TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
444444444444444 NO. 03-00-00113-CV 444444444444444
Lamb County Electric Cooperative, Inc., Appellant
v.
Public Utility Commission of Texas; Bailey County Electric Cooperative Association; Mobil Exploration & Producing U.S., Inc.; Southwestern Public Service Company; Texaco Exploration and Production, Inc., Appellees
44444444444444444444444444444444444444444444444444444444444444444 FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. 99-03368, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING 44444444444444444444444444444444444444444444444444444444444444444
Lamb County Electrical Cooperative, Inc. (the “Cooperative”) sued the Public
Utility Commission (the “Commission”) to set aside a final order issued by the Commission in
a contested case. Southwestern Public Service Company (“SPS”), a prevailing party in the
contested case, intervened in the lawsuit in defense of the Commission’s order. The Cooperative
appeals now from a trial-court judgment affirming the order. We will reverse the judgment and
the order and remand the cause to the Commission.
The controversy has a rather complex procedural element that we will summarize
as briefly as possible. The Public Utility Regulatory Act of 1975 established a new regulatory
regime for public utilities. The newly constituted Commission began licensing retail public
utilities as exclusive providers of electric power in designated geographical areas (“service
areas”). The monopoly right to provide such power was evidenced by the Commission’s certificates of convenience and necessity issued to the utilities. The monopoly right was and is
protected by statutes prohibiting a utility’s interference with another public utility’s operations
within its service area. See generally Public Utility Regulatory Act (“PURA”), 75th Leg., R.S.,
ch. 166, § 1, Tex. Gen. Laws, 713, 786, 787, 789 (Tex. Rev. Civ. Stat. Ann. art. 1446c, §§ 50,
53, 60 since repealed and codified at Tex. Util. Code Ann. § 37.051, .056, .156 (West 1998 &
Supp. 2000)); see also Bradley J. Toben, Certificates of Convenience and Necessity under the
Texas Public Utility Regulatory Act, 29 Baylor L. Rev. 115, 116 (1976).
DOCKET 42
In a 1976 proceeding before the Commission (“Docket 42"), the Cooperative and
SPS obtained their respective certificates of convenience and necessity. Their designated service
areas shared, to a large extent, a common boundary. Certain of SPS’s distribution lines, erected
before 1976, lay across the new boundary and served a number of oil wells situated in the
Cooperative’s assigned service area. The wells were combined in two production units, one
operated by Texaco, Inc. (“Texaco”) and the other by Amoco Production Company (“Amoco”).
Anticipating such situations, the Commission had promulgated a rule that encompassed, within
a utility’s certificate of convenience and necessity, a 400-foot corridor through which a utility
might lawfully continue its pre-1976 service over existing lines, even within another utility’s
service area. In Docket 42, however, SPS was expressly denied such a corridor in deference to
a contract entered into by SPS and the Cooperative to adjust the situation on their own terms.
See Tex. Rev. Civ. Stat. Ann. art. 1446c, § 56 (since repealed) now codified at Tex. Util. Code
2 Ann. § 37.155 (West 2000). The Commission approved and incorporated the contract in its final
order in Docket 42, providing as follows in the agency’s Conclusion of Law Number Seven:
If any distribution lines of Southwestern Public Service Co. . . are located outside the service area boundaries as shown on Staff Exhibits 1 through 15, pursuant to agreement by the parties, [SPS is] granted a Certificate of Convenience and Necessity for the facility itself only insofar as such facility is utilized to serve customers presently being served. [SPS] is not granted a Certificate of Convenience and Necessity for a 400-foot corridor as provided by the Commission Rule .056(b)(b)(B).
(Emphasis added.) We will refer to this determination hereafter as “Conclusion of Law Number
Seven.” The parties’ disagreement about the meaning and effect of Conclusion of Law Number
Seven lies at the center of the present litigation.
DOCKET 2991
On December 27, 1979, the Cooperative initiated Commission Docket 2991,
requesting a cease-and-desist order requiring SPS to terminate its electric service to “consuming
facilities” within the Cooperative’s service area. The Cooperative alleged that SPS had
expanded service over its distribution lines to Texaco and Amoco in violation of Conclusion of
Law Number Seven. The alleged violation consisted of SPS’s providing additional electric
power over new lines built by Texaco and Amoco to serve “thirty or more new oil field loads”
owned by Amoco and “six new loads” owned by Texaco in another unitized field. (Emphasis
added.)
