Preview
FILED
3/3/2022 4:07 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Angie Avina DEPUTY
1 CIT PCT 2/1 TRO/1 NOT DC-22-02327
CAUSE NO.
ONCOR ELECTRIC DELIVERY IN THE DISTRICT COURT
COMPANY LLC
Plaintiff,
vs. DALLAS COUNTY, TEXAS
RYAN GIESECKE
192nd
Defendant. JUDICIAL DISTRICT
PLAINTIFF’S ORIGINAL PETITION AND APPLICATION
FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF
TO THE HONORABLE COURT:
Plaintiff Oncor Electric Delivery Company LLC files this Original Petition complaining
of Defendant Ryan Giesecke as follows:
DISCOVERY LEVEL
1 This is an action for a mandatory injunction to enjoin interference with a utility,
pursuant to Section 186.005 of the Texas Utility Code, and Plaintiff requests that discovery be
conducted under Level 2 pursuant to Rule 190 of the Texas Rules of Civil Procedure.
PARTIES
2. Plaintiff Oncor Electric Delivery Company LLC (“Oncor”) is a Delaware limited
liability company engaged in the transmission and distribution of electrical service to individuals
and the public generally, public bodies and instrumentalities of state, local and federal
government, for light, heat, power and other purposes, and in the conduct of said business has
constructed, maintained and operates a system of transmission and distribution lines for electric
service throughout the State of Texas, including Dallas County. Oncor maintains its corporate
offices in Dallas County, Texas.
Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 1
3 Defendant Ryan Giesecke (“Mr. Giesecke’’) is an individual resident of the State
of Texas. Mr. Giesecke is the owner of real property located 1850 Williams Way Lane, Dallas,
Texas 75228 (the “Williams Way Lane Property”). Defendant may be served with citation at his
residence located at 1850 Williams Way Lane, Dallas, Texas 75228 and contacted by phone at
214-549-2543 or 214-577-9562
VENUE AND JURISDICTION
4 Venue is proper under 15.002(a)(1) and (2) of the Texas Civil Practices &
Remedies Code in that the events complained of occurred in Dallas County and that Giesecke
resides in Dallas County, Texas. Additionally, venue is mandatory in Dallas County, Texas as
that is the domicile of Giesecke. See TEX. CIv. PRAC. & REM CODE § 65.023. Finally, venue is
also proper pursuant to Section 186.005(d) of the Texas Utilities Code, as Dallas County is the
location of the violation or threatened violation of the Texas Utilities Code.
5 This court has jurisdiction over the subject matter of this case as it seeks damages
and injunctive relief within the jurisdictional limits of the court.
6. All parties are residents of the State of Texas and this action seeks recovery solely
under the laws of the State of Texas; therefore, this case is not removable to federal court.
FACTUAL BACKGROUND
7. Oncor owns and maintains electrical transmission lines throughout the State of
Texas, including Dallas County. One such distribution line, known as the THRNE 0002 Feeder
(The Feeder) passes through the Williams Way Lane Property and transmits high voltage current.
This feeder directly provides power to 1,763 homes and businesses in Dallas County and serves
as an integral part of the ERCOT grid that provides electrical delivery to millions of Texans.
Oncor’s customers served by the Feeder include four critical care customers (generally
Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 2
individuals dependent on life support equipment), one of which is a nursing center and two
essential business customers.
8 At this time, there are numerous trees, some of which appear unhealthy, over-
hanging or within six feet of the high voltage primary. The property is fenced, as shown in the
photo below, and guarded by dogs that Giesecke has routinely sent to attack Oncor utility
workers lawfully attempting to service lines on the property.
9. In Oncor’s judgment the vegetation on the Williams Way Lane Property
constitutes a possible interference or hazard to the operation of Oncor’s power lines, which in
turn hampers Oncor’s ability to maintain continuous and adequate electric service which in turn
endangers the safety and health of the public should an interruption of electric service occur. For
instance, the trees could cause damage to the power lines, possibly causing a power outage
which could affect many customers. In the event ofa line failure, the trees could prevent the line
from obtaining an adequate ground to operate fault protection equipment, resulting in a fire or
serious injury or death due to a 7.2 kV line remaining energized. Moreover, the trees are
particularly hazardous in this instance due to the fact that the power lines carry 7.2 kV (kilovolts)
of current and are not insulated. The trees’ interference with the open wire power lines could
Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 3
jeopardize the safety of the public and surrounding property through the danger of exposure to
live wires, including the risk of electric shock or fire.
