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February 17th, 2023:

Last chance to file Winter Storm Uri lawsuits

The two year anniversary of the big freeze of 2021 is upon us, and the statute of limitations for civil actions in this sort of thing is two years, so you know what that means.

When Cherrilyn Nedd left her uncomfortably cold Summerwood home during the February 2021 winter storm to stay with her in-laws — who had a generator — she never expected that she would return to find the house ruined. She left the faucets dripping and her cabinets open. Hurricanes worried her, not freezes.

But a hissing noise greeted Nedd, 53, when she and her husband came back the next day to check on their house. Water spewed from a broken pipe in the collapsed ceiling, flooding every room on the first floor — their bedroom, the kitchen, the dining room and the living room.

“What is going on?” Nedd asked herself, in shock, stepping through the water.

The couple shut off the water to the house and swept out as much as they could. They would spend nearly a year and some $90,000 fixing the home, but they would never get back the ruined photos of a family cruise and their nephew as a baby; the computer equipment Nedd used for her consulting work was destroyed.

Lawyers representing storm victims like Nedd are working to file the final lawsuits related to the disaster as its two-year anniversary arrives this week — and the two-year statute of limitations for filing suit begins to expire. Thousands are accusing power companies, distribution companies, electric grid operators and others of failing to prepare properly for it, creating a catastrophe that caused property damage, countless injuries and hundreds of deaths. One expert estimated the cost of the freeze was as high as $300 billion.

[…]

Nedd and others see the lawsuits as another way to force change. The defendants would likely need to see that it costs more to fail than to do what’s needed to keep the power on, said Greg Cox, a plaintiffs’ liaison counsel. The various lawsuits are being directed to one judge in Harris County who will handle all of them.

The plaintiffs include a person whose house caught fire when power was restored, another who had both feet amputated after getting frostbite and a disabled person whose ceiling collapsed on him while he was in bed, Cox said.

“This catastrophe was not caused by an act of God, but instead was caused by intentional decisions by individual Defendants made both before and during Winter Storm Uri that were known to other Defendants and caused multiple operational failures which combined to cause the failure of the ERCOT grid,” one lawsuit states.

The story notes the so-far feeble efforts to enact reform and the big legal question of whether ERCOT can be sued. Some number of lawsuits will not survive if the answer to that is no. More from the Chron:

This week’s anniversary of the crippling storm — blamed in the deaths of more than 200 and which left millions of Texans without power, heat and in some cases water — means that the two-year legal deadline for filing related lawsuits is about to take effect.

The result is that lawyers representing more than 1,500 Texans and businesses have filed more than 80 wrongful death, personal injury and property damage lawsuits against more than 360 energy companies, insurance companies and the Electric Reliability Council of Texas, the state’s grid manager, since Thursday. Dozens more lawsuits are expected to be filed in Texas courts this week. The deadline depends on the date of the injury to the plaintiff.

The new lawsuits will be combined with the 230 cases lodged in 20 counties across Texas. Those cases, which include more than 1,500 individuals and businesses, have been consolidated into one multidistrict litigation docket in Harris County for the purpose of case management. The plaintiffs seek billions of dollars in damages.

[…]

But the individual cases represent just a slice of the legal disputes involving Texas energy companies. A couple dozen power companies have sued ERCOT and the Texas Public Utility Commission challenging their decision to increase the wholesale price of electricity by 650 percent to $9,000 per megawatt-hour. A decision could come this week.

Two other cases pending before the Texas Supreme Court challenge ERCOT’s claim that it is immune from civil lawsuits. A decision on that point is expected this spring.

Meanwhile, three energy companies — Brazos Electric Coop, Just Energy and Griddy — filed for corporate bankruptcy and restructuring.

“This litigation is massive, unlike anything we have ever experienced in Texas,” CenterPoint Energy Executive Vice President Jason Ryan said. CenterPoint is one of the companies being sued.

“What happened during those four to five days in February 2021 was the largest transfer of wealth in Texas energy history,” Ryan said. “The legal issues surrounding Winter Storm Uri are incredibly complex. Billions and billions of dollars are at stake.”

Scores of Texas electric companies asked a Houston appeals court Friday to dismiss the cases against them, saying the claims against them are without legal merit, would “upend the state’s electricity markets” and would “allow for ‘ruinous’ liability for entities that don’t contract with or deliver electricity to consumers.”

“This litigation is as unprecedented as the 2021 winter storm that spawned it,” lawyers for the power generators, such as Dallas-based Luminant and Houston-based NRG, argued in legal documents filed last week. “The stakes are exceedingly high. If permitted to proceed, this litigation will upend the state’s electricity markets, stretch Texas negligence and nuisance law beyond recognition, and make the state a national outlier.”

See here, here, and here for some background on the bankruptcies and the lawsuits related to them. The expectation is that the cases before the appeals court will be allowed to proceed, according to the story. We’re going to have this litigation for a long time. I don’t know how much of that wealth will be transferred back, but it sure needs to be a lot.

Harris County votes to sue Hegar again

Phony Defunding Claims II: Electric Boogaloo.

Harris County Commissioners Court on Thursday voted to sue Texas Comptroller Glenn Hegar‘s office in response to his comments accusing the county of defunding law enforcement.

Hegar’s claim is a repeat of a fight that already played out between the comptroller and Harris County last August.

