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Texas REP Says PUC Staff Erred In Denial Recommendation, Ignored Definition Under Rules & Prior PUC Order
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EE REP 2, LLC said in a filing at the Texas PUC that PUC Staff, in recommending that a REP certificate amendment sought by EE REP 2, LLC be denied, made an erroneous conclusion concerning the two individuals that EE REP 2, LLC has listed to meet the requirements for prior competitive electric or gas industry experience
As previously reported, EE REP 2, in seeking a REP amendment to, among other things, reflect a change in control, has listed Tom McGinn and Marilee Stewart as the individuals that EE REP 2 will use to meet the requirement for prior competitive electric or gas industry experience
Staff had alleged that, "Both, Mr. Tom McGinn and Ms. Marilee Stewart were principals for Griddy Energy LLC, which had its REP certificate revoked by the Commission in Docket No. 51859 on August 4, 2022, following a mass transition of the company’s customers under 16 TAC § 25.43(l)."
Citing 16 TAC § 25.107(g)(1)(A)(i-iii), Staff alleged that Tom McGinn and Marilee Stewart are not eligible to be used to satisfy the requirement for prior competitive electric or gas industry experience. 16 TAC § 25.107(g) prohibits a "principal" of a former REP which had experienced certain occurrences, such as a POLR drop, from being used to meet the prior competitive electric or gas industry experience requirement for REP certification. See more background concerning this rule here
However, EE REP 2, LLC said that neither Tom McGinn nor Marilee Stewart were a principal of Griddy based on how the term principal is defined in the PUC's REP certification rules. EE REP 2, LLC alleged that Staff offered no evidence to the contrary
Staff had cited such individuals' inclusion in a Griddy REP certificate amendment, with the titles in such amendment listed as Senior Vice President for Marilee Stewart and Vice President for Tom McGinn
Notably, neither Marilee Stewart nor Tom McGinn were listed under a section of Griddy's filing in which the REP must specifically list, "Directors, Officers, or Principals".
EE REP 2, LLC said that the Griddy filing cited by Staff, "merely identif[ied] Mr. McGinn and Ms. Stewart as a Vice President and as a Senior Vice President, respectively."
"There is nothing in that [Griddy] application establishing -- using those titles or otherwise -- that Mr. McGinn or Ms. Stewart were 'principals' of Griddy as that term is defined by 16 TAC §25.107," EE REP 2, LLC said
EE REP 2, LLC further said that the PUC, in an order revoking Griddy's REP certificate, had "clearly and unequivocally" listed the principals of Griddy in a Finding of Fact
Neither Tom McGinn nor Marilee Stewart appear in the list of the principals of Griddy in such Finding of Fact included in the PUC's revocation order
EE REP 2, LLC said, "Thus, according to the Commission in its Finding of Fact No. 5, neither Mr. McGinn nor Ms. Stewart was a principal of Griddy. Commission Staff cannot now, three years after the Order was issued, attempt to rewrite the Griddy revocation Order and redefine the principals of the company to include Mr. McGinn and Ms. Stewart."
ECM notes that the Finding of Fact is phrased such that the finding recites a list of principals as listed by Griddy in a REP amendment filing.
Specifically, the cited Finding of Fact states, "In Docket No. 51622, the Commission amended the [Griddy] certificate to reflect a change in
ownership and control. In Griddy's application requesting the amendment, the following
individuals were listed as principals of the company: Michael Fallquist, chief executive
officer; Roop Bhullar, chief financial officer; Christian McArthur, chief operating officer;
Gregory Craig, director; and Nicholas Bain, director."
EE REP 2, LLC emphasized the development of the record in the Griddy revocation proceeding which led to the Finding of Fact
EE REP 2, LLC said, "Griddy’s revocation proceeding, Docket No. 51859, was a contested proceeding that took over 17 months to process. It was finally resolved by a Settlement Agreement entered into by Commission Staff, Griddy, the Office of Public Utility Counsel (OPUC), and the Electric Reliability Council of Texas, Inc. (ERCOT). In the Commission’s Order, after having the full record before it, the Commission made numerous findings of fact, including Finding of Fact No. 5 that clearly and unequivocally lists the principals of Griddy. Absent from that list are Mr. McGinn and Ms. Stewart. Thus, according to the Commission in its Finding of Fact No. 5, neither Mr. McGinn nor Ms. Stewart was a principal of Griddy."
