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Texas REP Coalition Asks PUC Not To Apply Customer Complaint Non-dismissal Precedent From Regulated Utility Case To REP Complaint Cases (As ALJs Have Recently Done)
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The Texas REP Coalition, in an amicus filing, asked the Texas PUC to not apply recent precedent governing the dismissal (and non-dismissal) of complaints against monopoly delivery utilities to complaints filed against competitive retail electric providers, as the Texas REP Coalition cited unique statutory provisions as well as the difference between monopoly and choice service
As previously reported, the PUC, in a case addressing a customer complaint against a TDU (Oncor) and not a REP, recently found that an order from the PUC finding that a violation of rule, law, or tariff occurred is a form of relief available to complainants, and thus a motion to dismiss the complaint for lack of available relief was denied. Prior to this order, the PUC generally dismissed customer complaints in which the complainant's only sought relief had been akin to monetary damages, as the PUC lacks statutory authority to award damages
Additionally, the PUC in the Oncor case (cited as Oncor/Boyken) found that a complainant need not specifically request, as sought relief, that the PUC find that a violation occurred in order for the complaint to survive a motion to dismiss -- a complaint's allegations of behavior that would be violative is sufficient to establish that such relief is being sought by the complainant
As first reported by EnergyChoiceMatters.com, this new precedent has upended the treatment of formal complaints against REPs by presiding officers at the PUC. Complaints against REPs which typically did not survive a motion to dismiss, due to solely seeking damages or similar relief, are now surviving such motions -- and are being referred to SOAH -- as ALJs apply the PUC's Oncor/Boyken precedent
One instance in which a REP's motion to dismiss was denied is a complaint filed against Value Based Brands d/b/a Express Energy, which is the docket in which the Texas REP Coalition filed the amicus letter
The Express Energy complaint case generally involves customer allegations concerning whether the customer had entered into a deferred payment plan with Express Energy (more details here). Among other things, Express Energy has argued that, as the customer has switched away from Express Energy to a different REP, the customer's sought relief -- the offering of a DPP from Express Energy -- is no longer available, and thus no relief is available to the complainant
As noted, an ALJ rejected Express Energy's motion to dismiss
As previously reported (full story here), Express Energy appealed, to the Commission, the ALJ's order denying the motion to dismiss (Order No. 3), with Express Energy alleging that the ALJ's order, "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
The Texas REP Coalition supports Express Energy's appeal
"[T]he Texas REP Coalition is concerned about the
proposed interpretation and application of the Public Utility Commission of Texas’s (Commission) prior
decision in a complaint case involving a customer complaint against a monopoly regulated transmission
and distribution utility to the matters at issue in the formal complaint filed by this former customer of a
competitive REP," the Texas REP Coalition said in the amicus letter
"This extension of the Oncor/Boyken case would have far reaching effects that could
negatively impact customers, REPs, and the Commission," the Texas REP Coalition said in the amicus letter
The Texas REP Coalition said that, "Consistent with this emphasis on customer service, the Texas REP Coalition supports the
Commission’s commitment to construing pleadings 'so as to do substantial justice.'"
However, the Texas REP Coalition said that, "It is important to
recognize that the statutory authority to address customer complaints in PURA Chapter 15 is specific to
monopoly public utilities, whereas customer issues regarding competitive retail electric service are to be
governed by a dispute resolution process set out in PURA Chapter 17. While customer complaints against
both types of entities are processed under the same procedural rule, the substance of the review and
potential relief under the statute are not equivalent."
The Texas REP Coalition said that, "PURA Chapter 15 complaints involving utilities may involve Commission review of claims regarding
a utility’s act or omission that violates a Commission rule or order as follows:
(a) An affected person may complain to the regulatory authority in writing 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."
"However, Commission review of a customer dispute regarding a REP differs and contemplates that
the Commission can require a billing adjustment and ensure that the customer’s choice of provider is
honored. This type of review and relief is consistent with the statute on disputes related to competitive
service, which contemplates a more streamlined approach and states that the dispute should be resolved
in a timely manner and should not exceed 60 days," the Texas REP Coalition said
"It is not consistent with this statutory difference to
apply the utility complaint review standards recently adopted in the Oncor/Boyken case, pursuant to the
very different statutory framework under PURA Chapter 15 for monopoly regulated utilities, to a dispute
brought by a customer against a competitive REP under PURA Chapter 17," the Texas REP Coalition said
In particular, the Texas REP Coalition noted that in complaints against TDUs, such as in Oncor/Boyken, the customer has no alternative to taking service from the relevant monopoly utility
In Oncor/Boyken, the Texas REP Coalition noted that, "In that case, the customer had no option but to continue to receive delivery
service from the utility and thus the ongoing relationship would be governed by the Commission’s
determination of the regulatory requirements applicable to the utility."
In contrast, customers may choose their retail electric provider, and are not compelled to receive service from a specific REP.
The Texas REP Coalition noted that with respect to the Express Energy case, "the customer is no longer served by the REP
that is the subject of the complaint. Nor does the customer dispute the propriety of the charges for electric
service it received from the REP. The relief sought by the customer was to be put on a deferred payment
plan. That relief is not available where the customer is no longer served by the REP. Thus, even if the
Commission were to determine that a deferred payment may have been required by the rules, that
requested relief is moot where the customer is no longer served by the REP."
"Unlike the customer’s position
in the Oncor/Boyken case, where the customer had no choice in utility service provider, the customer of
the REP in the instant dispute voluntarily chose to switch away from Express Energy and chose to be
served by another REP of record. That is the ultimate relief in disputes regarding service by a competitive
REP," the Texas REP Coalition said
The Texas REP Coalition concluded by stating, "For the reasons stated in Express Energy’s Appeal and this Amicus Letter, the Texas REP Coalition
respectfully requests that the Commission clarify its contested case precedent to be where there is no
remaining relief that the Commission can grant within its jurisdiction in a formal complaint case against a
REP that the complaint will be dismissed. This is consistent with applicable legal principles that require a
redressable controversy for a case to proceed. Stated another way, a formal contested case proceeding
does not need to proceed to a hearing where the Commission order cannot provide any relief that would
address any harm alleged by the customer."
Docket 58743
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January 8, 2026
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Copyright 2026 EnergyChoiceMatters.com
Reporting by Paul Ring • ring@energychoicematters.com
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