Barbara Fasken v. Public Utility Commission of Texas Cap Rock Electric Cooperative, Inc. And Southwestern Public Service Company

• Court: Court of Appeals of Texas
• Decided: December 8, 1993
• Docket: 03-93-00371-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



NO. 3-93-371-CV

BARBARA FASKEN,

APPELLANT

vs.

PUBLIC UTILITY COMMISSION OF TEXAS; CAP ROCK ELECTRIC COOPERATIVE, INC.; AND SOUTHWESTERN PUBLIC SERVICE COMPANY,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 93-07374, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

PER CURIAM

Appellant Barbara Fasken appeals from a judgment denying, without prejudice, her petition for writ of mandamus filed in the district court of Travis County. Fasken sought issuance of the writ to compel appellee Public Utility Commission to determine applications for certificates of convenience and necessity of appellees Cap Rock Electric Cooperative, Inc., and Southwestern Public Service Company. See Public Utility Regulatory Act, Tex. Rev. Civ. Stat. Ann. art. 1446c, § 54(f) (West Supp. 1993) ("PURA"). ⁽¹⁾ Fasken has filed a motion to dismiss the cause as moot. Cap Rock Electric and Southwestern have responded and requested this Court to dismiss the appeal for want of jurisdiction or, alternatively, to dismiss the appeal but not the cause. Because we determine that the cause is moot, we will grant the motion to dismiss the cause. See City of Garland v. Louton, 691 S.W.2d 603, 604-5 (Tex. 1985).

Southwestern and Cap Rock Electric filed applications for certificates of convenience and necessity ("CCN") for the construction of transmission facilities in February and June 1992. See PURA, § 50 (West Supp. 1993). In June 1993, after the Commission remanded the proceeding to the hearing examiner for additional evidence, Fasken filed her original petition pursuant to section 54(f) of PURA. Documents admitted into evidence at the district-court hearing showed that the Commission would consider a final order in the proceeding on September 15th. Based on that evidence, the district court denied the petition "without prejudice to Fasken filing a petition for mandamus after September 15, 1993, if the Commission does not approve or deny the applications . . . ." This order underlies the appeal now before this Court.

Fasken asserts that the appeal is moot because the Commission issued its written order granting the applications for CCN on September 14th. Fasken filed a motion for rehearing that was overruled by operation of law on October 29th. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, sec. 1, § 2001.146(c), 1993 Tex. Gen. Laws 583, 748 (to be codified as Administrative Procedure Act, Tex. Gov't Code Ann. § 2001.146(c)). Accordingly, any order on the petition for writ of mandamus can have no effect because the Commission has already acted in the proceeding underlying the petition.

To decide the appeal under such circumstance would constitute an advisory opinion. Texas Parks & Wildlife Dept. v. Texas Ass'n of Bass Clubs, 622 S.W.2d 594, 594 (Tex. App.--Austin 1981, writ ref'd n.r.e.). Article V, section 8 of the Texas Constitution prohibits the rendition of advisory opinions. Tex. Const. art. V, § 8; Fireman's Ins. Co. v. Burch, 442 S.W.2d 331, 333 (Tex. 1969). Appellate courts, therefore, do not decide cases in which no actual controversy exists between the parties at the time of the hearing. City of W. Univ. Place v. Martin, 123 S.W.2d 638, 639 (Tex. 1939); Texas Dept. of Health v. Long, 659 S.W.2d 158, 161 (Tex. App.--Austin 1983, no writ). Because the Commission has granted the applications in the proceeding in which Fasken sought to compel a decision, the controversy no longer exists. See City of W. Univ. Place, 123 S.W.2d at 638-39. A judgment of this Court would have no effect for want of a subject matter upon which to operate, whether to order the Commission to grant or deny the applications for CCN. See Texas Dept. of Health, 659 S.W.2d at 160. We, therefore, grant Fasken's motion to dismiss the cause.

Nevertheless, Cap Rock Electric and Southwestern urge us to dismiss the appeal for want of jurisdiction. Fasken's suit in the district court was a cause of action authorized by section 54(f) of PURA. In its judgment of July 19th, the district court disposed of all issues and parties before the court and, thereby, rendered a final, appealable order. North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966); North W. Life Ins. Co. v. Walters, 663 S.W.2d 125, 126 (Tex. App.--Austin 1983, no writ). This Court has jurisdiction over appeals from final judgments of the district court of Travis County. Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (West 1986); Tex. Gov't Code Ann. §§ 22.210(d), .220(a) (West 1988); Felderhoff v. Knauf, 819 S.W.2d 110, 111 (Tex. 1991); North E. Indep. Sch. Dist., 400 S.W.2d at 895. But see Pelt v. State Bd. of Ins., 802 S.W.2d 822, 827 (Tex. App.--Austin 1990, writ denied); Hancock v. State, 800 S.W.2d 683, 684 (Tex. App.--Austin 1990, writ denied) (trial-court order resolving discovery dispute in agency proceeding is interlocutory order). We overrule the motion to dismiss the appeal for want of jurisdiction.

Alternatively, appellees request us to dismiss the appeal but not the cause. When a case becomes moot on appeal, the appellate court sets aside the district-court judgment and dismisses the cause. City of Garland, 691 S.W.2d at 604-5; City of W. Univ. Place, 123 S.W.2d at 639. To dismiss only the appeal would effectively affirm the lower-court judgment without consideration of any of the points of error. Texas Foundries, Inc. v. International Moulders & Foundry Workers' Union, 248 S.W.2d 460, 461 (Tex. 1952); Robertson v. Land, 519 S.W.2d 227, 229 (Tex. Civ. App.--Tyler 1975, no writ).

For the preceding reasons, we overrule the motion to dismiss the appeal and grant the motion to dismiss the cause. The judgment of the district court is vacated and the cause is dismissed as moot.

Before Chief Justice Carroll, Justices Aboussie and B. A. Smith

Judgment Vacated and Cause Dismissed as Moot

Filed: December 8, 1993

Do Not Publish

1. ¹  Section 54(f) provides:

If the application for a certificate of convenience and necessity involves new transmission facilities, the commission shall approve or deny the application within one year after the date the application is filed. If the commission does not approve or deny the application before this deadline, any party may seek a writ of mandamus in a district court of Travis County to compel the commission to make a decision on the application. Public Utility Regulatory Act, Tex. Rev. Civ. Stat. Ann. art. 1446c, § 54(f) (West Supp. 1993).