10. Accordingly, the trees interfere with Oncor’s existing rights and create a danger to
the public and the power lines. Some of these dangers are outlined in Allen L. Clapp's Practical
Utility Safety, which is one of the leading treatises on the electric utility industry and is relied
upon by Oncor in certain regards in formulating its vegetation management programs. Clapp
details three basic safety issues related to tree trimming requirements:
keeping trees far enough away from energized conductors so that the
conductors will not be burned down by an arcing contact (NESC Rule
218);
(2) keeping trees far enough away from energized conductors that children
climbing in trees cannot reach the conductors or swing the tree into the
conductors (NESC Rule 012 and Good Industry Practice); and
(3) trimming the trees far enough back that, after the plant growth between
trimming cycles, the trees will still be far enough away to allow safe
trimming and removal of the sucker growth (ANSI Z133.1). Jd.
Practical Utility Safety, at p. 230. The author continues on to concisely express the safety issues
that arise with trees that contact power lines, stating:
[W]hen trees contact energized power conductors, current flows from the line
through the tree to the ground, energizing the ground around the tree. Because this
contact is not solid, an arc occurs between the line and the tree. The heat from the
arc can, if sustained long enough, damage the conductor enough that it will break
under its own tension, either at that time or later when the wind forces or weight
of ice increases the tension beyond its damaged structural capacity. During the
time of the current flow, persons in contact with the tree may be shocked, burned
or killed ifa good contact with the tree limb is made.
Id. at p. 230. Clapp’s book explains that trees contacting power lines can result in adverse
reactions ranging from momentary flickering of the power voltage level to power outages. /d. at
232. Trees may cause the line to be severed, making it possible that a person may contact an
energized conductor when it is lying on the ground. /d. at 232. Trees in close proximity to power
Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 4
lines additionally allow squirrels to jump to the poles or conductors. /d. This becomes a problem
when the squirrel’s tail comes in contact with something else, resulting in a short out of the line,
thus increasing the outage rate. /d. Further, “several people have been hit by flaming squirrels
that contacted energized power facilities and fell into an area where people were underneath the
line.” Jd. In sum, Clapp concludes, improperly trimmed trees around power lines can cause a
wide range of problems. Significant damage or injury can result both directly or indirectly from
power lines. /d. at 232. For example, power lines can be dropped on cars, or an accident may
occur at an intersection where lights failed to work due to power outages. /d. As explained in
Practical Utility Safety, trimming trees around power lines is essential to the protection of
individuals and property, and the maintenance of electrical service. True and correct copies of
the relevant excerpts from Clapp’s treatise are attached hereto as Exhibit A.
11. Additionally, when faced with a customer’s refusal to allow pruning of trees or
other vegetation, such as that done by Giesecke in this case, Oncor’s representatives will
generally provide a package of material to inform the customer of the respective rights of the
parties. A true and correct copy of that document in attached hereto as Exhibit B. Mr. Giesecke
refused to accept the package when it was presented to him. That package includes the entire
text of Section 186 of the Texas Utility Code, so that customers will be aware that Oncor is
entitled to a mandatory injunction against those that interfere with the maintenance of power
lines. See . TEX. UTIL. CODE 186.005.
12. Over the last several years, there have been a number of outages on the Feeder.
Over the last five years, there have been seven tree-related outages. In order to limit such outages
as part of its ongoing planned maintenance program, Oncor first contacted Giesecke by a door
hanger card on October 18, 2021 and was spoken to in person on October 20, 2021. Giesecke
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 5
refused to permit access and advised that he has dogs protecting the property that were a danger
to workers. The matter was escalated within Oncor for later action.
3s On January 6, 2022, Oncor arborists and crews arrived at the Williams Way Lane
Property and the crew attempted to access the property. As the first crewman entered the
property, Mrs. Giesecke came out with her two guardian dogs that her husband had pervious
advised were dangerous and ordered them to attack the crew saying, “Go, get them”. The crew
quickly exited the property and the wife reiterated that ONCOR had no easement for the span
entering her property and, until the lawyers had spoken and gone through the proper channels,
Oncor could not enter and trim. The wife called the police and when they arrived, Oncor’s
arborists provided the officers with copies of relevant sections of the Tariff and explained our
right to trim. The policemen told the arborists that they did not know much about easements or
utility rights and advised that Oncor seek alternative routes such as a court order to gain access.
14. Based on Giesecke’s comment that if lawyers were involved, Oncor’s legal team
prepared and mailed a letter to them, explaining Oncor’s right to trim the trees, which is attached
hereto as Exhibit C. The letter was sent on January 17, 2022, but Giesecke did not contact
Oncor to discuss or explain his and his wife’s refusal to allow lawful access to this property. On
January 18, 2022, Oncor arborist Lisa Maciques (“Maciques”) called Giesecke to inform him
that the letter from Oncor Legal would be delivered and mailed to the house and crews would
return on January 21, 2022. Giesecke said he would meet Oncor with his dogs if they tried to
enter his property.
15. On January 19, 2022, at 8:30 a.m., Maciques and another Oncor arborist arrived
to hand deliver the letter from Oncor Legal. They approached the property and the man believed
to be Giesecke walked out from the house and told them that we were officially harassing him
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 6
and that any attempt to enter the property would result in trespassing and harassment charges.
