In February 2021, Winter Storm Uri caused record electricity demand and severe shortages, and the Electric Reliability Council of Texas (ERCOT) declared a Level 3 Emergency, its highest, and ordered the transmission and distribution utilities to "load shed," meaning cut power to some customers; the emergency lasted four days.¹ The plaintiffs allege that the utilities promised to rotate outages but did not, cut power to generators and natural-gas production facilities despite a warning nearly a decade earlier, had no plan for load shedding in a severe storm, kept inadequate lists of critical customers, kept too much load on "Under Frequency Load Shed" circuits that can be shut off only as a last resort, and misled customers by downplaying the situation; several residents died.² The utilities are Oncor, AEP Texas, and CenterPoint entities, each bound by a tariff that includes pro forma provisions prescribed by the Public Utility Commission.³

Thousands of plaintiffs sued participants in the electricity market, and the cases were transferred to a multidistrict-litigation pretrial court, which on Rule 91a motions dismissed the claims against retail electric providers, gas producers, and ERCOT, dismissed the tortious-interference and civil-conspiracy claims against the utilities and generators, and left the negligence, gross-negligence, and nuisance claims against the utilities.¹ The utilities sought mandamus in the Fourteenth Court of Appeals, which conditionally granted partial relief, ordering dismissal of the negligence, negligent-nuisance, and strict-liability nuisance claims but allowing the gross-negligence and intentional-nuisance claims to proceed.² The utilities then petitioned this Court, which heard argument on February 19, 2025, and decided the case on June 27, 2025.³ The generators' separate mandamus proceeding is pending and not before the Court.⁴

Original petition for writ of mandamus from the Fourteenth Court of Appeals after denial of a Rule 91a motion in multidistrict litigation; argued February 19, 2025, and decided June 27, 2025.⁵

The utilities frame four issues: whether the gross-negligence claim should be dismissed because they owe no common-law duty in the circumstances pleaded or because the plaintiffs did not plead facts supporting gross negligence; whether the intentional-nuisance claim fails because they did not create a nuisance by shedding load in response to ERCOT's orders; alternatively, whether the tariffs' force majeure provision bars both claims; and whether they lack an adequate remedy by appeal given more than 200 suits and 15,000 plaintiffs in the multidistrict litigation.¹ The plaintiffs frame the question as whether the trial court abused its discretion in denying the Rule 91a motions when pleadings must be taken as true and construed liberally.² The Court decided only whether the pleadings sufficiently allege intentional nuisance and gross negligence, and did not reach the duty and force majeure issues.³

Mandamus is proper when the trial court clearly abused its discretion and the relator has no adequate remedy by appeal, and there is no adequate remedy when a trial court abuses its discretion in denying a Rule 91a motion, particularly where mandamus would decide the fate of hundreds of suits.¹ In deciding a Rule 91a motion the Court construes the allegations liberally in the plaintiffs' favor, considers only the pleading of the cause of action and permitted exhibits, and requires essential factual allegations sufficient to support a judgment if proven.²

Whether the pleadings state a gross-negligence claim.

Relators (utilities): Gross negligence requires a duty, and no court has imposed a common-law duty on utilities to deliver electricity to particular customers for any duration or to warn of outages when ERCOT orders them to shed load without delay to prevent a grid collapse; in any event the plaintiffs do not plead facts meeting the two-prong test for gross negligence.¹ In reply they argue that the plaintiffs sidestep the duty issue and ignore their own pleaded allegations, including charts showing that load shedding was ordered to prevent grid collapse.²

Real parties in interest (plaintiffs): The utilities owe a duty to exercise reasonable diligence in supplying power and not to degrade a reliable network, the tariffs do not immunize gross negligence or intentional misconduct, and the plaintiffs sue not for obeying load-shed orders but for conduct ERCOT did not order, such as creating part of the shortage, misinforming customers, and leaving non-preferred customers without power longer than promised.³ They add that the pleadings cite governmental reports and investigative reporting and satisfy notice pleading, and that under the mandamus standard the utilities cannot show the trial court clearly abused its discretion.⁴

Whether the pleadings state an intentional-nuisance claim.