In a final order issued January 8, 1981, the Commission did not expressly rely
upon, reject, distinguish, or assign meaning to Conclusion of Law Number Seven, the basis for
3 the Cooperative’s allegation that the additional “loads” over and above the 1976 “loads” were
a violation of the final order in Docket 42 and Conclusion of Law Number Seven. Instead, the
Commission simply refused the Cooperative’s request for a cease-and-desist order on the single
ground that the public interest dictated that SPS be allowed to continue service over Amoco’s
and Texaco’s newly constructed lines. The rationale for this conclusion was as follows: (1)
customer-owned distribution lines were an established practice in developing oil fields and
necessary for their proper development in various respects; and (2) Amoco’s and Texaco’s lines
were “energized” from SPS’s distribution lines at points within the areas “grandfathered” to SPS
in Conclusion of Law Number Seven.
DOCKET 14454
On July 24, 1995, the Cooperative initiated Commission Docket 14454, the
contested case now before us. The Cooperative requested a cease-and-desist order prohibiting
SPS’s supplying power within the Cooperative’s service area by means which the Cooperative
alleged were unlawful and in violation of Conclusion of Law Number Seven. The Cooperative’s
petition alleged the following particulars regarding SPS’s conduct:
1. SPS was using its “grandfathered” distribution lines to supply electric power
to (a) new facilities, (b) new facilities of new customers via pre-1976 customer facilities, and
(c) pre-1976 customers who had acquired additional facilities from other SPS customers;
moreover, SPS had expanded, upgraded, and now utilized differently its “grandfathered”
distribution lines.
4 2. SPS was supplying new facilities unlawfully over customer-owned lines built
to connect with SPS power at points within the SPS service area or points along its
“grandfathered” distribution lines.
3. SPS had constructed new distribution facilities across the shared boundary to
connect with consuming facilities within the Cooperative’s service area.
4. SPS was unlawfully providing power to former Cooperative customers who
had discontinued Cooperative service
5. SPS was metering within its service area power supplied by SPS to “individual
consuming facilities” that were unlawfully “submetered” in the Cooperative’s service area.
Some of the foregoing allegations appear perhaps to overlap; we have summarized
the allegations as best we can. The contested case was terminated by the Commission’s
summary decision in Docket 14454 before the allegations were fully developed.
In the course of Docket 14454, the Commission thrice stated its opinion that
Conclusion of Law Number Seven was “decidedly ambiguous” on the issue of whether it
restricted SPS to serving its pre-1976 “customers” and “consuming facilities,” or whether it
authorized SPS to enlarge its service to include additional “consuming facilities” so long as
power was supplied to those additional facilities through a pre-1976 “customer.” In an order
signed April 1, 1996, the Commission summarized the parties’ “cogent, legal, equity, and policy
arguments to support [their] differing interpretations of” Conclusion of Law Number Seven. In
its order, the Commission expressly declined to decide upon a correct interpretation. The
Commission explained that such a decision would be unnecessary if SPS applied for “dual
5 certification” authorizing it to serve the disputed additional facilities. The Commission abated
Docket 14454 to allow SPS to seek such dual certification. SPS began a proceeding of that
character. It was never consummated, however, and the Commission resumed its consideration
of the dispute in Docket 14454.
SPS moved for “summary disposition” of the Cooperative’s petition for a cease-
and-desist order under a Commission rule that authorized granting such motions when there was
no genuine issue as to any material fact and the moving party is entitled to a decision in its
favor, as a matter of law, on “issues” expressly set forth in the motion. 1 The Commission
granted the SPS motion.
If we understand correctly SPS’s motion for summary disposition, it sets forth two
“issues” or grounds that allegedly controlled the litigation in Docket 14454 and entitled SPS to
a decision in its favor as a matter of law. The grounds were as follows:
1. In two preliminary orders in Docket 14454, the Commission “held” correctly
that SPS’s disputed service was lawful. This is incorrect. Each of the two preliminary orders
merely stated the Commission’s view of why a decision on the lawfulness of SPS’s service was
unnecessary; and, the two orders expressly left that issue open for argument and a proposed
decision after a hearing before the administrative-law judge. See the Commission’s
“Preliminary Order” and “Supplemental Preliminary Order” signed respectively on October 17,
1996, and April 24, 1998. Accordingly, we need not refer further to this contention.