“They were wrong back when they tried this the first time — the comptroller and his allies — and they’re wrong again now,” County Judge Lina Hidalgo said before the court met in executive session Thursday.

Commissioners Court convened the special meeting to decide on a response to Hegar’s claim. In a 4-1 vote, the court authorized County Attorney Christian Menefee to pursue a lawsuit against the comptroller’s office. Precinct 3 Commissioner Tom Ramsey, the lone Republican on the court, voted against the measure.

In a statement, Menefee confirmed his office will file a lawsuit against Hegar.

“Once again, Comptroller Hegar has abused his authority,” the county attorney said. “His math is wrong. His application of state law is wrong. There’s no explanation for it — he’s just flat wrong. If Hegar’s goal was to make headlines while insulting the basic intelligence of Harris County residents, I guess he achieved that. But we don’t plan to let him abuse his power. We’ll see him in court.”

[…]

The debate over law-enforcement funding in Harris County stems from the county’s decision to shift its fiscal year and budgeting schedule to start in October instead of March.

In 2022, the county passed a shortened seven-month budget that was in effect until the new schedule began in October. That short fiscal year has made it difficult to make year-to-year funding comparisons, and has resulted in the county and the comptroller’s office using different methods to analyze whether the constable’s funding has increased or decreased.

Under Hegar’s calculations, Heap’s “annualized” budget would have been about $48.9 million over 12 months — nearly $2.3 million more than the $46.7 million figure calculated by the county.

Hidalgo said Hegar came to an incorrect conclusion by dividing Harris County’s 2022 short fiscal year budget by seven months and multiplying that number by 12 to get the annualized budget. Instead, Hidalgo said, the comptroller should have calculated on the basis of pay periods rather than the number of months. That would require dividing the short fiscal year by 16 pay periods and multiplying that by 26 to cover the whole year, she said.

“We have 26-pay-period accounting and Comptroller Hegar should know that,” the judge said.

See here for the background. If the facts as stated above are accurate, then this really is another case of political math being used in place of, well, math. Which is what the Chron editorial board concluded a few days ago. No matter how you get there, bullshit still walks. The Press has more.

AG argues for separating that San Antonio criminal justice reform proposition into multiple questions

Not a surprise, but an aggressive position to take.

Attorney General Ken Paxton’s office is urging the Texas Supreme Court to side with opponents of a proposed charter amendment that seeks to decriminalize marijuana and abortion, as well as enact a host of other police reforms.

Solicitor General Judd Stone submitted a letter to the court Wednesday calling the proposal a “grab-bag of provisions” that “flagrantly violates” a state law prohibiting multi-subject charter amendments.

Stone urged the court to grant a petition filed by the anti-abortion group Texas Alliance for Life Inc. (TAL) requesting that the city reject the proposed ballot language, and instead require a vote on each provision individually.

“While the substance of this proposed charter amendment conflicts with multiple substantive provisions of state law, this mandamus proceeding concerns a procedural problem: the charter amendment plainly violates Texas law’s longstanding prohibition on municipal charter amendments that ‘contain more than one subject,’” Stone wrote.

[…]

City Attorney Andy Segovia told reporters last week he believed most of the charter amendments’ provisions were at odds with state law and therefore unenforceable by the city even if they’re approved by voters.

Stone’s letter agreed with that assessment and accused San Antonio officials of “abuse[ing] their discretion by certifying and including this charter amendment on the ballot.”

In a written response to TAL’s petition Tuesday, Segovia defended his decision to place the amendment on the ballot as written because city officials “plausibly read the proposed charter amendment language to encompass only ‘one subject’ as required by statute.”

Segovia added that opponents should challenge the validity of the amendment after the election, not before.

Stone’s letter disagreed, and asked the Texas Supreme Court to take swift action against the proposal in its entirety. He suggesting the court has long favored stopping such charter amendments before they’re voted on, something that’s still possible if it can prevent San Antonio from including it on the ballot this week.

“When there is an opportunity to correct a ballot before the election, waiting to address the issue through a post-election contest and, potentially another election, is not an adequate remedy,” Stone wrote. “Because respondents can correct the ballot now, [TAL’s] mandamus is appropriate.”

See here for the background. I still think, based on past history, that SCOTx would prefer to not get involved at this time, but I’m somewhat less confident of that now. Both sides of this argument are defensible, so it really is a question of whether SCOTx wants to step in now or just wait for the inevitable lawsuit later. For sure, if this passes it will be a quick matter before they have to rule on a temporary restraining order one way or the other about enforcement. Breaking it up into its components means there will be multiple lawsuits instead of one. I don’t know what they’ll do, but as I said before, we’ll surely find out quickly. San Antonio City Council approved it for the ballot as is, which was also as expected. Now we wait to see what if anything SCOTx does. The Current has more.

Dispatches from Dallas, February 17 edition

Note: this is the second edition of the Dallas-area news roundup conducted by my friend Ginger. Issue 1 was last Friday. We got a lot of positive response to that and I definitely like it, so on we go. The title is taken from the email Ginger sent me, so we’ll give that a try as the feature name. Let us know what you think. Thanks!

This week’s DFW news is mostly about the suburbs: Southlake, Carrolton & Farmer’s Branch, and Arlington are featured trouble spots. Also, I’ve found Archive.ph, which archives web pages and may be useful for reviewing articles on the Dallas Morning News or the Fort Worth Star-Telegram. If you can’t get through to an article I’ve linked, I may have archived it for you.