When they tried to hand him the letter he told then to “throw it on the ground where it belongs”.
The arborists proceeded to walk along the fence line towards the front gate to drop the letter off
in a basket meant for packages and during that time Giesecke once again ordered his dogs to
attack the Oncor worker, even though they were on the other side of the fence in the public right
of way.
16. In the interim, Oncor’s area manager reached out to the city, but was advised that
Oncor would need to pursue legal action. In light of the continued and deliberate patter of
ordering dangerous dogs to attack Oncor workers, in order to protect the health and safety of its
personnel, Oncor did not attempt to enter the property on January 21, 2021, but instead as
requested by law enforcement and city authorities, has presented this application for a restraining
order to the court. Neither Gisecke, his wife, nor their purported attorney has ever reached out to
Oncor to discuss a legal basis for their refusal to allow access to the property to remove
dangerous trees. Giesecke remains an Oncor customer and received the benefit of regulated rates,
while endangering the safety of his neighbors and Oncor’s facilities crossing the William Ways
Lane Property.
17. In order to prevent Giesecke’s efforts to thwart the reliable delivery of electrical
service in accordance with the express terms of the easement and applicable law, Oncor now
seeks this injunctive relief. Giesecke’s conduct constitutes an unlawful interference with Oncor’s
maintenance of its utility lines and places others at great risk for serious property damages,
bodily injury or even death. Giesecke’s conduct is inexcusable and unlawful.
CAUSES OF ACTION
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 7
18. Unlawful Interference with Public Utility. It is the policy of the State of Texas
that continuous service by a public utility is essential to the life, health, and safety of the public.
TEX. UTIL. CODE § 186.002(a). The primary duty of a public utility is to maintain continuous and
adequate service at all times to protect the safety and health of the public against the danger
inherent in the interruption of service. TEX. UTIL. CODE. § 186.002(b). The Texas Utilities Code
mandates that every court of this state shall recognize this policy. TEX. UTIL. CODE § 186.002(c).
Oncor is a public utility, and the Texas Utilities code prohibits any person from engaging in the
following acts:
a) intimidate, threaten, or harass an employee of a public utility with intent to
disrupt the service of the utility or prevent the maintenance of that service;
or
(2) intimate, threaten, or harass an employee of a public utility if that conduct
has the effect of disrupting the service of the utility or preventing the
maintenance of that service.
TEX. UTIL. CODE § 186.004(b). Giesecke violated the Texas Utilities Code and other laws
protecting the reliability and integrity of electrical service! because his actions prevent Oncor
from maintaining its power lines and because his actions have the effect of disrupting electrical
service. The Utilities Code further provides that “[i]f it appears that there is a violation or
threatened violation of § 186.004 the Court shall immediately issue an order restraining the
person, the person’s agent, and any other person acting with them from committing an act
prohibited by that section.” TEX. UTIL. CODE § 186.005 (emphasis added). The Utilities Code
| ‘The law recognizes that high voltage lines present an open and obvious danger when objects are brought into contact
with them Nance Exploration Co. v. Texas Employers Ins. Ass'n, 305 S.W.2d 621, 626 (Tex.Civ.App. — El Paso 1957, writ ref'd
n.r.e.). Thus bringing object in contact with lines or interfering with their maintenance can give rise to criminal penalties. TEX.
Civ. Star. § 1446(a) (stating in relevant part “[a]ny person who shall willfully . . .interferes with . . any machinery,
equipment, or facilities of any such utility. . . for the purpose of preventing the maintenance of such service, shall be guilty ofa
felony. ..”). Additionally, the law prohibits persons from conducting any activity that may bring material within six (6) feet of
high voltage power lines. TEx. HEALTH & SAF. CODE § 752.004. Vegetation, such as tree branches, is a material that one may not
bring or attempt to bring into contact with high voltage wires. See Chavez v. City of San Antonio ex rel. City Public Service Bd. of
San Antonio, 21 S.W.3d 435, 439-440 (Tex.App.-San Antonio 2000, pet. denied). Violation of Section 752 is a crime punishable
by a fine of $100 to $1000 and confinement of up to one year in jail. TEX. HEALTH & SAF. Cope § 752.007.
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 8
mandates that Giesecke’s conduct be enjoined. Thus, the requested temporary restraining order
in mandatory and bond must be set at only such an amount as to cover anticipated court costs,
which should be some amount less than $500.? Oncor is willing and able to post bond in the
amount set by the court.
19. Violation of Texas Utility Code. Electric corporations are given the authority to
construct, maintain, and operate power plants and substations and any machinery, apparatus,
pipe, pole, wire, device, or arrangements as necessary to operate its lines in this state. TEX. UTIL.