1 See 16 Tex. Admin. Code § 22.182.
6 2. The Commission’s 1981 decision in Docket 2991, involving the Cooperative’s
request for a cease-and-desist order, was res judicata of all claims and issues in Docket 14454.2
We will discuss this ground below.
Because the case was decided summarily by the administrative-law judge, as a
matter of law, the Cooperative was denied an opportunity to introduce evidence it contended
was material. The administrative-law judge, in his proposal for decision, summarized as follows
the excluded evidence the Cooperative had offered to introduce in support of its claim that SPS’s
conduct was unlawful and in violation of Conclusion of Law Number Seven:
The details of the background facts surrounding the original certification proceedings in 1976, including a transcript of the Docket No. 42 proceeding.
The original intent and meaning of the grandfather provisions of Docket No. 42. Documentary evidence would be offered as well as witness testimony by individuals who participated in formulating the agreement reached in that docket.
Details of the more than 600 consuming facilities at issue in this proceeding.
Details regarding the identity and location of the original SPS distribution lines coming within the 1976 grandfather provision.
Changes in facility and utilization of the original grandfathered distribution lines, which had resulted in the conditions precedent to certification being lost, resulting in expiration of the original grandfathered certification as a matter of law.
Details of each well by map location and meter identity that are consuming facilities being served with SPS energy [across the shared boundary] via customer-owned lines.
2 Res judicata is a basis for summary disposition under the Commission’s rules. See 16 Tex. Admin. Code § 22.181(a)(1)(c).
7 Detailed identity and map locations where SPS had openly constructed overhead lines across the [shared] boundary to serve an agricultural-related consuming facility in [Cooperative] territory.3
Details of map location and meter identity where SPS has interfered with [the Cooperative’s] current operations and service by connecting a consuming facility to SPS service which was previously served by [the Cooperative in its service area].
Details of map location and meter identity of consuming facilities subject to sub- meter and/or deduct meter wherein SPS service is being charged to customers through sub-meters at the end of other customer-owned lines.
Evidence establishing [the Cooperative’s] difficulty in discovering SPS’s “massive encroachment” into [Cooperative] territory.
THE COMMISSION’S FINAL ORDER IN DOCKET 14454
The only material fact finding in the Commission’s final order is that the
boundaries of the two production units have not changed since 1976, although the number of
wells in each production unit have increased since that time. It appears undisputed that the
number of wells served by SPS in the Cooperative’s service area, at the time of the hearing, was
about 600.
The final order grants SPS’s motion for summary disposition and denies the
Cooperative’s petition for a cease-and-desist order based on the following conclusions of law:
3 In his proposal for decision, the administrative-law judge noted that the Cooperative’s petition contained “no apparent allegation regarding agricultural related consuming facilities.” We observe that the Cooperative’s allegations are quite general. It does not appear, however, that anything akin to a more definite statement was ever required by the Commission or that the Commission ever sustained something like a special exception levied against the Cooperative’s petition.
8 1. Commission Docket No. 42 authorized SPS to provide service to SPS’s customers at the time of the issuance of the final order in 1976, that being the oil field operators Texaco and Amoco. The certification in this area otherwise singly certificated [sic] to [the Cooperative] was limited to the established geographical boundaries of each oil field operator’s unit. Docket No. 42 authorizes SPS to expand its service to these existing customers within each unit.
2. In Docket No. 2991, the Commission confirmed that, pursuant to Docket No. 42, SPS may lawfully serve Amoco and Texaco’s new and future electric service needs in the area otherwise singly certificated [sic] to [the Cooperative].
2A. It is appropriate to resolve this issue in this docket as a matter of law, based on the interpretation of prior Commission orders, therefore, no evidentiary hearing is necessary.
The final order also adopts the proposal for decision filed by the administrative-law judge. The
material parts of that document may be summarized as follows:
1. Although the Cooperative maintains that SPS is encroaching on the
Cooperative’s service area in five particulars (grandfathered rights, customer-owned facilities,
new construction, interference with Cooperative operations, and “submetering”), these
allegations “are simply different aspects” of the Cooperative’s contention that SPS’s
grandfathered service to the oil company operating units could not be extended to new wells in
the two units.
