If the reasoning of the ALJ's ruling stands, Express Energy warned that, "the Commission risks being
overwhelmed with formal complaints."
Express Energy contrasted the general tenor of the ALJ's order -- that any complainant may seek a PUC finding that a violation occurred even when no other relief is available -- with specific situations in which a complainant is seeking damages in court, but needs a PUC finding of a violation due to the PUC's exclusive jurisdiction over certain electricity matters
"Order
No. 3 erroneously broadens the Commission’s holding in Boyken from stating that a finding of
violation can in some cases be a form of relief, to stating that a finding of violation is always a
form of relief, regardless of what the complainant seeks. That reasoning is incorrect and would
materially increase the Commission’s and regulated companies’ burdens by allowing nearly any
formal complaint to continue, even if no tangible relief will ever be available to the complainant.
That is not the law and would not be good public policy," Express Energy said
Express Energy argued that the ALJ's decision is inconsistent with various Texas caselaw and the PUC's own rules
Express Energy argued that, "A party is not entitled to relief it did not seek."
"It is long standing precedent that a party 'is not entitled to relief it does not seek.' State v.
Brown, 262 S.W.3d 365, 370 (Tex. 2008); see also Horrocks v. Tex. Dept. of Transp., 852 S.W.2d
498, 499 (Tex. 1993) (per curiam)," Express Energy said
Express Energy further said, "When a court grants more relief
than requested, the judgment is 'erroneous.' G & H Towing Co. v. Magee, 347 S.W.3d 293, 298
(Tex. 2011) (per curiam)."
Express Energy thus argued, "If a party’s pleading
specifically requests a finding of violation as a necessary prerequisite for obtaining tangible relief
in an Article III court, that might potentially justify issuance of an order by the agency that does
nothing more than find that a rule violation occurred. But a complainant is not entitled to a finding
of violation as a form of relief if they do not seek that, and any order from the Commission granting
a finding of violations as a form of relief when it is not requested would be erroneous."
Express Energy argued that when the only relief available to a complainant is that a rule was violated, the outcome amounts to validation of a favored legal position, which is contrary to precedent on mootness
Quoting State ex rel. Best v. Harper, Express Energy said, "Mootness
occurs when events make it impossible for the court to grant the relief requested or
otherwise affect the parties' rights or interests ... When a case becomes moot, the court
loses jurisdiction and cannot hear the case, because any decision would constitute an
advisory opinion that is outside the jurisdiction conferred by Texas Constitution article II,
section 1."
Express Energy said, "As acknowledged in Order No. 3, the outcome of this complaint cannot affect Mr. Kelel [complainant]. A
finding of violation would do nothing but confer some type of validation to a favored legal
position. Granting that vindication to a favored legal position about past conduct would not grant
Mr. Kelel any actual relief. Accordingly, this complaint is moot and must be dismissed."
Citing various caselaw, Express Energy said, "Under the Texas Constitution, courts may not issue advisory opinions; rather, a justiciable
controversy must exist between the parties at all times during the proceedings."
"Order No. 3, unfortunately, directs that the parties are
to continue litigating so that the ALJ can eventually issue an order concerning an abstract question about rule compliance -- an order that will not and cannot lead to any relief requested by the
complainant," Express Energy said
"The obligation to continue to expend time and resources to litigate a
hearing that cannot provide any remedy to the complainant presents a material impairment of
Express Energy’s and Commission Staff’s rights, and it will needlessly waste Texas taxpayers’
resources by requiring extensive Commission and State Office of Administrative Hearings
(SOAH) activity on a matter that cannot lead to any remedy to the plaintiff," Express Energy said
Express Energy argued that the broad reading of available relief contradicts the PUC's existing rule allowing dismissal for mootness. Express Energy argued that if a finding of a violation is always a form of available relief, even if not requested by the complainant, no complaint could ever be considered moot
"Order No. 3’s reasoning should be rejected because it removes the ability for formal
complaints to ever become moot, effectively invalidating 16 TAC § 22.181(d)(2) as it applies to
complaints and discouraging the efficient resolution of complaints," Express Energy said
Express Energy sought a reversal of the ALJ's order, and that the complaint be dismissed
Express Energy said, "Express Energy acknowledges that a
decision on this issue could have broader implications for REPs and other entities regulated by the
Commission."
"If the Commission does not have sufficient legal information for dismissal at this
time, Express Energy respectfully asks the Commission to issue a briefing order on this topic [available relief, etc.],
allowing all interested stakeholders to provide the Commission with legal and policy analysis," Express Energy said
Docket 58743
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November 10, 2025
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Reporting by Paul Ring • ring@energychoicematters.com
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