EE REP 2, LLC said, "The Texas Supreme Court has long held that courts and agencies are required to interpret earlier agency orders using the same rules that are used to construe statutes. The Texas Third Court of Appeals, which handles most administrative appeals, has held similarly. In reading a statute, courts give effect not only to the terms used, but the terms that the legislature chose not to use in construing a statute. In this instance, the plain, unambiguous language in Commission’s Order in Docket No. 51622 must be given effect, and that language does not include Mr. McGinn or Ms. Stewart as principals of Griddy. That Mr. McGinn and Ms. Stewart are not mentioned by the Commission’s Order means just as much as the Commission’s affirmative naming of certain individuals in that Order. In addition, it is worth noting that the Commission’s procedural rules intend for the legal doctrines of res judicata and collateral estoppel apply to Commission proceedings."
EE REP 2, LLC said, "the Commission’s Final Order in Docket No. 51622 made a specific finding that would serve as an identification of those individuals who would be precluded from certain roles in the Texas retail electric market. The absence of Mr. McGinn’s and Ms. Stewart’s names on that list is instructive and dispositive, and to find otherwise would be inconsistent with well-established legal precedent. And because a conclusion here, as Staff suggests, that Mr. McGinn and Ms. Stewart were principals of Griddy would be based solely on their titles, and without an evidentiary hearing being held that sought to determine that fact, it would violate Mr. McGinn’s and Ms. Stewart’s due process rights."
Additionally, putting the prior Finding of Fact aside, EE REP 2, LLC said that neither Tom McGinn nor Marilee Stewart were principals at Griddy under the definition of principal in the REP certification rules
The REP certification rule states, in a definition section, as follows:
Principal -- Includes:
(A) A sole proprietor;
(B) A partner of a partnership;
(C) An executive of a company (e.g., a president, chief executive officer, chief operating
officer, chief financial officer, general counsel, or equivalent position);
(D) A manager, managing member, or a member vested with the management authority
of a limited liability company or limited liability partnership;
(E) A shareholder with more than 10% equity of the REP, if a public company; or
(F) A person who exercises control and has apparent or actual authority to exercise such
control over either the REP or a principal that is otherwise described by this
subsection. A consultant, third-party provider, or fiduciary of a company such as the
board of directors, is a principal if it has apparent or actual authority to exercise
control over the REP or principals of the REP, and exercises such control.
ECM notes that the definition section states what "principal" includes, but does not state in one way or the other whether such list is exhaustive
EE REP 2 said of the listed categories for a principal, "the only possible categories into which Mr. McGinn and Ms. Stewart could fit are 16 TAC §25.107(b)(13)(C), which covers certain executives, and 16 TAC §25.107(b)(13)(F), which covers persons with control over a REP."
"In both instances, the individuals in question did not have the requisite control over Griddy to be considered a principal of that company," EE REP 2 said
EE REP 2 said, "The language of 16 TAC §25.107(b)(13)(C) includes the word 'executives' and further defines that word as the 'president, chief executive officer, chief operating officer, chief financial officer, general counsel, or equivalent position.' Neither Mr. McGinn nor Ms. Stewart held any of those named roles. And it is not possible to consider vice presidents as holding an 'equivalent position' to those named roles, when Mr. McGinn and Ms. Stewart were subordinate to the people holding those roles. While Mr. McGinn and Ms. Stewart were given the authority to carry out the responsibilities assigned to them, the policies, direction, and control of the company were not within their authority."
EE REP 2 said, "While vice presidents may appear in the definition of other terms in Section 25.107, they do not in the definition of 'principal,' which is the only relevant definition in this analysis. When defining what kinds of 'executives' should be considered 'principals,' the drafters of the Commission rules could have included vice presidents, but they did not."
EE REP 2 requested that an ALJ reject Staff’s assertion that Mr. McGinn and Ms. Stewart were principals of Griddy, allow EE REP 2 to use them as individuals whose experience is counted toward the requisite number of years of experience, and grant the certificate amendment
Alternatively, if the ALJ is inclined to accept Staff’s recommendation, EE REP 2 requested that the ALJ forego a ruling on Staff’s recommendation in favor of consideration of EE REP 2 filing an amendment to its application to addresses the "erroneous" concern raised by Staff, by substituting additional personnel to meet the experience requirements, "which EE REP 2 intends to file in an abundance of caution to facilitate the approval of its application."
As previously reported, EE REP 2, LLC was formerly known as MI Texas REP 2, LLC.
As first reported by EnergyChoiceMatters.com, as of September 1, 2025, MI Texas REP 2, LLC experienced a change in ownership and control. The new owner and direct parent company of MI Texas REP 2, LLC is Elevate Energy, LLC (which also holds Texas REP Certificate No. 10353 and which is part of Energywell).
EE REP 2, LLC is seeking various amendments to its REP certificate to reflect the transaction
Docket 58646
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November 12, 2025
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Reporting by Paul Ring • ring@energychoicematters.com
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