2. The main issues in considering the motion for summary disposition are: (a)
how and by whom should Conclusion of Law Number Seven be interpreted; and (b) “what is
the impact” in Docket 14454 of the Commission’s decision in Docket 2991.
9 3. The Commission’s Supplemental Preliminary Order in Docket 14454 properly
interprets the meaning of the final orders in Dockets 42 and 2991 as a matter of law, and
mandates denial of the Cooperative’s petition for a cease-and-desist order because those earlier
orders authorized “expansion to preexisting customers within the boundaries of their oil-field
units.”4
4. Conclusion of Law Number Seven in Docket 42 authorized SPS to expand its
service to existing customers within each of the two production units.
5. In Docket 2991, the Commission “confirmed” that under Conclusion of Law
Number Seven SPS might lawfully serve Amoco’s and Texaco’s “new and future electric-
service needs in” the two production units.
We may fairly summarize all of the foregoing as follows: (a) the Commission
interpreted Conclusion of Law Number Seven as authorizing the expansion of SPS’s service
within the two oil-production units so long as the expanded service is supplied to pre-1976
customers Texaco and Amoco for use within their respective oil-production units; and (b) this
interpretation is arrived at from the text of Conclusion of Law Number Seven as “confirmed”
by the Commission in its 1981 decision in Docket 2991.
4 Items 1, 2, and 3 are patently conclusions of law although not separately stated nor named as such in the proposal for decision. They are instead buried in the administrative-law judge’s “Discussion” of the case. They are, nevertheless, adopted by the Commission’s final order and must be set forth herein as part of the Commission’s basis for decision. See Tex. Gov’t Code Ann. § 2001.141(a), (b) (West 2000).
10 THE COOPERATIVE’S APPEAL
In its second assignment of error, the Cooperative complains it was erroneously
denied an evidentiary hearing as to the meaning and regulatory effect of Conclusion of Law
Number Seven. We will sustain the point.
The Cooperative was denied the right to adduce evidence on several issues,
including “[t]he details of the background facts surrounding the original certification
proceedings in 1976, including the transcript of the Docket No. 42 proceeding,” and including
“[t]he original intent and meaning of the grandfather provisions of Docket No. 42.” The
Cooperative argues that PURA section 37.155 declares contracts such as that approved and
incorporated in Conclusion of Law Number Seven to be “valid and enforceable” contracts.
Consequently, Texas contract principles apply. See Public Util. Bd. v. Central Power & Light Co.,
587 S.W.2d 782, 787 (Tex. Civ. App.—Corpus Christi 1979, writ ref’d n.r.e.). And because the
Commission itself thrice declared Conclusion of Law Number Seven to be “decidedly
ambiguous,” the correct meaning of Conclusion of Law Number Seven became an issue of fact
provable by evidence.5 See Lenape Res. Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565,
5 Section 2001.051 of the Administrative Procedure Act provides that in a contested case a party is entitled to an opportunity “to respond and to present evidence and argument on each issue involved in the case.” Tex. Gov’t Code Ann. § 2001.051(2) (West 2000). Section 2001.082, on the other hand, provides that “evidence that is irrelevant, immaterial, or unduly repetitious shall be excluded.” Id. § 2001.082. Irrelevant evidence is evidence that does not tend to prove a fact of consequence to the determination of the action. See id. § 2001.081; Tex. R. Evid. 401. The Commission views any evidence regarding the formulation of Conclusion of Law Number Seven to be irrelevant for reasons discussed in the text. This includes any evidence pertaining to the contract approved and adopted in Conclusion of Law Number Seven.
11 574 (Tex. 1996); Hyatt v. Radio Station WLOU, 354 S.W.2d 415, 417 (Tex. Civ. App.—El Paso
1962, no writ).
The Commission replies as follows: the same rules apply to the construction of
agency orders as apply to the interpretation of statutes, and an agency’s interpretation of its own
order is entitled to great weight because a presumption of validity attaches to an agency’s
exercise of its expertise.6 See Railroad Comm’n v. Home Transp. Co., 670 S.W.2d 319, 325 (Tex.
