Full opinion text
PER CURIAM. In this original proceeding, relator is TXU Electric Co. and respondents are the Public Utility Commission and its three members. TXU seeks relief from portions of the Commission’s orders requiring TXU to reverse efforts it has undertaken to mitigate its estimated stranded costs as part of the transition to a deregulated, competitive retail market for the sale of electricity in Texas. Six Membees of the Court vote to deny relief for different reasons. Chief Justice Phillips, joined by Justice Enoch and Justice Godbey, would not exercise mandamus jurisdiction because TXU has an adequate remedy at law. Justice BakeR, joined by Justice RodRiguez, would hold that the relief TXU seeks is against the Commission, over which the Court has no original mandamus jurisdiction. Justice BristeR would hold that the portions of the Commission’s orders of which TXU complains do not constitute a clear abuse of discretion. Justice Hecht, joined by Justice Owen and Justice Jefferson, would grant relief. The petition for writ of mandamus is denied. Chief Justice PHILLIPS filed a concurring opinion in which Justice ENOCH and Justice GODBEY (Assigned) joined. Justice BAKER concurred in the judgment and filed an opinion in which Justice RODRIGUEZ joined. Justice BRISTER (Assigned) concurred in the judgment and filed an opinion. Justice HECHT filed a dissenting opinion in which Justice OWEN and Justice JEFFERSON joined.
Chief Justice PHILLIPS filed a concurring opinion in which Justice ENOCH and Justice GODBEY (Assigned) join. Mandamus is an extraordinary remedy available “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Walker v. Packer, 827 S.W.2d 883, 840 (Tex.1992). To obtain mandamus relief, the relator must demonstrate a clear abuse of discretion for which there is no adequate remedy at law. Id. at 839-40. A party establishes that no adequate remedy at law exists by showing that the party is in real danger of permanently losing its substantial rights. Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 306 (Tex. 1994). Thus, mandamus will not issue absent “compelling circumstances.” Tilton v. Marshall, 926 S.W.2d 672, 681 (Tex. 1996). On the record before us, TXU has not shown compelling circumstances for our intervention because it has not established that no adequate remedy is available in the district court. Therefore, I would deny the petition for writ of mandamus. I In 1999, the Legislature amended the Public Utilities Regulatory Act (PURA) to establish competition in the retail market for electricity beginning January 1, 2002, and to “protect the public interest during the transition” to competition. Tex. Util. Code § 39.001(a); City of Corpus Christi v. Pub. Util. Com’n, 51 S.W.3d 231, 237 (Tex.2001). Under deregulation, the incumbent utilities were required to separate their bundled business into three separate enterprises — a generating company, a transmission and distribution company, and a retail electric provider. Tex. Util. Code § 39.051(b). After January 1, 2002, the generating company will own and operate the generating plants, the transmission and delivery company will deliver the electricity over transmission and distribution lines, and the retail electric provider will sell electricity to end-use customers and provide customer service. Because the generating companies and retail electric providers must use the existing power lines to move electricity from the plant to the retail customer’s home or business, the transmission and delivery companies will remain regulated monopolies. The generating companies and the retail electric providers will operate in what are intended to be competitive, unregulated markets. Underpinning the Legislature’s decision to restructure the electric power industry was its finding that regulation was no longer warranted, except for regulating transmission of electricity and overseeing the recovery of stranded costs. Although “stranded costs” have a precise, technical definition under chapter 39 of PURA, Tex. Util.Code § 39.251(7), we have generally described them “as the portion of the book value of a utility’s generation assets that is projected to be unrecovered through rates that are based on market prices.” Corpus Christi, 51 S.W.3d at 238-39. The largest part of stranded costs are attributable to investments in nuclear power plants. Id. at 238. The Legislature, agreeing that incumbent utilities should not have to bear these stranded costs, devised a three-phase program for such utilities to recover these costs in the new, unregulated market. Under the first phase, ending on December 31, 2001, the Commission froze retail electric rates. Utilities identified as having stranded costs have been allowed to mitigate them through (1) shifting depreciation from the transmission and delivery assets to the generating assets, Tex. Util. Code § 39.256, and (2) keeping earnings in excess of the allowed rate of return to reduce book value. Tex. Util.Code §§ 39.254. Under the second phase, from January 1, 2002, to December 31, 2003, the Commission is to consider remaining stranded costs in setting the “competition transition charge” or “CTC.” Tex. Util. Code § 39.201(b)(3). The CTC is intended to cover the utilities’ stranded costs through collection from every customer taking power over the utility’s transmission and delivery system, thus making up the difference between a generating plant’s book value and its market value. Under the final phase, actual stranded costs are to be calculated in a “true-up” proceeding beginning January 2004. This “true-up” is based on market valuations of the utilities’ generation assets. Tex. Util. Code §§ 39.201(0, 39.262. If stranded costs remain, the Commission can extend the CTC collection period or increase the charge. Tex. Util.Code § 39.201(Z). Conversely, if mitigation efforts and the CTC have overcompensated the utility, the Commission is authorized to make other adjustments. Tex. Util.Code § 39.201(O(l)-(4). Consistent with the statutory scheme, on March 31, 2000, the Commission instituted separate contested case proceedings to consider applications filed by each of the nine incumbent electric utilities in Texas. Because the nine dockets shared many of the same legal and policy issues, the Commission concluded that a supplemental generic proceeding would be the most efficient method for resolving these common issues. Common issues resolved in the generic docket were then applied in each individual docket. To fulfill the statute’s mandates, the Commission segmented each individual docket into four phases. In Phase I, the Commission conducted a hearing on the business separation plan through which the utility proposed to divide itself into a power generation company, a transmission and delivery company, and an affiliated retail electric provider. In Phase II, the Commission conducted a hearing to project the amount of the utility’s stranded costs when retail competition begins on January 1, 2002. Tex. Util.Code § 39.201(g). In Phases III and IV, the Commission conducted hearings to determine the actual rates the transmission and delivery company could charge retailers. The Legislature provided that those utilities the Commission identified as having potentially stranded costs in an April 1998 Report to the Texas Senate Interim Committee on Electric Utility Restructuring (1998 ECOM Report) should use mitigation tools to reduce these potential costs. Tex. Util.Code § 39.254. In this report, the Commission estimated that TXU had potentially two billion dollars in stranded costs, created primarily by TXU’s investment in the Comanche Peak nuclear plant. Based on this estimate, TXU began mitigation efforts by shifting depreciation from transmission and delivery assets to generating assets and by applying excess earnings to reduce book value. See Tex. Util. Code §§ 39.254, 39.256. Before setting rates the transmission and delivery company could charge in 2002,' the Commission updated the 1998 ECOM Report in 2001 and concluded that market forces, particularly the surge in natural gas prices, had dramatically impacted TXU’s projected stranded costs. Under the new update, the Commission estimated that TXU now had negative stranded costs in excess of two billion dollars. In other words, TXU’s investment in the Comanche Peak nuclear plant, once a liability, had now become profitable because the cost of generating electricity from natural gas plants exceeded that of generating electricity from nuclear plants. Consumers and retail electric providers, who had intervened in the proceeding to determine the cost of service rates for the unbundled transmission and delivery companies, argued that because TXU’s and certain other utilities’ updated stranded cost estimates were negative, the Commission should make adjustments for excess mitigation costs when setting transmission and delivery charges. TXU argued that the Commission had no authority to revise its stranded cost estimates because the statute did not authorize the Commission to update the 1998 ECOM Report except for CTC setting purposes or to revisit the mitigation issue until the true-up proceeding in 2004. The Commission disagreed; and on November 9, 2000, it determined in the generic docket that utilities with substantial negative stranded costs estimates should stop redirecting depreciation expense and applying annual excess earnings to reduce stranded generation assets. On June 5, 2001, the Commission applied this ruling to TXU in an interim order issued in TXU’s individual docket. The Commission found that TXU should discontinue mitigation because its updated ECOM analysis reflected that TXU presently had a negative $2.7 billion in stranded costs. Because TXU had already redirected $798 million in depreciation expense, the Commission instructed TXU to reassign the expense back to transmission and distribution assets. Similarly, because TXU had previously applied $888 million in excess earnings to generation assets, the Commission further directed that those excess earnings be returned to ratepayers as credits on monthly bills over a seven-year period. TXU promptly petitioned this Court to mandamus the Commission to rescind its June 5 order and subsequently sought similar relief from the Travis County district court as well. TXU alleges that by disregarding the statutory scheme, the Commission will cause competition to develop “differently” than the Legislature intended, and that this difference will cause irreparable harm because it will impact the ability of TXU’s affiliated retail electric provider to compete during deregulation’s first years. The district court has not acted on TXU’s petition. While the mandamus proceeding was pending here, the Commission issued its final order in TXU’s docket on October 3, 2001. This order addressed numerous issues raised during the four phases of the proceeding, and it also incorporated the June 5 ruling on excess mitigation. TXU sued the Commission in Travis County district court on December 17, 2001, for judicial review of the final order. See Tex. Util.Code § 15.001; Tex. Gov’t Code § § 2001.145, 2001.171. II I agree with Justice Hecht and Justice BRIsteR that this Court has jurisdiction to mandamus the individual members of the Public Utility Commission. But I differ with Justice Hecht’s conclusion that we should exercise that authority in this case, and I do not reach the question of whether the Commission has abused its discretion, which is the basis of Justice Brister’s opinion. In my opinion, TXU has not shown that relief is unavailable in the district court. The issues TXU raises in its appeal to the district court are the same that it presents here. Justice Hecht argues that even if this is so, the district court cannot prevent irreparable harm because it cannot act before the second phase of deregulation begins on January 1, 2002. But on this record, I cannot determine that irreparable harm will befall TXU if we do not act. Admittedly, mandamus is a more expeditious remedy than appeal, but the delay inherent in the appellate process is ordinarily not sufficient reason to justify us to act. Walker, 827 S.W.2d at 842. In its harm analysis, TXU urges that the Commission’s erroneous actions will cause competition to unfold in a manner different from that contemplated by the Legislature with unknown but irreparable consequences. Thus, TXU argues that we should mandamus the Commissioners to preserve the integrity of the Legislature’s plan for deregulation. Our mandamus authority, however, is not a general, supervisory power. See Tex. Gov’t Code § 22.002(a); Pope v. Ferguson, 445 S.W.2d 950, 953 (Tex.1969). Our exercise of the power “is justified only when parties stand to lose their substantial rights,” Walker, 827 S.W.2d at 842, that is, rights personal to the party seeking relief. If mandamus were justified whenever a government official or a lower court misread a statute, mandamus would supplant appeal as the normal avenue for statutory interpretation. Moreover, TXU itself has never, in any brief, motion or argument, asked this Court to expedite this proceeding or act to meet any prescribed deadline. More importantly, if TXU can demonstrate immediate, irreparable harm, the district court is authorized to grant an immediate stay in TXU’s appeal. See Tex. Util.Code § 15.04. While any stay the district court issues may itself be stayed if the Commission appeals the order, see Pub. Util. Comm’n v. Coalition of Cities for Affordable Utility Rates, 776 S.W.2d 221, 222 (Tex.App.-Austin 1989, no writ), the appellate court can itself grant a stay if necessary to preserve the subject matter of the appeal and protect its own jurisdiction. See City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 975 (1931); Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2, 4 (Tex.Civ.App.