The 15th Court of Appeals has upheld a Travis County district court order granting pleas to the jurisdiction filed by the PUC and ERCOT in an electricity wholesalers challenge to ERCOT’s grid reliability protocols.
Aspire Power Ventures, LP v. Public Utility Commission of Texas, Electric Reliability Council of Texas, Thomas Gleeson, Lori Cobos, Jimmy Glotfelty, Kathleen Jackson, and Courtney Hjaltman (No. 15-24-00118-CV; March 26, 2026) arose from a dispute between a wholesale buyer and seller of electricity and the PUC over ERCOT’s Contingency Reserve Service (ECRS). ERCOT established this entity “‘to restore or maintain’ a balanced grid ‘[i]n response to significant depletion of [Responsive Reserve Service],’ ‘[a]s a backup Regulation Service,’ and ‘to avoid getting into or during an Energy Emergency Alert.’” Aspire challenged ECRS on the basis that it “unnecessarily increases the price of electricity” by paying participating generators “to withhold part of their generating capacity.” As a result, wholesale entities like Aspire are exposed “to the risk of financial loss because they contract in advance to buy and sell electricity at specific prices before the wholesale price is determined.” Additionally, ECRS, Aspire alleged, is “illegal.”
Aspire first challenged ECRS in 2024 by direct appeal to the Austin Court of Appeals under PURA’s authorization of judicial review of the agency’s competition rules. SCOTX subsequently held that ERCOT’s protocol was not a competition rule subject to direct appeal, so Aspire headed for Travis County district court. The PUC and ERCOT filed pleas to the jurisdiction, which the trial court granted. Aspire appealed.
In an opinion by Chief Justice Brister, the court of appeals affirmed. Aspire argued that Defendants waived immunity under by PURA and the APA, as well as ultra vires. With respect to PURA, the court observed that “PURA makes clear that ERCOT is the entity that adopts new or revised protocols while the PUC approves them.” The APA, on the other hand, only applies to rules “adopted” by a state agency. Since the Legislature decided not to give the PUC rulemaking authority for the protocols, the approval order “was not a competition rule adopted by the PUC subject to direct appeal under § 39.001(e) [Utilities Code].” See PUC v. RWE Renewables Am., LLC, 691 S.W.3d 484 (Tex. 2024). Moreover, as SCOTX held, ERCOT adopts protocols under a different process than the APA. Chapter 39, moreover, explicitly excludes this process from the APA.
Despite SCOTX’s ruling in RWE, Aspire argued at the district court that ERCOT’s protocols were illegal because they weren’t adopted pursuant to the APA, i.e., they should be treated as PUC-adopted rules. The court rejected Aspire’s argument that the PUC couldn’t delegate its rulemaking authority because SCOTX previously decided that since the protocols weren’t rules in the first place, Aspire’s delegation theory fell flat. Aspire thus couldn’t allege facts affirmatively demonstrating jurisdiction under its statutory claims.
The court likewise made short shrift of Aspire’s ultra vires claims. Since PURA has long authorized the PUC to adopt and enforce rules ensuring the reliability of the network, as well as to delegate those responsibilities to ERCOT, the court found no basis for an ultra vires claim. “Doing precisely what PURA authorized the PUC to do,” the court observed, “cannot be ultra vires.” In any event, the court went on, “[e]ven if neither the PUC nor ERCOT were protected by sovereign immunity, the district court would have no jurisdiction for an additional reason: the PUC’s jurisdiction is exclusive and Aspire failed to exhaust its administrative remedies.” Everything Aspire challenged in this case were “directed at ERCOT’s protocols relating to its statutory obligations to ensure a relieable grid through the development and implementation of Ancillary Services. It was incumbent upon Aspire to follow the ‘process for review of ERCOT protocols’ contained in the PUC rules: pursuing [sic] alternative dispute resolution with ERCOT, then filing a complaint with the PUC, and then filing a suit for judicial review under the substantial evidence rule.” The court affirmed the trial court’s dismissal for lack of jurisdiction.
