Court of Appeals of Texas, Third District, Austin
Kenneth M. Jasinski, Appellant
Public Utility Commission of Texas and Oncor Electric Delivery Company LLC, Appellees
THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-16-000424, HONORABLE DARLENE BYRNE, JUDGE
Chief Justice Rose, Justices Field and Bourland.
K. Field, Justice.
M. Jasinski, appearing pro se, appeals the trial court's
order affirming an order of the Public Utility Commission
dismissing his complaint regarding tree trimming activities
of Oncor Electric Delivery Company LLC. In three issues
Jasinski argues that the Commission: (1)erred in dismissing
his claim for failure to state a claim for which relief could
be granted; (2)erroneously failed to rule on his proposed
findings of fact and conclusions of law; and (3) erred by
permitting Oncor to implement a "tree clearance distance
rule" without requiring it to be filed as a tariff
change. We will affirm.
a resident of Dallas, filed a complaint with the Commission
after Oncor trimmed a live oak tree located on Jasinski's
property. According to Jasinski, on February 11, 2015, Oncor
"side-trimmed" his live oak tree to provide ten
feet of clearance between the tree's branches and a
distribution line passing through Jasinski's property. At
the time of the trimming, Oncor's Vegetation Management
Report, filed with the Commission as required by Commission
rules, included the following practice related to clearance
between Oncor's conductors and vegetation:
Clearance and Scheduling Approach
Clearances between conductor and vegetation, at the time of
work, is a minimum of seven to ten feet from conductors
energized at 600 volts or more, and three to five feet from
conductors energized at less than 600 volts.
Projects are selected based on circuits with 1) high
vegetation related outages and open wire secondary and 2)
mainline projects based on risks. Projects are scheduled by
circuit for efficiencies of work.
See Oncor Electric Delivery Company LLC's Annual
Vegetation Management Report Pursuant to Substantive Rule
§25.96 (May 1, 2014) at 6 (the 2014 Vegetation
Management Report); see also 16 Tex. Admin. Code
§§ 25.96(e)(1) (Pub. Util. Comm'n of Tex.,
Vegetation Mgmt.) (requiring utility to maintain vegetation
management plan that includes description of utility's
tree pruning methodology, trimming clearances, and scheduling
approach); 25.96(f)(1)(B) (requiring utility to file with
Commission report summarizing vegetation management plan
including trimming clearances and scheduling approach).
According to the 2014 Vegetation Management Report, this
practice conformed to the vegetation management standards set
forth in section 218 of the National Electric Safety Code,
which provides in pertinent part:
1. Vegetation that may damage ungrounded supply conductors
should be pruned or removed. Vegetation management should be
performed as experience has shown necessary.
NOTE 1: Factors to consider in determining the
extent of vegetation management required include, but are not
limited to: line voltage class, species' growth rates and
failure characteristics, right-of-way limitations, the
vegetation's location to the conductors, the potential
combined movement of vegetation and conductors during routine
winds, and sagging of conductors due to elevated temperatures
NOTE 2: It is not practical to prevent all
tree-conductor contacts on overhead lines.
complaint to the Commission, Jasinski alleged that the
side-trimming of the live oak on his property to an
"excessive and unnecessary" ten-foot clearance
distance was contrary to the Public Utility Regulatory Act,
NESC section 218.A.1, Commission policy, standards of
"Good Utility Practice, " the clearance practices
set forth in Oncor's 2014 Vegetation Management Report,
and Oncor's tariff. Specifically, Jasinski alleged that
"[s]aid pruning caused by Oncor was about forty-two
percent (42%) more than needed to satisfy Oncor's
'adequate space' goal stated in Oncor's 2013 Rule
25.96 Report and in Oncor's 2014 Rule 25.96 Report, and
to comport with PURA,  NESC 218.A.1, the Commission's policy,
'Good Utility Practice, ' Oncor's Former
Clearance Rule and its tariff."
2015, Oncor filed its 2015 Vegetation Management Report.
Regarding Oncor's practice related to clearance between
Oncor's conductors and vegetation, the 2015 Report
Trimming Clearance and Scheduling ...