-San Antonio 1974, writ refd n.r.e.). The lower courts thus have full authority to review and correct any errors that TXU alleges and proves and to protect it from irreparable harm during that process. Justice Hecht argues at some length that this case is similar to Perry v. Del Rio, 67 S.W.3d 85 (Tex.2001). But in Perry, two district courts each asserted jurisdiction over the same parties in the same dispute, working against a deadline imposed by a three-judge federal court. Only this Court could timely determine which of the two courts had the dominant jurisdiction to proceed because the deadline simply did not leave room for normal appellate remedies. Here, only one district court has jurisdiction, and it has full authority to resolve TXU’s complaints. Justice Hecht claims that I “ignore[] precedent” because we have granted mandamus before, in discovery disputes and other matters. And he points to our holding in CSR, Ltd. v. Link, 925 S.W.2d 591 (Tex.1996), that “exceptional circumstances may make a right of appeal inadequate.” In all these cases, however, we granted conditional mandamus against a trial court that had already ruled. Here, of course, the trial court has jurisdiction but has not yet made a decision. Nor is this case similar to three related cases we recently considered involving sec-uritization bonds, a legislatively-created financing mechanism allowing an electric utility to issue low-cost bonds to retire certain debts known as “regulatory assets.” TXU Electric Co. v. Pub. Util. Comm’n, 51 S.W.3d 275 (Tex.2001). The deregulation statute expressly provided for an interlocutory appeal of these decisions to district court, and it directed that both the district court and this Court should determine the appeals “as expeditiously as possible with lawful precedence over other matters.” Tex. Util.Code § 39.303(f). In all other cases, however, PURA requires that each Commission proceeding under section 39 be conducted as a contested case proceeding under the APE. Tex. Util. Code § 39.003. On no other issue, including the one before us today, did the Legislature provide for an expedited review of any aspect of the deregulation process. I would not circumvent the Legislature’s scheme for orderly review when an adequate legal remedy is available. For the foregoing reasons, and without addressing whether the Commission has abused its discretion, I would deny Relator’s petition for writ of mandamus. . Justice Hecht questions why I do not address Reliant Energy’s Petition for Mandamus, suggesting that it articulates reasons for expedited action in this case. It does not. Reliant did file a motion to expedite its own Petition for Mandamus by consolidating it with TXU’s because the two petitions addressed the same issues. Reliant’s Motion to Consolidate and Expedite asserts that “[i]t is in the public interest to address and resolve those issues in an expedited and consolidated fashion as they concern both Reliant and TXU,” but it does not ask this Court to act on either petition by a certain date.
Justice BAKER, joined by Justice RODRIGUEZ, concurring in the judgment only. Over ninety-eight years ago, this Court held that it did not have jurisdiction to issue mandamus against a board of state officers. See Betts v. Johnson, 96 Tex. 360, 73 S.W. 4, 5 (1903). Since that decision, this Court has, with one exception, adhered to this holding. See Superior Oil Co. v. Sadler, 458 S.W.2d 55, 56 (Tex.1970); Givens v. Woodward, 145 Tex. 150, 196 S.W.2d 456, 456 (1946); McLarty v. Bolton, 144 Tex. 490, 191 S.W.2d 850, 850 (1946); McFall v. State Bd. of Educ., 101 Tex. 572, 110 S.W. 739, 740 (1908); see also Texas Liquor Control Bd. v. Cont’l Distilling Sales Co., 199 S.W.2d 1009, 1013 (Tex.Civ.App.-Dallas 1947, no writ); Herring v. Houston Nat. Exch. Bank, 241 S.W. 534, 540 (Tex.Civ.App.-Galveston 1922, no writ). But see State v. Thomas, 766 S.W.2d 217, 220 (Tex.1989). In Betts, the Court construed a predecessor statute to section 22.002(a) of the Texas Government Code. Betts, 73 S.W. at 4. Today, despite this precedent, the Court assumes jurisdiction when it does not exist to reach the merits of TXU’s petition. Because I believe this Court does not have jurisdiction to mandamus a state board or commission, I can only concur in the Court’s judgment that TXU is not entitled to mandamus relief. I. PROCEDURAL BACKGROUND In March 2000, nine electric utilities (including TXU) each filed an application requesting the Public Utilities Commission to approve unbundled costs of service rates under section 39.201 of the Public Utilities Regulation Act (PURA). Because the nine cases raised similar issues, the PUC created Docket No. 22344, a “generic-docket” proceeding, to consider the threshold issues that would impact all nine cases. In this proceeding, the PUC issued several orders that identified allowable modifications to the PUC’s excess costs over market (ECOM) model. Under the generic-docket orders, the PUC reran the ECOM model to determine the utilities’ estimated stranded costs. And, in certain cases, including TXU’s, the model generated a negative number for the utility’s estimated stranded costs. In October 2000, because of these negative estimates, the administrative law judge issued an order certifying issues to the PUC. Specifically, the PUC had to determine whether the law contemplates a utility having negative excess cost over market and whether the PUC has authority to consider and “remedy” excess mitigation. The parties filed briefs on both issues, which the PUC considered in an open meeting beginning on November 1, 2000. On November 14, 2000, the PUC entered its order on the certified issues and held that it did have the authority — and the obligation — to remedy excess mitigation. On November 29, 2000, TXU filed its motion for rehearing with respect to the PUC’s certified-issues order as it affected TXU. On November 30, 2000, the PUC declined to consider TXU’s motion. On December 29, 2000, TXU sued the PUC in a Travis County District Court, seeking judicial review of the PUC’s certified-issues order. TXU asserted that the PUC erred in entering this order because it prejudices TXU’s substantial rights. TXU asked the district court to reverse the PUC’s order and remand to the PUC for further proceedings. This suit remains pending. On June 1, 2001, the PUC entered an “Interim Order” noting TXU’s overrecov-ery of stranded costs under the new ECOM model and thus ordering TXU to reverse its stranded-costs mitigation. On June 20, 2001, TXU filed its petition for writ of mandamus with this Court. The Court requested a response and full briefing. Tex.R.App. P. 52.8(b)(1),(2). Subsequently, the Court set the petition for oral argument on December 12, 2001. TXU asserts that the PUC abused its discretion by contravening statutory procedures when it entered the interim order against TXU. TXU names the PUC, and its three Commissioners individually, as respondents. However, TXU only requests relief against the PUC. The parties argued the case before the Court on December 12, 2001. A week after oral argument, on December 17, 2001, TXU filed a second suit involving the same orders in another Travis County District Court, and again made the PUC the only defendant. The second suit also only asked for relief against the PUC in the form of a reversal of the Commission’s order. Notably, the issues that TXU raises here are the same issues it raises for judicial review in both suits now pending in different Travis County District Courts. II. THE THRESHOLD ISSUE The preliminary issue the Court should consider is whether section 22.002(a) of the Texas Government Code confers original jurisdiction upon this Court to grant mandamus relief against the PUC in this case. TXU argues that it does and relies on State v. Thomas, 766 S.W.2d at 217, and Chemical Bank & Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.1963), to support that argument. III. APPLICABLE LAW A. Section 22.002(a) The Texas Government Code provides: The supreme court or a justice of the supreme court may issue writs of proce-dendo and certiorari and all writ of quo warranto and mandamus agreeable to the principles of law regulating those writs, against a district judge, a court of appeals or a justice of a court of appeals, or any officer of state government except the governor, the court of criminal appeals, or a judge of the court of criminal appeals. Tex. Gov’t Code § 22.002(a). This provision has its genesis in an 1892 statute that granted this Court power