CODE § 181.008(b)(2). The Texas Utilities Code provides that a municipal electric utility (or,
with regard to clearances, an electric utility that is not a municipal electric utility) shall construct,
operate, and maintain its lines for the transmission and distribution of electric energy along
highways and other places in accordance with the National Electric Safety Code (““NESC”). TEx.
UTIL. CODE § 181.045(a). The NESC provision addressing tree trimming states, “trees that may
interfere with ungrounded supply conductors should be trimmed or removed.” NESC § 218A. A
note follows, stating “normal tree growth, the combined movement of trees and conductors under
adverse weather conditions, voltage, and sagging of conductors at elevated temperatures are
among the factors to be considered in determining the extent of trimming required.” In
accordance with the Texas Utility Code and the NESC, Oncor seeks to maintain a safe clearance
2 Bond amounts set for similar cases involving Oncor’s distribution lines at residences have been in these amounts. See
Oncor Electric Delivery Company LLC v. Donald Tidwell and Janet Tidwell, Cause No. 017-237166-09, Dallas County (April
17, 2009, J. Wilkinson) (setting bond at $500.00); Oncor Electric Delivery Company LLC v. Mark A, Sweazey, Cause No. 067-
239733-09, Dallas County (August 27, 2009, J. Cosby) (setting bond at $500.00); Oncor Electric Delivery Company LLC v.
Dickie and Michelle Musselman, Cause No. 09-1076, Dallas County (August 29, 2009, J. Snelson) (setting bond at $100.00);
Oncor Electric Delivery Company LLC v. Leslie “Les” Martin, Cause No. CV-10-0458, Grayson County (March 16, 2010, J.
Fallon) (setting bond at $100.00); Oncor Electric Delivery Company LLC v. John Bieber and Jes Jomell LLC, Cause No. 94097-
422, Kaufmann County (November 4, 2015, J. Chitty) (setting bond at $500.00), Oncor Electric Delivery Company LLC v. James
and LaDorthy Webb, Cause No. 16-01598, Dallas County (February 15, 2016, J. Hoffman) (setting bond at $500.00),
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 9
distance of at least ten feet (10°) when pruning trees.? Giesecke’ interference with Oncor’s lawful
trimming along its conductors is in contravention of the Texas Utility Code.
20. Breach of Tariff for Retail Delivery: The Public Utility Regulatory Act (“PURA”)
requires each utility to file a tariff with the Public Utility Commission. TEX. UTIL. CODE
§32.101; Houston Lighting & Power v. Auchan, U.S.A., 995 S.W.2d 668, 671 (Tex. 1998). A
filed tariff governs a utility’s relationship with its customers and has the force and effect of law.
Southwest Electric Power Co. v. Grant, 73 8.W.3d 211, 222 (Tex. 2002); Auchan, 995 S.W.2d at
671. “[A] customer is ‘conclusively presumed’ to know the contents and the effect of the tariff,
and neither the customer’s ignorance nor the carrier’s misquotation of the applicable tariff alters
the tariff’s terms.” Kanuco Technology Corp. v. Worldcom Network Services, Inc., 979 S.W.2d
368, 374 (Tex.App. Houston [14 Dist.] 1998, no pet.). Oncor’s Tariff for Retail Delivery
Service (“Tariff”) gives Oncor the right of ingress and egress and to trim and remove trees on
Oncor’s property. Specifically, section 5.4.8 of Oncor’s Tariff, entitled “Access to Retail
Customer’s Premises,” gives Oncor or its duly authorized representatives the right of access to a
Retail Customer’s Premises at all reasonable hours, to perform activities necessary to provide
electrical services, including tree trimming and tree removal where such trees in the Oncor’s
opinion constitute a hazard to personnel, facilities, or to the provision of continuous electrical
service. Accordingly, Oncor has the right to enter Giesecke’s property to trim and remove trees.
Giesecke’s attempt to thwart Oncor’s lawful access to remove hazardous trees and/or vegetation
3 Oncor’s general rule of ten foot minimum clearance addresses several key concerns for reliability and worker safety.
First, federal regulations such as OSHA require that utility workers maintain a minimum distance of two feet, four inches (or
more) from high voltage lines. See 29 C.F.R. 1910.269. In addition, adequate clearance is required for utility workers to safely
operate and maintain our high voltage lines and equipment without the encumbrances of vegetation. Second, the National Electric
Safety Code and other experts suggest that an allowance of no less than two feet for sway in the lines and trees during storms. See
NESC Rule 233 Finally, in order to provide cost effective service and avoid frequent entries on customers’ properties for regular
pruning, Oncor attempis to prune trees no more than every several years. Based on average tree growth, Oncor plans for a foot
and a half of growth per year. These combined considerations are the basis for the minimum clearance sought herein. This also
ensures that unqualified persons are not working on materials within ten feet of high voltage lines in violation of federal
standards, see 29 C.F.R. 1910.333(c)(3)(i)(A) or potentially in violation of Texas law. TEX, HEALTH & SAF. CODE § 752.004.