App.—Austin 1984, no writ); Amoco Prod. Co. v. Federal Power Comm’n, 491 F.2d 916, 921
(10th Cir. 1973).
We are not certain of the Commission’s intention underlying the foregoing
argument. The matter of agency “expertise” does not appear to be involved in assigning
meaning to the words of Conclusion of Law Number Seven; nor do any disputed facts appear
to be involved that might require the exercise of agency “expertise.” “[E]xpertness is not a
magic wand which can be waved over the corpus of an agency’s findings to preserve them from
judicial review.” Louis L. Jaffe, Judicial Control of Administrative Action 613 (1965). No brief
has pointed out where or how such “expertise” might be applicable, nor does the record suggest
anything in that regard.
What then of the rules of statutory construction as they may be applicable by
analogy to the order of an administrative agency? The excluded evidence in the present case
included a transcript of the proceedings in Docket 42 and “background facts” showing the
6 The Commission has authority to interpret its own orders pursuant to its power to administer such orders. See Tex. Util. Code Ann. § 14.051(5) (West 2000).
12 context in which Conclusion of Law Number Seven was reached in that docket. Accepting the
Commission’s premise, one might apply the familiar rule of statutory construction requiring,
when necessary, an examination of the circumstances surrounding passage of a statute (or in this
case, issuance of the order containing Conclusion of Law Number Seven), as well as the
historical background of the subject matter, the dispute, and the questions involved therein, all
in an effort to arrive at an objective assessment of the enactor’s intention. See Calvert v. Fort
Worth Nat’l Bank, 356 S.W.2d 918, 921 (Tex. 1962); Texas & N. O. R. Co. v. R. R. Comm’n, 200
S.W.2d 626, 629 (Tex. 1947); Wortham v. Walker, 128 S.W.2d 1138, 1141 (Tex. 1939); Cousins
v. Sovereign Camp, W.O.W., 35 S.W.2d 696, 697 (Tex. 1931). Such an inquiry is particularly
apt in the case of an instrument that is patently or latently ambiguous or uncertain in its meaning
for some other reason, such as a change of conditions. The Commission has never declared
Conclusion of Law Number Seven to be unambiguous.
We may also observe that an administrative agency should find such an inquiry
to be in its own interest. Agreements of the kind underlying and incorporated in Conclusion of
Law Number Seven should be encouraged rather than discouraged. One sure way to discourage
them is to deny them their purported effect or to read into them something that was not within
the parties’ contemplation. See Mitchell Energy Corp. v. Federal Power Comm’n, 519 F.2d 36,
40-41 (5th Cir. 1975); Alfred C. Aman, Jr. & William T. Mayton, Administrative Law § 952 at
279, § 9.53 at 280-87 (1993).
13 The foregoing principles alone require a rejection of the Commission’s argument
as we understand it. We will, however, discuss the matter further in connection with SPS’s
reliance upon res judicata.
SPS contends the Commission correctly decided Docket 14454 summarily
because the common-law doctrine of res judicata, arising from the Commission’s final order in
Docket 2991, barred the Cooperative’s claim in Docket 14454 as a matter of law. See Barr v.
Resolution Trust Corp., 837 S.W.2d 627, 627-31 (Tex. 1992); Al-Jazrawi v. Texas Bd. of Land
Surveying, 719 S.W.2d 670, 671 (Tex. App.—Austin 1986, writ ref’d). In support of its
contention, SPS argues that the intended meaning of Conclusion of Law Number Seven was
fairly litigated in Docket 2991, that the Commission decided in that docket the correct meaning
of that conclusion as a matter of law, and that decision is conclusive in Docket 14454 with
respect to the correct meaning of Conclusion of Law Number Seven.
The doctrine of res judicata is in principle applicable to certain administrative-
agency adjudications but it may not be transferred to the regulatory sphere full-blown or free of
considerations not found in the common-law doctrine. See Restatement (Second) of Judgments,
§ 83, at 263-72 (1982); see, e.g., Al-Jazrawi, 719 S.W.2d at 671; Westheimer Indep. Sch. Dist. v.
Brockette, 567 S.W.2d 780, 787 (Tex. 1978). The doctrine cannot be viewed in isolation from
the administrative process itself. Changing conditions or evolving views of what the public
interest requires may render the doctrine inapplicable, even to the extent of allowing opposite
results on the identical issue in successive adjudications involving the same parties. See, e.g.,
Porter & Dietsch, Inc. v. FTC, 605 F.2d 294, 299-300 (7th Cir. 1979); Churchill Tabernacle v.