to mandamus an officer of state government, excepting the governor. See Act of April 13, 1892, 22nd Leg., 1st C.S., ch. 14, 1892 Tex. Gen. Laws 385. After 1892, the Legislature amended this statute several times before codifying it in our Government Code in 1985. See Tex.Rev.Civ. Stats, arts. 946, 949, 4861 (Vernon 1895); Tex.Rev.Civ. Stats, arts. 1526, 1526,1528, 1529, 5732 (Vernon 1911); Act of Mar. 28, 1913, 33d Leg., R.S., ch. 55, § 1, 1913 Tex. Gen. Laws 108; Act of Mar. 15, 1917, 35th Leg., R.S., ch. 75, § 1, 1917 Tex. Gen. Laws 141; Act of Feb. 14, 1930, 41st Leg., 4th C.S., ch. 4, § 1, 1930 Tex. Gen. Laws 4; Act of June 8, 1981, 67th Leg, R.S., ch. 291, § 19, 1981 Tex. Gen. Laws 773; Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1724. All the predecessors to section 22.002(a) used similar language relevant to the issue here. That is, the statutes, in relevant part, provided that this Court has original jurisdiction to issue writs of mandamus against an “officer of state government.” B. Case law The first occasion this Court had to determine whether it could exercise its original mandamus jurisdiction over a state board or commission was in 1903. See Betts, 73 S.W. at 4. In that case, Betts moved for mandamus to compel Johnson and others, as members of the Board of Eclectic Medical Examiners for the State of Texas, to issue Betts a license to practice medicine. The Court held it did not have jurisdiction to grant a writ of mandamus in such a case. Betts, 73 S.W. at 4. The Court determined that “officer of state government” does not encompass all state officers for purposes of this Court’s original mandamus jurisdiction. Rather, the Court concluded, the Legislature intended that jurisdiction extend only to state officers who are the “heads of state departments.” Betts, 73 S.W. at 4. After defining the limited scope of the term “state officer,” the Court noted that Betts actually sought mandamus against a board of officers and not against a single officer. It explained that if the statute’s purpose was to empower the Court to issue the writ against a board of officers as well as against a single officer, the statute’s language would have been “ ‘any officer or board of officers of the state government.’ ” Betts, 73 S.W. at 5 (emphasis added). Consequently, the Court denied the writ. Since Betts, the Court has not wavered from its view that its original mandamus jurisdiction does not extend to all state officers — or, more importantly, to boards or commissions of state officers. See, e.g., Superior Oil Co., 458 S.W.2d at 56 (holding this Court may not issue mandamus against state boards and commissions) (citations omitted). As recently as 1999, this Court reaffirmed that holding. See In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 776 (Tex.1999) (citing Superior Oil Co. and Betts); see also A & T Consultants, Inc. v. Sharp, 904 S.W.2d 668, 684 (Tex.1995); (Hecht, J., dissenting) (observing that “any officer of state government” under section 22.022(a) does not include a board of officers and, therefore, this Court lacks jurisdiction to mandamus such a board) (citing Betts). IV. ANALYSIS The PUC is a Texas administrative agency the Legislature created under the PURA. See Tex. Util.Code § 12.001. The PUC is comprised of three commissioners whom the Governor appoints with the senate’s advice and consent. See Tex. Util. Code § 12.051. As a legislatively created entity, the PUC can only exercise the power that the law, in clear and express statutory language, confers upon it. See Tex Util.Code § 12.001; Key W. Life Ins. Co. v. State Bd. of Ins., 168 Tex. 11, 350 S.W.2d 839, 848 (1961); Railroad Comm’n v. Rowan Oil Co., 152 Tex. 439, 259 S.W.2d 173, 176 (1953). The PURA provides that the PUC has “the general power to regulate and supervise the business of each public utility within its jurisdiction and to do anything specifically designated or implied by [statute] that is necessary and convenient to the exercise of that power and jurisdiction.” Tex. Util.Code § 14.001. However, the PURA provisions that describe the PUC’s powers authorize the PUC to act as an entity and do not give the individual commissioners any separate powers. See, e.g., Tex. Util.Code §§ 14.001-14.057, 32.001, 39.103, 39.201. Thus, the PURA does not confer any powers upon an individual commissioner so that he or she has separate and distinct duties from the other commissioners or so that he or she may act alone. TXU recognizes that the PUC is a distinct entity of the state and that it acts only through its three commissioners. • Following the PUC’s November 14, 2000 certified-issues order, TXU sued the PUC as the only defendant when it sought judicial review of that order in the Travis County District Court. • In that petition, TXU recognizes the PUC as an entity and requests relief only against the PUC in the form of reversing the PUC order. • TXU did not join the individual commissioners as parties in that suit. In its mandamus petition, TXU complains about the same certified issues, and the PUC interim order against TXU based on those certified issues, as it does in its district court suit. • Here, though, TXU names the three PUC members as additional, individual respondents. • But, as in the district court cases, TXU seeks no relief against any individual commissioner and requests relief only against the PUC. • Further, in its brief on the merits, TXU likewise asserts that the issue is whether the PUC abused its discretion when it entered the orders about reversing stranded-cost mitigation. • And, during oral argument, TXU admitted that it only sought relief against the PUC and that it named the PUC commissioners individually only because TXU contends they are “state officers.” Additionally, a week after oral argument in this case, TXU filed a second suit in another Travis County District Court complaining about the PUC’s final order as it affected TXU. • In this second suit, TXU sued the PUC as the only defendant, and did not join the individual Commissioners as parties. • In this second suit, TXU again recognizes the PUC as a entity and requests relief only against the PUC in the form of reversing the PUC order. TXU has consistently sought relief only against the PUC in every proceeding it has initiated. It is clear that TXU recognizes the PUC as a separate entity and as the only party against whom it can secure relief. Consequently, it is also clear, that by naming the individual Commissioners as respondents in this proceeding, TXU did so purely to circumvent this Court’s holdings that section 22.002(a) does not confer original jurisdiction for this Court to mandamus state boards or commissions. In its reply brief on the merits, TXU more precisely argues that this Court has original mandamus jurisdiction here because this Court issued mandamus against the individual commissioners in Thomas, 766 S.W.2d at 217. TXU contends that the State’s attempts to distinguish Thomas fail. Further, TXU urges that Thomas is not an “aberration” as the State contends. Thomas is in fact an aberration. Moreover, it was wrongly decided. In Thomas, the State, as an electricity consumer, filed a petition for writ of mandamus against Dennis Thomas, Jo Campbell, and Mart Greytok, the PUC’s chairman and commissioners, respectively. The State sought mandamus to compel the individual commissioners to perform their duty to permit the Attorney General to intervene in the underlying administrative