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 10
contravenes his own obligations under the Tariff, which he has, as a matter of law, contractually
agreed to accept in return for being provided electrical service. Having accepted the benefits of
the Tariff, in receiving regulated and controlled rates, Giesecke cannot now disregard the Tariff
and seek to selectively opt out from its provision. Oncor requests that the Court issue a
declaratory judgment pursuant to 37.001 et seg. of the Texas Civil Practices & Remedies Code,
declaring that Oncor has the right to trim the vegetation in proximity to the power lines on the
property in question. Oncor further seeks the award of reasonable and necessary expenses and
attorneys’ fees as are equitable and just as provided by Section 37.009 of the Texas Civil
Practices & Remedies Code. Oncor also requests all recoverable consequential and incidental
damages arising from Giesecke’s breach of the Tariff.
REQUEST FOR TEMPORARY AND PERM/ INJUN IVE RELIEF
21. Oncor has no adequate remedy at law or otherwise for the harm or damage done
or threatened to be done by Giesecke because the potential damages to Oncor or third parties
attributable to Giesecke’s conduct cannot be calculated and because absent injunctive relief,
Giesecke will continue to deny Oncor access to its power lines, and continue to threaten the
safety of individuals, and real and personal property. Oncor will suffer irreparable harm, damage,
and injury unless the acts and conduct of Giesecke is enjoined because such acts deny Oncor
access to its conductors, and the Giesecke’s conduct jeopardizes the safety and welfare of all
individuals who live in Dallas County, including himself and his neighbors, and threatens
damage to surrounding personal and real property. As such, the harm, damage and injury with
which Oncor and the public are threatened are of a nature that cannot be adequately compensated
in damages.
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 11
22. For the foregoing reasons, Oncor requests that the Court grant ex parte relief
including a temporary restraining order and, after final trial, permanently enjoin Giesecke, his
spouse, family, agents, servants, and employees, from directly or indirectly:
a. Prohibiting Oncor, Oncor’s agents, employees, and/or contractors from accessing
its high voltage lines, conductors and equipment over the Williams Way Lane
Property,
From prohibiting Oncor, Oncor’s agents, employees, and/or contractors from
removing trees and other vegetation, on or upon Oncor’s easement for
transmission lines over the Williams Way Lane Property.
From threatening Oncor’s agents, employees, and/or contractors by any means,
Causing bodily injury to any Oncor agent, employee, and/or contractor.
Going into the work area incident to trimming the trees, which shall be no greater
than within fifteen (15) yards of Oncor’s agents, employees, and/or contractors,
while they are on the Williams Way Lane Property in order to remove trees and
other vegetation from the right-of-way.
Displaying, handling or otherwise having on his person firearms or other weapons
while Oncor’s agents, employees and/or contractors are present trimming
vegetation or otherwise maintaining the power lines at the William Way Lane
Property.
From having dogs loose outside on the William Way Lane Property while Oncor
employees, contractors or workers are present doing work.
Attempting to trim the trees himself until after such time as Oncor has achieved a
clearance of ten feet or greater to make it safe for him to perform such work.
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 12
PRAYER
WHEREFORE, Oncor respectfully prays that Giesecke be cited to appear and answer
herein, and that upon hearing or final trial hereon:
1 The Court issues a temporary restraining order, temporary injunction and
permanent injunction, enjoining Giesecke, his spouse, other family members and
any agents, from:
a. Prohibiting Oncor, Oncor’s agents, employees, and/or contractors from
accessing its high voltage lines, conductors and equipment over the
Williams Way Lane Property.
From prohibiting Oncor, Oncor’s agents, employees, and/or contractors
from removing trees and other vegetation, on or upon Oncor’s easement
for transmission lines over the Williams Way Lane Property.
From threatening Oncor’s agents, employees, and/or contractors by any
means,
Causing bodily injury to any Oncor agent, employee, and/or contractor.
Going into the work area incident to trimming the trees, which shall be no
greater than within fifteen (15) yards of Oncor’s agents, employees, and/or
contractors, while they are on the William Way Lane Property in order to
remove trees and other vegetation from the right-of-way.
Displaying, handling or otherwise having on his person firearms or other
weapons while Oncor’s agents, employees and/or contractors are present
trimming vegetation or otherwise maintaining the power lines at the
William Way Lane Property.
From having dogs loose outside on the William Way Lane Property while
Oncor employees, contractors or workers are present doing work.
Attempting to trim the trees himself until after such time as Oncor has
achieved a clearance of ten feet or greater to make it safe for him to
perform such work.
