Public Utility Commission of Texas Peter Lake, Chairman Will McAdams, Commissioner Lori Cobos, Commissioner And Jimmy Glotfelty, Commissioner Each in His or Her Official Capacity at the Public Utility Commission of Texas v. AMA Communications, LLC D/B/A AMA TechTel Communications

• Court: Court of Appeals of Texas
• Decided: June 30, 2022
• Docket: 03-21-00597-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00597-CV

Public Utility Commission of Texas; Peter Lake, Chairman; Will McAdams, Commissioner; Lori Cobos, Commissioner; and Jimmy Glotfelty, Commissioner; each in his or her Official Capacity at the Public Utility Commission of Texas, Appellants

v.

AMA Communications, LLC d/b/a AMA TechTel Communications, Appellee

FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-004498, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING

ORDER

PER CURIAM

Appellants, the Public Utility Commission of Texas (PUC); Peter Lake,

Chairman; Will McAdams, Commissioner; Lori Cobos, Commissioner; and Jimmy Glotfelty,

Commissioner, each in his or her Official Capacity, have filed an interlocutory appeal from the

trial court’s November 17 and 18, 2021 respective orders (1) granting the application of appellee

AMA Communications, LLC d/b/a AMA TechTel Communications (AMA) for a temporary

injunction and (2) denying appellants’ plea to the jurisdiction. In its order granting AMA a

temporary injunction, the trial court ordered appellants to pay AMA “the full amount of financial

support that [it] is owed each month under the rate orders [appellants] have executed,” beginning

December 1, 2021.

1 Upon appellants’ November 18, 2021 filing of their notice of interlocutory appeal,

the trial court’s temporary injunction was automatically suspended and superseded pending

resolution of the appeal, see Tex. Civ. Prac. & Rem. Code § 6.001(a); Tex. R. App. P. 24.2(a)(3),

29.1(b), and all proceedings at the trial court were stayed, see Tex. Civ. Prac. & Rem. Code

§ 51.014(b). On November 22, 2021, AMA filed with this Court an emergency motion for a

temporary order pursuant to Texas Rule of Appellate Procedure 29.3 seeking a stay of the

supersedeas effect of appellants’ notice of appeal such that the trial court’s temporary injunction

could remain in place during the pendency of this appeal. See Tex. R. App. P. 29.3. This Court

denied that motion on November 30, 2021.

AMA has filed a renewed motion for a Rule 29.3 temporary order, arguing that

“dire circumstances” have developed since the denial of its last motion and that, without relief,

AMA “will be unable to continue operations, including the provision of telecommunications

service in rural Texas, before this appeal is resolved.” In its renewed motion, AMA contends

that appellants initially refused to pay it more than 70% of the monthly support that the PUC had

by prior final order determined AMA shall receive from the Texas Universal Service Fund

(TUSF) and has recently reduced that amount by another 50%. See Tex. Util. Code §§ 56.021

(establishing fund), .023 (outlining PUC’s duties in administering fund), .026 (requiring PUC

to make prompt and efficient disbursements from fund). AMA attached to its motion the

declaration of its president and a copy of a letter from its lender noting that it is in default on its

loan agreement. Appellants have filed a response to AMA’s motion arguing against the

requested relief. In the underlying lawsuit, AMA sued appellants for their failure to make the

monthly disbursements and for related actions, asserting claims for ultra vires, regulatory

takings, rule challenges under the Administrative Procedure Act, and declaratory relief.

2 After its evidentiary hearing on AMA’s application for temporary injunction, the

trial court found that, without injunctive relief, AMA would suffer irreparable harm and was

likely to succeed on the merits of its claims. It further found that the PUC’s signed rate orders

had established the amount of monthly disbursement to which AMA is entitled and that the

PUC has the funds available in the TUSF to make full disbursements to AMA. It found that

injunctive relief would preserve the last actual, peaceable uncontested status that preceded the

controversy before the court and that AMA was without an adequate remedy at law for

appellants’ failure to make the monthly disbursements.

Pursuant to Rule 29.3, this Court may “make any temporary orders necessary to

preserve the parties’ rights until disposition of the appeal.” Tex. R. App. P. 29.3; see Texas

Educ. Agency v. Houston Indep. Sch. Dist., 609 S.W.3d 569, 573–74 (Tex. App.—Austin 2020)

(order). The relief AMA seeks is an order that the trial court’s temporary injunction remain in

place because if appellants’ actions are not enjoined, it will suffer irreparable harm. The trial

court concluded that AMA made a sufficient showing to establish a probable right to recovery on

its claims and would suffer irreparable harm if appellants were not ordered to continue making

the required disbursements, and in its renewed motion, AMA has demonstrated that irreparable

harm has occurred and continues to occur. Because this Court has inherent power to prevent

irreparable harm to parties properly before us pursuant to our appellate jurisdiction in an

interlocutory appeal, because Rule 29.3 provides a mechanism by which to exercise that

authority, and because we conclude that AMA has demonstrated it has and will continue to suffer

irreparable harm unless we grant its requested relief, we grant its renewed motion. See Texas

Educ. Agency, 609 S.W.3d at 578.

3 Accordingly, we grant AMA’s renewed Rule 29.3 motion for a temporary order

and order that the trial court’s temporary injunction be reinstated to preserve the parties’ rights

until the disposition of this appeal.

It is so ordered on June 30, 2022.

Before Justices Goodwin, Baker, and Triana Justice Goodwin dissenting without opinion