Who does not remember the Winter Storm of 2021 when a storm came down from the north with freezing temperatures, ice, hail and snow? We all turned up our thermostats and so desperately hoped the electricity would remain on. However, our collective acts overwhelmed what is known as our ERCOT electrical system and those in charge at the PUC knew the only way to prevent a total shut down was to start intentional blackouts around the state, which they did. We all, including this author, froze for at least four days in sub-zero temperatures. Many more susceptible citizens literally died and/or suffered significant bodily harm.
Despite these personal tragedies, the intentional blackout system worked, and the grid did not collapse. However, the officials at ERCOT want more electricity now at the largest quantities possible in order to get the entire electrical grid back to working order. ERCOT had a rule, called a “protocol,” that allowed during emergencies for the cost of a MWh to go from the usual $30 up to $1200 per MWh to give an incentive to our electrical power producers to provide as much electricity as possible.
However, the ERCOT officials concluded that the price was not high enough, so they went to the PUC to get authority to go even higher. The Commissioners of the PUC agreed and decided to set the new level at $9000 per MWh, an unbelievable increase in the cost of electricity. In order to do this, the PUC Commissioners had to issue orders to amend the rule/protocol set at $1200. They issued two orders over two days and informed all of the new limits. All of the electrical producers started charging $9000 per kWh. By the end of the storm, this price level rendered many of the electrical companies who delivered the electricity to our homes to become bankrupt or to have an enormous debt that would have to be paid off in the future by raising their rates of electricity to their customers like you and me. You and I have paid dearly for the decision of the PUC.
As we all would guess, this controversy ended up in a lawsuit, and over the next three years, it finally crawled its way to the Texas Supreme Court with an opinion being issued on June 14, 2024. The Court first held that the PUC Commissioners had in fact substantially complied with the procedures in adopting a new rule or amended rule at the $9000 level. Thus, it was a valid rule.
However, Chief Justice Hecht, the author of the opinion then declared in the boldest terms that the PUC had NOT filed the new rule at the Office of Secretary of State. You would think he would then explain why this failure to file was or was not important. He did not.
He simply concluded that the PUC had substantially complied with enough procedures necessary to make it a valid rule applicable to all the parties and rendered a final decision in favor of the PUC and all the energy producers who received the $4 billion.
However, the law unambiguously makes clear that a rule being valid does not make it legally enforceable. What Chief Justice Hecht did not say is that Tex. Govt Code Section, 2001.036 required that all new and amended rules had to be filed at the office of the Secretary of State and if they were emergency rules, a filing must occur if the PUC desired that it have immediate legal effect upon all of the parties who were subject to them. The law has required this filing for over 49 years!
Thus, with Chief Justice Hecht’s bold declaration that the PUC had NOT filed the new rule at the Secretary of State’s office, the law held it did not have legal effect and the $4 billion that changed hands had to be reimbursed to those that paid it including electrical companies and citizens of this state, like you and me.
Pursuant to the undisputed facts, the Chief Justice admitted the PUC should have been denied their request for the court to uphold the rules, but he simply ignored the law that required it.
Only because the Chief Justice ignored Section 2001.036 and never applied it to the facts, the PUC prevailed in the case when we citizens were entitled to rebates for the increases in our electrical bills.
It was amazing the arrogance of the court to admit they knew the truth, but they were not going to allow the law to get in the way of how they wanted to rule. The court was saying they are not bound by the law, and they will render their “own justice” as they see fit. The rule of law is simply inapplicable.
It appears now we have an imperial Texas Supreme Court that disregards the law as adopted by the Legislature and only applies the part of the laws they believe will cause justice, in their minds, to be done.
If that is not a constitutional crisis in Texas, I am not sure we have a democracy any longer.
So, without question, did not the Texas Judicial Ethics Committee step in and publicly declare the illegal, unethical acts of the court by refusing to feel bound by the law. A complaint was filed with the commission, and they did nothing. The most they could do is run it through a shredder. With facts and law that undisputedly demonstrated a gross ethical and legal violation, they did nothing.
Where in our constitution does it state that the Supreme Court is above the law? If not, who is behind this governmental conspiracy?