proceeding. The State asserted jurisdiction under section 22.002(a) of the Government Code. Though the record indicates that the PUC was not a respondent in Thomas, the Court disregarded this omission in its opinion. Instead, the Court concluded that the Public Utility Commission could not constitutionally deny the Attorney General’s intervention on behalf of consumer state agencies. Thomas, 766 S.W.2d at 219. And then, without discussing its mandamus jurisdiction, it granted the writ and ordered the “Public Utility Commission” — not the individual commissioners — to vacate its order. Thomas, 766 S.W.2d at 220. The Court’s judgment likewise ordered mandamus against the “Public Utility Commission.” Accordingly, TXU’s assertion that the Thomas Court issued mandamus against the individual commissioners is incorrect. Moreover, Thomas is an aberration for three reasons: (1) Thomas failed to question the State’s assertion that the Court had jurisdiction under section 22.002(a); (2) the Court did not grant relief against the only three respondents the State named in the petition; and (3) the Court improperly granted relief against the PUC, an entity not a party to the case. Furthermore, for reasons unknown, the Court completely ignored the fact that it did not háve original mandamus jurisdiction over the PUC in the first instance. See Superior Oil Co., 458 S.W.2d at 56, Betts, 73 S.W. at 5; see also A & T Consultants, 904 S.W.2d at 684 (Hecht, J., dissenting). TXU also relies on Chemical Bank, 369 S.W.2d at 427, to support its jurisdictional argument in this case. However, Chemical Bank is readily distinguishable. In that case, Chemical Bank sought mandamus from this Court to compel Falkner, as Banking Commissioner of Texas, to issue Chemical Bank a certifícate of authority to operate in Harris County, Texas. Two banks in Harris County, who opposed issuing a charter to Chemical Bank, intervened in the mandamus proceeding. The intervenors argued that the Court had no jurisdiction to issue mandamus against the Banking Commissioner, because he was not a state officer within article 1733’s meaning. Chemical Bank, 369 S.W.2d at 429 (citing language in article 1733, a predecessor to section 22.002(a)). The Court concluded that Falker, as the Banking Commissioner, is an officer of state government within the statute’s meaning. The Court pointed out that although Falkner was a Finance Commission employee, this did not prevent Falk-ner from being an officer of the state government. The Court observed that Falkner was far more than just a Finance Commission employee, because the many powers and duties the Legislature conferred upon him were not subject to the Finance Commission’s control. Chemical Bank, 369 S.W.2d at 430. For example, the Court observed, although Falkner’s duties included presiding over Finance Commission meetings, he did not vote unless to break a tie. And he had other powers, such as issuing a charter, that the Finance Commission did npt control. Chemical Bank, 369 S.W.2d at 430-31. The Court concluded that the Legislature gave the Banking Commissioner, individually, the authority to carry out the general administration of the State’s banking affairs. Thus, the Court held that Falkner was performing sovereign functions of the government for the protection and benefit of the public and, as such, he was a state officer as article 1733 contemplated. Chemical Bank, 369 S.W.2d at 430. Chemical Bank involved a single state government officer and not a board or commission. Further, the state officer subject to mandamus in Chemical Bank had statutory powers and duties apart from those of the commission for which he worked. Chemical Bank, 369 S.W.2d at 430. It is thus distinguishable from this case. In sum, this case is not any different from Betts and its progeny which recognize that, under section 22.022(a) and its predecessor statutes, this Court does not have original jurisdiction to mandamus a state commission or board. Accordingly, the Court does not have original mandamus jurisdiction over the PUC and should dismiss TXU’s petition for want of jurisdiction. V. THE COURT’S WRITINGS Seven Justices agree that the Court has jurisdiction to review TXU’s petition. Of the seven Justices who agree we have jurisdiction, four would deny TXU relief, but for different reasons. See 67 S.W.3d at 132 (Phillips, C.J., concurring); 67 S.W.3d at 145 (Brister, J., concurring). Three Justices not only find we have jurisdiction but also would grant relief. Because I believe that the Court has no jurisdiction as a threshold matter, I believe it is not only appropriate but necessary that I comment on Justice Heeht’s and Chief Justice Phillips’ writings. A. Justice Hecht’s Dissent Justice Hecht dedicates about thirty percent of his writing to attempt to explain why he believes this Court has original jurisdiction to mandamus the PUC commissioners. Ironically, Justice Hecht required only a sentence or two in more recent cases to hold that mandamus jurisdiction does not exist against state boards or commissions. See In Re Nolo Press, 991 S.W.2d at 776; A & T Consultants, 904 S.W.2d at 684 (Hecht, J., dissenting). But to avoid this and other precedent and to reach his desired result, Justice Hecht purposely misstates the threshold issue here. My position is that the threshold issue the Court must determine is whether we have original jurisdiction under section 22.002(a) to mandamus the Public Utility Commission. And TXU’s naming the individual commissioners as respondents here is nothing more than a ruse — apparently an effective one given the Court’s holding today — to divert this Court’s attention from this issue. But Justice Hecht intentionally mischar-acterizes the jurisdiction issue to raise it as a strawman so he can then knock it down, thereby allowing him to conclude that “we have jurisdiction to mandamus the members of the Commission as TXU requests.” 67 S.W.3d at 150 (Hecht, J., dissenting) (emphasis added). Justice Hecht relies on four cases to argue that my view is inconsistent with Texas law. See McFall, 110 S.W. at 739; Middlekauff v. State Banking Bd., 111 Tex. 561, 242 S.W. 442 (1922); Thomas, 766 S.W.2d at 217; State Banking Bd. v. Winters State Bank, 13 S.W.2d 391 (Tex.Civ.App.-Austin 1929, writ ref'd). However, these cases are not inconsistent with my real jurisdiction argument. In McFall, the relator requested this Court to issue mandamus against certain individuals — the Governor, the Comptroller, and the Secretary of State — who constituted the State Board of Education. McFall, 110 S.W. at 739. Because the Court did not have original mandamus jurisdiction over the Governor, the Court concluded that it could not grant relief. Without further elaboration, the Court only stated that “[t]he writ must go against all or none.... ” McFall, 110 S.W. at 740. The Court then noted that, in any event, it could not grant the relief requested because the relator asked the Court to set aside the Board’s order and to make a different decision. McFall, 110 S.W. at 740. Because we cannot issue mandamus to compel a tribunal to decide an issue in a certain way, the Court suggested that the relator seek mandamus relief in the trial court against a lesser school official who had authority to carry out the board’s order. McFall, 110 S.W. at 740. Although the relator in McFall sought relief against individuals, the Court recognized it could not — so it did not — grant relief