Two questions: Who does ERCOT think it is, UIW?

Translation: Does the dubiously named Energy Reliability Council of Texas think it’s the University of the Incarnate Word?

And who does a decision-shy five-member majority of the Texas Supreme Court think it is, Hamlet?  

ERCOT is pursuing a legal strategy that Incarnate Word attempted more than five years ago. It is saying that it can’t be sued because it is a governmental entity while also arguing that it doesn’t have to release emails and other communications under the Texas Freedom of Information Act because it is not a governmental agency. 

The University of the Incarnate Word made those arguments in connection with the off-campus killing of a young man by a UIW campus cop. A grand jury declined to indict the police officer, apparently believing his assertion of self defense. But the young man’s parents sued the university. 

The university fought media requests for documents and for a recording made by the officer’s body camera. The university said it was not subject to the state’s open records law because it was a private institution.

At the same time it argued that it had “sovereign immunity” from lawsuits because the state approved its police department and its officers were certified by a state agency.

ERCOT is making the arguments in connection with its controversial performance in last winter’s freeze-induced near collapse of the state’s energy grid. Billions of dollars of damage was done and at least 151 Texans died, according to state records (an analysis by Buzzfeed puts the number of dead at “four to five times” that figure), as millions lost power for substantial periods of time during subfreezing temperatures. Yet power customers face billions of dollars added to future bills because gas and electricity prices were allowed to rise to outrageous levels — amounts far higher than those subject to the state’s laws against price gouging for virtually any other product.  

ERCOT has argued that it is not subject to the public information law because it is not a government entity. State Attorney General Ken Paxton apparently agrees.

But ERCOT is also facing dozens of lawsuits regarding its performance this winter. Its defense, made in a court filing in April, is that it “will continue to assert that it is entitled to sovereign immunity due to its organization and function as an arm of State government.”

So it’s an “arm of State government” when it comes to being sued, but an “independent” non-profit corporation when it comes to public accountability. 

The strategy didn’t work so well for Incarnate Word. The question of whether it had sovereign immunity bounced up and down the court system for five years until last year when the Texas Supreme Court ruled that it did not. The policeman and its department were sanctioned by the state, the court ruled, but they were under the control of the university’s board. The lawsuit, filed by the parents of the young man who was killed, is pending.

The strategy may be more successful for ERCOT.

Last week the Dallas Morning News reported that ERCOT won an official finding from Paxton’s office that it is not subject to the state’s public information law, thwarting media outlets and others seeking documents relating to the agency’s preparations for and responses to the winter storm. ERCOT is a creation of the Texas Legislature that describes itself as an “independent … membership-based 501(c)(4) nonprofit corporation, governed by a board of directors and subject to oversight by the Public Utility Commission of Texas and the Texas Legislature.”

In 2018 the Dallas Court of Appeals ruled that ERCOT was protected by sovereign immunity in a suit by a Panda Power of Dallas. Somewhat ironically given the catastrophic shortage of power during the winter storm, Panda alleged it suffered $2 billion in damages because it built three power plants based on what it alleged were “false and misleading” predictions of need by ERCOT. 

Panda appealed to the Texas Supreme Court but in March the high court kicked the issue down the road, much to the dismay of four of the court’s nine members. The five members of the majority ruled that because the trial court, following the ruling of the Dallas Court of Appeals, had entered a final judgment dismissing the suit, the matter was closed and the Supreme Court powerless to revive it. 

The minority argued the court should take it up precisely because of the importance of the issue to the public right now.

“The answer to the immunity issue in this case has become perhaps more important to the public than even to the parties,” Chief Justice Nathan Hecht wrote. “The parties want to know. The public wants to know. The court refuses to answer.”

Hecht called the majority’s decision “potentially dangerous,” arguing it could rob the Supreme Court of the power to review appellate court decisions. Appeals courts could simply order trial courts to comply with their rulings quickly, making the issues moot.

The court will presumably have to decide the issue in the dozens of lawsuits against ERCOT already filed, including one by San Antonio’s CPS Energy. But because of the March ruling, millions of dollars in legal fees will likely be racked up to make the issue ripe for the high court. It took five years for the Panda suit to get the non-decision from the Supreme Court. 

The expensive wheels of “justice” will now spin again — funded here by the ratepayers of CPS Energy, which has hired two outside law firms to handle the litigation. Given that ERCOT is funded by electricity providers who pass along their costs, Texan customers will likely ultimately pay ERCOT’S legal fees as well. 

If years from now the court rules that the lawsuits are barred by “sovereign immunity,” the feckless five of the Supreme Court majority will have taken Texans for a costly and needless legal ride. 

Rick Casey

Rick Casey's career spans four decades of award-winning reporting on San Antonio. He previously worked as a metro columnist for the former San Antonio Light and, later, the San Antonio Express-News.