Relators (utilities): A nuisance is a condition like smoke, gases, or odors that interferes with the use and enjoyment of land; here the condition was cold air, which came from the weather, not from the utilities, who at most carried out ERCOT's orders.⁵

Real parties in interest (plaintiffs): Nuisance refers to the legal injury, the interference with use and enjoyment, and not to the utilities' wrongful act.⁶

Force majeure. The utilities argued in the alternative that the pro forma tariff's force majeure provision bars both claims; the Court did not reach this.⁷

The utilities argued that the case raises important legal questions with statewide impact, namely whether regulated utilities face tort liability when they follow their regulator's command to interrupt service to prevent a grid collapse.¹ The plaintiffs responded that the utilities ignore the court of appeals' decision, rely on assertions of fact contrary to the pleadings, and debate issues not before the Court.² The Court noted that mandamus would determine the fate of hundreds of suits by thousands of plaintiffs.³

• Conscious indifference. Asked what facts show the culpable state of mind, the real parties' counsel said the petition alleges the utilities knowingly and on purpose preferred some neighborhoods over others. (Oral Argument, 0:27:18)
• No animus theory. Asked for a theory on how the utilities chose whose power to cut, the real parties' counsel said they have no theory of animus toward a particular person. (Oral Argument, 0:30:30)
• PUC jurisdiction. Asked about exclusive PUC jurisdiction, the real parties' counsel agreed there is none, citing two 2021 decisions of this Court involving the same utilities. (Oral Argument, 0:17:35)
• Chaparral. Asked whether the Chaparral line gives the PUC exclusive jurisdiction, the utilities' counsel said not on this issue, because plaintiffs pleaded only a common-law duty. (Oral Argument, 0:13:44)
• Dismissed claims. Asked about the dismissed claims for tortious interference, conspiracy, and negligence, the real parties' counsel said they were dismissed without a final judgment and confirmed they are conceded. (Oral Argument, 0:20:44)
• Tariff and gross negligence. The utilities' counsel said the tariff preserves liability for gross negligence, but the PUC cannot make common-law determinations, so the issue is whether Texas law imposes a tort duty. (Oral Argument, 0:02:10)

• Entergy Texas, Inc. filed an amicus curiae brief on November 12, 2024.
• Texas Civil Justice League filed an amicus curiae letter brief on November 8, 2024.
• Edison Electric Institute filed an amicus curiae letter on December 13, 2024.
• Texans for Lawsuit Reform filed an amicus curiae brief on December 14, 2024.

Holding

The plaintiffs' pleadings do not, and as a matter of law cannot, allege that the utilities "created" or "maintained" a nuisance, so the intentional-nuisance claims must be dismissed with prejudice; the pleadings also do not sufficiently allege gross negligence because they do not account for the utilities' legal obligation to follow ERCOT's orders and guidelines, but the plaintiffs must have an opportunity to replead that claim.¹

Reasoning

Intentional nuisance. A defendant can be liable for intentional nuisance if it intentionally created or maintained a condition that substantially interferes with the use and enjoyment of land, and the Court's cases recognize liability where the defendant is a source of the nuisance, not where it simply failed to protect against one.² The alleged nuisance here is prolonged freezing temperatures, and the allegations do not suggest that the utilities created, exacerbated, or affirmatively maintained them; the plaintiffs complain that the utilities failed to respond to and mitigate the harm, which is not a basis for intentional nuisance.³

Gross negligence. Gross negligence has an objective component (an extreme degree of risk) and a subjective one (actual awareness of the risk but conscious indifference to others' rights, safety, or welfare).⁴ The Court summarized the core allegations, which it called serious, but held that standing alone they do not support an inference of gross negligence.⁵ For the initial response, utilities must follow ERCOT's load-shed orders "without delay" during a Level 3 Emergency, so the plaintiffs alleged no facts suggesting they were not doing their best in those time-sensitive circumstances.⁶ The Court acknowledged that the failure to plan and later conduct might be grossly negligent, given ERCOT's anticipation of extreme weather, but held that the plaintiffs had not alleged conscious indifference because the utilities were legally obligated to operate in compliance with ERCOT guidelines, which have the force of law under Utilities Code section 39.151(j).⁷ Following Marsillo, if a defendant's acts were plausibly required by applicable guidelines and it followed them, a presumption arises that it was not consciously indifferent; the plaintiffs made no effort to allege that the utilities could have acted differently while still complying with those guidelines.⁸ The Court emphasized that plaintiffs need not plead around every requirement that might constrain a defendant, but they must allege that the utilities could have reduced the injuries while complying with legal requirements and chose not to, showing conscious indifference.⁹

Remedy. Because mandamus is discretionary and controlled by equitable principles, and the Court was clarifying the law of conscious indifference, the plaintiffs should be allowed to replead the gross-negligence claims.¹⁰

Disposition

The Court conditionally granted mandamus relief and ordered the trial court to vacate its order denying the Rule 91a motion, to dismiss the intentional-nuisance claims with prejudice, and to allow the plaintiffs to replead their gross-negligence claims; the writ will issue only if the trial court fails to comply.¹¹

Vote Breakdown

Majority Opinion by Justice Lehrmann

Joined by Blacklock, C.J., and Boyd, Busby, Devine, Huddle, and Sullivan, JJ.

Did Not Participate

Bland and Young, JJ.