against the board. Moreover, the Court recognized it could not issue mandamus to compel an entity to make a certain decision. Consequently, although McFall is factually distinguishable, its holding is consistent with my view that this Court does not have original jurisdiction under section 22.022(a) to mandamus the PUC to change its rulings in an administrative order. Likewise, Middlekauff does not support Justice Hecht’s contention that my jurisdiction analysis is contrary to Texas law. The relator in Middlekauff sought mandamus relief against several individuals and entities — the State Banking Board, the Commissioner of Insurance and Banking, the State Treasurer, and the Attorney General — to compel payment of monies from the State’s guaranty fund. Middle-kauff, 242 S.W. at 442. It is unclear against whom the Court issued mandamus, because the opinion only states that the suit would “be dismissed as to the respondents no longer in office, and that a writ of mandamus be issued against the remaining respondents.... ” Middlekauff, 242 S.W. at 443. But at the time, the State Banking Board comprised the Attorney General, the Commissioner of Insurance and Banking, and the Treasurer. Act of May 12, 1909, 31st Leg., 2d C.S., ch. 15, § 2, 1909 Tex. Gen. Laws 406, 406. These are the same individuals against whom the relator sought mandamus relief. Accordingly, Middlekauff is distinguishable from this case and, therefore, is not contrary to my jurisdiction argument. Middlekauff, 242 S.W. at 443. Winters State Bank is also distinguishable. 13 S.W.2d at 391. In Winters State Bank, the court of appeals held that, although the banking commissioner did have a duty to pay funds as alleged, the State Banking Board had not waived its sovereign immunity from a suit to recover monies from the guaranty fund. Winters State Bank, 13 S.W.2d at 392. But the court of appeals opined that, because “it is the clear ministerial duty of the state banking board and the banking commissioner to return [the funds],” the plaintiff could seek mandamus from this Court. Winters State Bank, 13 S.W.2d at 393. For this proposition, the court of appeals cited a predecessor statute to section 22.002 (c), the provision conferring original mandamus jurisdiction on this Court to compel officers of the State’s executive departments to perform ministerial duties. Winters State Bank, 13 S.W.2d at 393. Although the court of appeals also cited Middlekauff, its reliance on a different jurisdictional statute, and its focus on the individual banking commissioner’s ministerial duties, shows it is distinguishable and does not control the outcome here. Next, I need not dwell further on why Thomas is an aberration and was wrongly decided. But Justice Hecht pontificates that, in Thomas, the Court’s granting relief against the PUC rather than the individual commissioners was “a technical flaw immaterial to the scope of the Court’s original mandamus jurisdiction.” He also opines that “[t]he Court’s mistake in the rendition of judgment does not detract from its decision to grant relief against the state officers it clearly determined were within its original mandamus jurisdiction.” 67 S.W.3d at 156 (Hecht, J., dissenting). Such reasoning borders on the ludicrous. Justice Hecht’s cursory conclusion that our issuing mandamus against an entity not a party to the suit is a mere “technical flaw” flouts a bedrock principle in Texas jurisprudence. No court, including this one, can grant relief against a person or entity that is not a party to the litigation. See, e.g., Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995). Moreover, the Thomas Court never discussed its jurisdiction. Indeed, even Justice Hecht, who dissented in that case, recognized that “[t]he Court assumes, without discussion, the availability of mandamus in this case.” Thomas, 766 S.W.2d at 225 (Hecht, J., dissenting). Thus, contrary to Justice Hecht’s cavalier contention, it is not so “clear” that the Court determined the commissioners were within its original mandamus jurisdiction. See 67 S.W.3d at 158 (Hecht, J., dissenting). Furthermore, Justice Hecht accuses me of unfairly taking two sentences from TXU’s petition and brief to conclude that “TXU is not entitled to relief against the individual commissioners.” 67 S.W.3d at 158 (Hecht, J., dissenting). Justice Hecht deliberately misstates my jurisdiction argument when he urges that my position is we cannot issue mandamus relief against the individual commissioners. The record demonstrates that TXU’s trial court pleadings and briefs in this Court all only seek relief against the PUC as an entity. Not once does TXU pray for relief against the individual commissioners. This is because only the PUC, as an entity, entered the order TXU complains about. And only the PUC as an entity, and not an individual commissioner, has authority to remedy any wrong in that order. Consequently, TXU names the individual commissioners as respondents here only in an attempt to invoke this Court’s mandamus jurisdiction and to avoid the well-established procedures our Legislature has created for judicial review of administrative orders. Finally, Justice Hecht fails to refute my argument that this case will provide the basis for parties to seek mandamus from this Court against state boards and commissions whenever they allege that an administrative order, such as the one here, is erroneous. Justice Hecht contends that “the demise of the ordinary process for judicial review of ordinary administrative decisions” will not happen because the Court knows how to “turn away ordinary cases.” 67 S.W.3d at 158 (Hecht, J., dissenting) (emphasis added). But Justice Hecht’s reasoning begs the question and presupposes that our mandamus jurisdiction depends on whether a case is “ordinary.” This is absolutely not true under Texas law. In an original proceeding, the threshold issue is whether this Court has mandamus jurisdiction under the parameters Texas’s Legislature and citizens have defined. See Tex. Gov’t Code § 22.002; Tex. Const, art. V, § 3. Then, if jurisdiction exists, only then may the Court consider the case’s nature — extraordinary or otherwise — as part of the Court’s merits inquiry for determining whether it should grant relief. See Canadian Helicopters Ltd. v. Wittig, 876 S.W.2d 304, 309 (Tex. 1994) (stating, in reviewing a trial court order denying a special appearance, that appeal may be inadequate and thus mandamus relief appropriate if the Court determines the case presents “extraordinary” circumstances). Thus, Justice Hecht’s response does not disprove my position that, after this case, parties can simply name individual members of a state board or commission to obtain relief that Texas’s Legislature and citizens have made available only in the trial courts or through the ordinary administrative judicial review process. See Tex. Gov’t Code §§ 2001.171-.178; Tex. Util.Code § 15.001; Tex. Gov’t Code § 24.007; Tex. Const, art. V, § 8. In sum, Justice Hecht’s jurisdiction analysis purposely ignores the real issue here-whether this Court has original mandamus jurisdiction over the PUC. The answer is “no” because we have steadfastly held that this Court’s jurisdiction under section 22.002(a) does not extend to state boards or commissions. And, it logically follows that TXU cannot confer jurisdiction on this Court simply by naming the individual PUC commissioners as respondents. B. Chief Justice Phillips’ ConcüRRence In rejecting TXU’s request for mandamus relief, Chief Justice Phillips frames TXU’s issue as whether “we should mandamus the Commissioners to preserve the integrity of the Legislature’s plan for deregulation.” 