Alternatively, the Court enter a declaratory judgment declaring that Oncor has the
right to trim the trees and vegetation at least ten feet (10’) of the power lines at
issue;
Oncor has and recovers from Giesecke its recoverable consequential and
incidental damages arising from Giesecke’s breach of the Tariff;
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 13
Oncor has and recovers from Giesecke its attorneys’ fees, costs and expenses;
Oncor have and recover from Giesecke pre- and post-judgment interest; and
Oncor has such other and further relief to which it may be justly entitled.
Respectfully submitted,
By: __/s/ Daniel G, Altman
Daniel G. Altman
Texas Bar No. 00793255
Oncor Electric Delivery Company LLC
777 Main Street, Suite 747
P.O. Box 970
Fort Worth, Texas 76101-0970
(817) 215-5534 (telephone)
(817) 215-6360 (facsimile)
daniel.altman@oncor.com
ATTORNEY FOR PLAINTIFF ONCOR
ELECTRIC DELIVERY COMPANY LLC
Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 14
Certificate of Compliance with Local Rules
Pursuant to Dallas County Local Rule 3.30, I certify that to the best of my knowledge the party,
to wit Ryan Giesecke, against whom relief is sought ex parte is not represented by counsel in the
matter made the basis of the relief sought. Furthermore, two hours prior to filing this action, I
reached out to Mr. Giesecke at 214-549-2543 or 214-577-9562and informed him of Oncor’s
intent to file same and offered to email a copy of the Petition and inform him of the court to
which the case was assigned upon filing, if he wished to be heard.
/s/ Daniel G. Altman
Daniel. G. Altman
Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 15
VERIFICATION
STATE OF TEXAS §
COUNTY OF DALLAS §
BEFORE ME, the undersigned authority, personally appeared Hayden Ferguson known
to be the person whose name is described below, who, after being by me duly sworn, deposed
and stated as follows:
1 “My name is Hayden Ferguson. I am over the age of eighteen, have never been
convicted of a felony crime or other crimes of moral turpitude, and am fully competent to testify
to the matters stated herein. I am of sound mind, capable of making this Affidavit, and have
personal knowledge of the facts stated in this Affidavit and they are true and correct.
2. I have reviewed the Fact Section of this Original Petition and to my knowledge
the facts stated therein are true and correct.
FURTHER AFFIANT SAYETH NOT”
7
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ff
’
He [ 7 “tn
Hayden Férguson, Vegetatian Marlagément— Distribution
Oncor Electric Delivery Cay any LLC
SUBSCRIBED AND SWORN TO BEFORE ME by Hayden Ferguson, on this the 2™
day of March 2022.
JACKIE AMBROSE
Notary Publlc, State of Texas
My Comm. Expires 09-15-2022
Sadicl nose .
a MSMI7-6
Notary Public, State of Texas
Oncor v, Giesecke: Plaintiff's Original Pctition and Application for TRO— Page 16
PRACTICAL
UTILITY
SAFETY
A collection of discussions and
calculation aids for power,
telephone and CATV utilities
Allen L. Clapp, PE., R.L.S
editor
NESC™
ee ea
PE ae
publication
EST IENS
Electric Utility Construction
Chapter 25—Tree Requirements v. Municipal Tree Removal ——
Chapter 25
Municipal
Balancing Tree Trimming Requirements vs.
Tree Removal Standards
attempting to pass ordinances
In an effort to enhance scenic beauty, various cities are
ng, and removal of trees on road
and regulations mand, ating severe limitations on trimmi
ern various kinds of work around trees
rights-of-way. Typically these regulations also gov
of the tree. Unless the policies are
that might damage the root structure or alter the shape
sing the required safety around power
carefully drafted to increase beauty without decrea
lines, the results can be catastrophic.
removal of trees near power
When city policies and standards apply to trimmin g and
directly and adversely affect the health, safety,
and w velfare of the citizens and
lines, they can
state policies. In addition, Line Clear-
workers in the city and often contravene es tablished im-
improperly drafted can adversely
ance Standards and Tree Removal Standard s that are
city service to the citizens,
pact (a) the safety of tree trimmers, (b) the reliability of electri
ng in the city, and (d) the long-term effect on the
© the cost of electricity to ratepayers residi city. To be effective, such standards must rec-
beautification and preservation 0: f trees in the
economical, and reliable service.
ognize the responsibilities of utilities to provid ie safe,
Electric Utility Construction
directly affects the tree-trimming
The construction of individual electric util ity pole lines
requirements.
are intentionally isolated by
Overhead electric utility wires, cables and other conductors
working or pl aying. The conductors
elevation from areas where the public is expected to be
ed between the conduc-
are supported by insul ators at poles. Specific clearances are requir
for the conductors to contact each other
tors at the supports in order to limit the opportunity
clearance requirements are con-
in midspan and create outages or safety problems. These
).