14 FCC, 160 F.2d 244, 246 (D.C. Cir. 1947). We believe the case most instructive in the present
dispute is Magnolia Petroleum Co. v. New Process Prod. Co., 104 S.W.2d 1106 (Tex. 1937).
There, the court dealt with the Railroad Commission’s grant of a drilling permit after denying
the permit three years previously, the disputing parties and the location of the proposed wells
being the same. The court declared the agency’s initial denial of a permit, after an adjudicative
hearing in the agency, determined the pertinent private rights and public interest only as of the
date of the agency order and until such time as there occurred a change of conditions. There, as
here, no judicial review of the first agency order had intervened. See Magnolia Petroleum Co.,
104 S.W.2d at 1110-11.
The Cooperative was denied an opportunity to adduce evidence that it contended
would show a material change of conditions since the Commission’s 1981 decision in Docket
2991. As compared to the thirty-six or so wells that existed in 1981, the Cooperative wished to
adduce in Docket 14454 evidence showing the “[d]etails of the more than 600” wells that had
been completed as “consuming facilities” of electric power, and other evidence showing new
construction and improvements, changes in the use of SPS’s distribution lines, service to an
agricultural facility, and acts by SPS amounting to unlawful interference with the Cooperative’s
operations. The Commission, by adopting the proposal for decision, disposed of any necessity
for such proffered evidence by a conclusion of law that all allegations to which that evidence
referred “are simply different aspects” of the Cooperative’s contention that SPS’s grandfathered
service to the oil operators’ units could not be extended to new wells. Why this is so is not
apparent from the record as a matter of law; it appears rather to be simply a naked conclusion
15 of the administrative-law judge adopted by the Commission. Nothing in the record of Docket
14454 purports to explain this conclusion of law, by findings of fact, reasons, or otherwise. Was
the Commission legally bound to state a basis for this conclusion of law? We believe it was.
The Cooperative’s petition alleged facts that in general terms amounted to a
significant change of conditions since 1976 and even since 1981. And the excluded evidence
described in the proposal for decision appears to support at least some of these allegations.
It may be that the Cooperative’s allegations will ultimately be shown to be merely
“different aspects” of the Cooperative’s contention that SPS’s grandfathered service could not
be extended to the new facilities. But that is not evident as a matter of law, as the Commission
held in Docket 14454. And it may be that there has in fact been no material change in
conditions since 1981, but this too is not shown in the record as a matter of law. And it may be
that the thirty-six or so wells that were in dispute in 1981, in Docket 2991, were within the scope
of Conclusion of Law Number Seven, but that does not necessarily mean as a matter of law that
600 wells were also within Conclusion of Law Number Seven, whether from the standpoint of
the public interest or the contracting parties’ understanding in Docket 42. We are not prepared
to conclude that the Commission was wrong in any of these matters, but we do conclude that
the record must show affirmatively that the Commission considered these factors which were
essential to its reliance upon the doctrine of res judicata, given the change of conditions alleged
by the Cooperative.
By failing to supply an explanation of these material matters, the Commission
abused its discretion in summarily denying the Cooperative an opportunity for an evidentiary
16 hearing if res judicata was, indeed, the basis of the agency’s decision.7 See Public Util. Comm’n
v. Gulf States Util. Co., 809 S.W.2d 201, 212 (Tex. 1991); City of El Paso v. El Paso Elec. Co.,
851 S.W.2d 896, 899-901 (Tex. App.—Austin 1993, writ denied). We need not address the
Cooperative’s remaining assignments of error.
Accordingly, we reverse the trial-court judgment and the Commission’s final
order in Docket 14454. We remand the cause to the Commission for proceedings not
inconsistent with our opinion.
John E. Powers, Justice
Before Justices Kidd, Yeakel and Powers *
Reversed and Remanded
Filed: January 11, 2001
Do Not Publish
7 The term “res judicata” does not appear in the proposal for decision nor in the Commission’s final order adopting the proposal for decision. The record as a whole suggests, however, that res judicata is the only possible basis for the agency’s summary disposition of the contested case.
17 * Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).