67 S.W.3d at 135 (Phillips, C.J., concurring). But this is not the relief TXU requests. As the record shows, in this mandamus proceeding, although TXU named the commissioners individually, TXU has not asked for any relief against an individual commissioner. TXU requests relief only against the Public Utility Commission as a legislatively created entity- I do not disagree with the premise that in appropriate circumstances, this Court does have original jurisdiction to grant mandamus relief against “any officer of state government except the Governor.” Tex. Gov’t Code § 22.002(a). But that power does not encompass the power to mandamus a board or commission as an entity because that power lies not in our Court but in a Travis County District Court. See Tex. Const, art. V, § 8; Tex. Gov’t Code § 24.007; see also In Re Nolo Press, 991 S.W.2d at 776; A & T Consultants, Inc., 904 S.W.2d at 684 (Hecht, J., dissenting); Superior Oil Co., 458 S.W.2d at 56; Betts, 73 S.W. at 5. Ignoring this Court’s precedent that we do not have jurisdiction to mandamus boards or commissions, and assuming jurisdiction when we have none, affects not only the case we decide today, but the course of administrative law proceedings in the future. Chief Justice Phillips’ opinion alludes to this problem when he states: “If mandamus were justified whenever a government official or a lower court misread a statute, mandamus would supplant appeal as a normal avenue for statutory interpretation.” 67 S.W.3d at 135 (Phillips, C.J., concurring). It seems to me that the real import of the Court’s decision today is what will happen in future administrative proceedings when a party is dissatisfied with a board or commission order. That party will not only file a petition for judicial review in a Travis County District Court, but will also file a petition for mandamus in this Court. And the party can rely on this case to do so. I refer the Court to what happened after this Court created a common law tort cause of action for an insurer’s breach of its duty of good faith and fair dealing. See Arnold, v. National County Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.1987). After Arnold, every lawsuit by an insured against an insurer in Texas almost always included a bad-faith allegation, at least every one a competent lawyer filed. See State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 454 (Tex.1997) (Hecht, J., dissenting). Opening the door for this Court to mandamus state boards or commissions, with the lure that a party may achieve a quick fix, in all probability will dramatically increase the number of such mandamus petitions filed directly in this Court. And it will thus supplant the appellate process already in place as a normal avenue for relief from a board or commission order. Accordingly, continuing to adhere to precedent, and denying TXU’s petition for want of jurisdiction will reinforce and reaffirm the legislatively adopted appellate process for determining disputes involving administrative boards, commissions, and agencies. VI. CONCLUSION Today, the Court overturns ninety-eight years of precedent holding that section 22.002(a) does not confer original jurisdiction on this Court to mandamus state boards or commissions. I am convinced that we do not have jurisdiction to entertain this petition, and the Court should dismiss it for want of jurisdiction. Because the Court decides otherwise, I concur in the Court’s judgment only to the extent that it determines TXU is not entitled to mandamus relief. . Justice Hecht’s dissent is the only writing that discusses the jurisdiction issue. I presume, therefore, that the other writers adopt his entire jurisdiction argument sub silentio.
Justice BRISTER, concurring. Mandamus should be granted “only to correct a clear abuse of discretion or the violation of a legal duty when there is no other adequate remedy at law.” I agree with Justice Hecht there is no adequate legal remedy; the difficulty of the question presented is exceeded only by its importance, and there is no telling what effect judicial intervention or delay may have. But because I can find no abuse of discretion or violation of a duty imposed by law-certainly none that is clear — I agree with Chief Justice Phillips that mandamus should be denied. The facts not contested in this proceeding bear repeating. During the last two years while electric rates were frozen, TXU retained almost $1.7 billion in excess revenues that otherwise would have been refunded to consumers. The Legislature authorized this retention to help TXU recover stranded costs, although in hindsight it now appears TXU did not have any. TXU enters competition with the opposite of stranded costs — its power generation assets will be worth almost $3 billion more than their book value. If nothing is done to remedy this excess until 2004, competition will be stifled. These findings by the PUC may be wrong, but for purposes of this mandamus proceeding we must take them as true. Whether the Legislature foresaw this situation when drafting the statute is unclear, but one thing is certain- — it made no specific provision for it. This is not a case, as TXU argues, in which the Legislature prescribed a plan that the PUC refuses to follow. As shown below, not one of the statutory provisions on which the parties rely tells the PUC what to do in this situation. As a result, TXU asserts the PUC can do nothing, at least not for several years. But state agencies have never been strictly limited to specific statutory provisions. If legislators could foresee every contingency, there would be little need for agencies. Because they cannot, agencies also have whatever implied powers are reasonably necessary to fulfill their regulatory duties. In the Public Utility Regulatory Act (PURA), the Legislature directed the PUC to deregulate the electric industry in a way that encourages competition. Given its factual findings and this legislative directive, the PUC must do something. Because all parties implicitly agree the statute is ambiguous, and the PUC’s interpretation is just as reasonable as any other, no clear legal violation has been shown. Section 39.25⅛ TXU relies on two sections of the statute. First, it argues PURA section 39.254 gives it a right — indeed a duty — to mitigate the stranded costs it had in 1998. That is not what the section says: This subchapter provides a number of tools to an electric utility to mitigate stranded costs. Each electric utility that was reported by the commission to have positive “excess costs over market” (ECOM), denoted as the “base case” for the amount of stranded costs before full retail competition in 2002 with respect to its Texas jurisdiction, in the April 1998 Report to the Texas Senate Interim Committee on Electric Utility Restructuring entitled “Potentially Strandable Investment (ECOM) Report: 1998 Update,” must use these tools to reduce the net book value of, otherwise referred to as “accelerate” the cost recovery of, its stranded costs each year. Any positive difference under the report required by Section 39.257(b) shall be applied to the net book value of generation assets. The reference in this section to the 1998 report limits only who may use the chapter’s tools. Nothing in the section