tained in the National Electrical Safety Code (NESC
d ANSI C2) for the design, con
The NESC is the American National Standard (designate
and communication lines and equip-
struction, operation and maintenance f cor electric supply
al Bureau of Standards at the
ment. The NESC was originally deve loped by the Nation
by statute or commission rule in almost
command of the U.S. Congress. It has been adopted
ed the N ESC use the code whenever
every state. The few states that have not directly adopt
safety is discussed.
ce of a specific state re-
Courts in all states recognize N ESC requirements in the absen
between conductors and clearances
quirement. In addition to requirements for cle: arances
above ground, the NESC contains requiremen ts for cleara
nces to buildings and other instal-
ts (Rule 21841).
lations (Rule 234C), as well as tree trimming requiremen
determine the design of the utility
The amount of electric load and the locations of loads
n the various effects created by the
system that is most efficient. There are tradeoffs betwee
increase another. All of these tradeoffs
design choices available. Reducing one problem can
designs that are most appropriate
combine to shape the series of struct ure placements and
s parts of a city, even along
unde: r different conditions. Because conditions differ in variou
a va riety of structure types are used in ar
ny given line.
the same roadway,
265
Chapter 25—Tree Requirements v. Municipal Tree Removal __Electri Utility Construction
Lines are run to serve customers. Typically, it is both most efficient and provides the
least impact on land use to locate poles on property lines, especially if they are convenient
for running services to customers. Required service locations will often do more to dictate
pole locations than anything else. For longer runs in rural areas or less developed areas of a
city, where future service locations are unknown, or where building lots are wider than the
normal span lengths between poles, utility poles are generally spaced economically for the
terrain and the load (wire size) to be carried.
Most states’ statutes require utilities to promote adequate, reliable and economical util-
ity service to all of the citizens and residents of the State and to provide just and reasona-
ble rates and charges for public utility services without unjust discrimination, undue pre-
ferences or advantages. To that end, utilities adopt standardized construction and mainten-
ance systems applicable to particular conditions and select the appropriate construction and
maintenance based upon the given local conditions.
Where only one energized phase conductor and a grounded neutral return conductor
are needed to supply power loads, the energized phase conductor is usually placed on an
insulator at the pole top and the neutral is carried on a bracket on the side of the pole sever-
al feet lower. Where two or three energized phases are needed to supply heavy motor loads,
such as large irrigation pumps or industrial operations, these conductors must be supported
in such a manner that they will not contact one another when the wind blows.
There are typically two types of overhead support systems for carrying multiple electric
supply system energized phase conductors. The most common type, crossarm construction,
uses an 8-10 ft timber or metal arm mounted just below the top of the pole. Conductors are
supported on nonconductive insulators located approximately 6 inches from each end of the
arm, 7-9 feet apart. If the third phase conductor is needed for the circuit, itis located ona
poletop insulator so that it will swing above the crossarm- mounted conductors
when displaced by wind.
Crossarm construction must be used on the longer spans to provide the required hori-
zontal clearance between the conductors to limit wind conflicts. On shorter spans, compact
construction employing horizontal post insulators or insulated brackets and pin insulators
mounted directly on the pole can be used.
Compact construction is especially useful where available rights-of-way are narrow, but
it cannot be used for long spans. When it was first introduced, compact construction was
hailed for its slightly decreased initial costs, but the big saving was no longer having to re-
place wood crossarms. However, in the last decade many companies have found from hun-
dreds of thousands of these installations that (a) the reduced spacings of the compact con-
struction make it harder for line workers to maintain compact construction while it is ener-
gized and (b) there are significantly more lightning-related outages and system damage, un-
less other measures are taken. Duke Power, for one, has stopped installing compact con-
struction as a general rule for these reasons. Compact construction may no longer be a stan-
dard available in many areas to help meet the requirements of restrictive Line Clearance
Standards.
There are two standard timber crossarms in use by US utilities —eight feet long or ten
feet long; some utilities also utilize crossarm lengths of nine feet. For special installations,
even longer arms are occasionally used. The longer arms are used for longer spans or for
conductors havingiB & greater wind displacements. For each of these crossarms, the hole for the
outside insulator position is usually six inches from the end of the crossarm to limit the
splitting of the end of the arm
266
Chapter 25—Tree Requirements v. Municipal Tree Removal Conductor Movement and Effects on Tree Trimming
If the line is straight, the conductor will sit ina groove directly above the insulator sup-
port pin; if the pole is an angle pole, the conductor will be located on the outside of the insu-
lator and may be a couple of inches closer to the end of the crossarm. Thus, the distance
from the center of the pole to the conductor position will vary from 3 ft - 6 in to 3 ft - 8 in for
an 8 ft crossarm. The distance will be one foot longer for a ten-foot crossarm.
The distance from the center of the pole to the conductor position on compact construc-
tion varies with the voltage (insulator length) and whether the line is straight or contains an
angle. For the voltages used by many utilities, this dimension is 30 inches. Because of the
reduced clearances between conductors, compact construction is only useful for shorter
spans, such as where poles are on every other lot line in subdivisions.