freezes stranded costs at 1998 levels. When the Legislature intended to freeze utility figures at 1998 levels elsewhere in the statute, it did so expressly. It did not do so here. It is undisputed the 1998 report listed TXU as having stranded costs at that time. So applying section 39.254 to this case, the operative second sentence requires TXU to accelerate recovery of “its stranded costs each year.” The ambiguity is in these last five words-which stranded costs? Those that appeared to exist in 1998 or those that appear to exist now? The PUC chose to use current estimates, and that is certainly the more reasonable construction. There is no reason to require accelerated recovery of stranded costs from previous years that no longer exist. Once its stranded costs were reduced to zero, TXU could not continue mitigation simply because it made more money that way. TXU’s counsel conceded at oral argument that if TXU had sold its nuclear power plant in 1999 at book value, it could not continue recovering stranded costs under section 39.254. The same rule should apply when stranded costs disappear not due to a sale but to a rise in gas prices. Nevertheless, TXU has continued to recover stranded costs in years when, according to the PUC, it had none. Section 39.255 of the statute allows a utility “that does not have stranded costs described in Section 39.254” to use excess revenues to improve transmission, distribution, or air quality facilities. TXU has used its excess revenues for none of these. As a result, section 39.255 requires TXU to return these funds to consumers. That is just what the PUC order does. TXU argues the Legislature intended to freeze estimated stranded costs at 1998 levels (even though the statute never says so) because after the true-up proceeding in 2004 they will become “actual” rather than “estimated.” But the true-up is likely to require just as many educated guesses as earlier estimates. Nuclear plants (the main source of stranded costs) rarely swap hands, and never in an open market. In lieu of an objective market price, the plants will be valued at the true-up using stock prices and anticipated income streams. But stock prices reflect many factors other than the auction-value of the plants. And it will be impossible to tell whether income stream estimates are accurate until decades from now when the last kilowatt is sold. The Legislature certainly had the power to provide a cut-off date in 2004, after which all calculations would be treated as final. But that merely guarantees they are final; it cannot guarantee they are accurate. The statute does not freeze stranded cost estimates at 1998 levels. It requires the PUC to update stranded cost estimates now, and nowhere requires it to ignore the results. In a recent case involving the same statute, the same parties, and the same question — whether the PUC should use updated figures when the statute was unclear — this Court deferred to the Commission. To be consistent, the Court must do the same here. Section 89.201 Second, TXU argues the PUC has taken steps it has no power to take — at least not yet. For reasons both statutory and equitable, TXU dares not argue it can simply keep several billion dollars as a windfall. Instead, it points out that PURA section 39.201(() allows the PUC to take the steps it does here (reversing redirected depreciation and returning excess revenues to consumers by lowering rates) after the true-up proceeding some years from now. Because of this express provision, TXU infers a legislative intent to prohibit their use any earlier. But the Legislature did provide for some rate adjustment in the current proceedings based on updated stranded cost estimates. PURA section 39.201(g) allows the PUC to include a competition transition charge in 2002 rates based on current estimates of stranded costs. TXU argues that, because the PUC’s adjustment is a credit to consumers rather than a charge, it has improperly read a “negative competition transition charge” into the statute. But TXU makes the same inference in its own reading of the statute, without saying so. TXU says section 39.201(i) allows the PUC to remedy overrecovery at the true-up, but that section only applies if “the competition transition charge is larger than is needed to recover any remaining stranded costs.” It is undisputed TXU’s rates will include no competition transition charge, and it will have no “remaining stranded costs” if it has overrecovered them. How then can this section apply, if the charge that is “larger than is needed” is zero? Only by reading the statute to imply a negative competition transition charge. There is nothing else zero can be “larger than.” TXU’s argument shows all parties agree we must infer somewhere in chapter 39 the equivalent of a negative competition transition charge. The PUC’s order has the effect of doing do so in section 39.201(g); TXU would do so in section 39.201(i). There is no reason why the former is ultra vires if the latter is not. Section 89.262(a) The PUC relies on two other sections of the statute, both of which mandate general duties without providing specific means. First, it argues PURA section 39.262(a) absolutely prohibits any overrecovery of stranded costs: An electric utility, together with its affiliated retail electric provider and its affiliated transmission and distribution utility, may not be permitted to overrecover stranded costs through the procedures established by this section or through the application of the measures provided by the other sections of this chapter. TXU argues this section applies only to the true-up proceeding in 2004. But in the last clause of the rule, the Legislature said just the opposite — the section also applies to “the measures provided by the other sections of this chapter,” including the current proceedings. TXU points to the location of this provision in a section titled “True Up Proceeding.” The Legislature has categorically rejected such reasoning: “the heading of a ... section does not limit or expand the meaning of a statute.” And the Legislature’s location of provisions in this statute cannot be conclusive (at least not contrary to the express words) because it is not always consistent. The body of section 39.262(a) says it applies to all parts of chapter 39. Contrary to human anatomy, in statutory construction what’s in the body governs, not what’s in the head. The PUC found TXU overrecovered stranded costs, and there is no denying it did so “through the application of the measures provided by the other sections of this chapter” (specifically sections 39.254 and 39.256). Because the statute says this “may not be permitted,” it is hard to argue the statute prohibits the PUC from doing anything about it. Section 39.001 Second, the PUC relies on PURA section 39.001(b)(1), in which the Legislature requires it to implement deregulation in a way “that encourages full and fair competition among all providers of electricity.” The PUC found that doing nothing until 2004 might crush competition just as it starts. This is because TXU’s overrecov-ery threatens to cancel a three-year advantage the Legislature provided for new competitors. Until 2005, the Legislature set a floor for TXU’s retail rates and designated it the “price to beat.” By reversing overrecovery of stranded costs, the PUC’s order pushes down transmission rates until then, and makes it easier for new competitors to do exactly what the price’s nam