Where longer spans are necessary or otherwise appropriate to cross or dodge obstacles,
crossarms must be used to achieve the necessary spacing at the pole to limit the opportunity
for conductors to contact each other in midspan during high winds or uneven ice loading.
Thus, even if compact construction is the norm ina given local area, portions of the line may
need to use longer crossarms to achieve the required conductor spacing.
Poles do not remain straight up during their life. Permanent changes may be brought
about b
Preview
FILED 3/3/2022 4:07 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Angie Avina DEPUTY 1 CIT PCT 2/1 TRO/1 NOT DC-22-02327 CAUSE NO. ONCOR ELECTRIC DELIVERY IN THE DISTRICT COURT COMPANY LLC Plaintiff, vs. DALLAS COUNTY, TEXAS RYAN GIESECKE 192nd Defendant. JUDICIAL DISTRICT PLAINTIFF’S ORIGINAL PETITION AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF TO THE HONORABLE COURT: Plaintiff Oncor Electric Delivery Company LLC files this Original Petition complaining of Defendant Ryan Giesecke as follows: DISCOVERY LEVEL 1 This is an action for a mandatory injunction to enjoin interference with a utility, pursuant to Section 186.005 of the Texas Utility Code, and Plaintiff requests that discovery be conducted under Level 2 pursuant to Rule 190 of the Texas Rules of Civil Procedure. PARTIES 2. Plaintiff Oncor Electric Delivery Company LLC (“Oncor”) is a Delaware limited liability company engaged in the transmission and distribution of electrical service to individuals and the public generally, public bodies and instrumentalities of state, local and federal government, for light, heat, power and other purposes, and in the conduct of said business has constructed, maintained and operates a system of transmission and distribution lines for electric service throughout the State of Texas, including Dallas County. Oncor maintains its corporate offices in Dallas County, Texas. Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 1 3 Defendant Ryan Giesecke (“Mr. Giesecke’’) is an individual resident of the State of Texas. Mr. Giesecke is the owner of real property located 1850 Williams Way Lane, Dallas, Texas 75228 (the “Williams Way Lane Property”). Defendant may be served with citation at his residence located at 1850 Williams Way Lane, Dallas, Texas 75228 and contacted by phone at 214-549-2543 or 214-577-9562 VENUE AND JURISDICTION 4 Venue is proper under 15.002(a)(1) and (2) of the Texas Civil Practices & Remedies Code in that the events complained of occurred in Dallas County and that Giesecke resides in Dallas County, Texas. Additionally, venue is mandatory in Dallas County, Texas as that is the domicile of Giesecke. See TEX. CIv. PRAC. & REM CODE § 65.023. Finally, venue is also proper pursuant to Section 186.005(d) of the Texas Utilities Code, as Dallas County is the location of the violation or threatened violation of the Texas Utilities Code. 5 This court has jurisdiction over the subject matter of this case as it seeks damages and injunctive relief within the jurisdictional limits of the court. 6. All parties are residents of the State of Texas and this action seeks recovery solely under the laws of the State of Texas; therefore, this case is not removable to federal court. FACTUAL BACKGROUND 7. Oncor owns and maintains electrical transmission lines throughout the State of Texas, including Dallas County. One such distribution line, known as the THRNE 0002 Feeder (The Feeder) passes through the Williams Way Lane Property and transmits high voltage current. This feeder directly provides power to 1,763 homes and businesses in Dallas County and serves as an integral part of the ERCOT grid that provides electrical delivery to millions of Texans. Oncor’s customers served by the Feeder include four critical care customers (generally Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 2 individuals dependent on life support equipment), one of which is a nursing center and two essential business customers. 8 At this time, there are numerous trees, some of which appear unhealthy, over- hanging or within six feet of the high voltage primary. The property is fenced, as shown in the photo below, and guarded by dogs that Giesecke has routinely sent to attack Oncor utility workers lawfully attempting to service lines on the property. 9. In Oncor’s judgment the vegetation on the Williams Way Lane Property constitutes a possible interference or hazard to the operation of Oncor’s power lines, which in turn hampers Oncor’s ability to maintain continuous and adequate electric service which in turn endangers the safety and health of the public should an interruption of electric service occur. For instance, the trees could cause damage to the power lines, possibly causing a power outage which could affect many customers. In the event ofa line failure, the trees could prevent the line from obtaining an adequate ground to operate fault protection equipment, resulting in a fire or serious injury or death due to a 7.2 kV line remaining energized. Moreover, the trees are particularly hazardous in this instance due to the fact that the power lines carry 7.2 kV (kilovolts) of current and are not insulated. The trees’ interference with the open wire power lines could Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 3 jeopardize the safety of the public and surrounding property through the danger of exposure to live wires, including the risk of electric shock or fire. 10. Accordingly, the trees interfere with Oncor’s existing rights and create a danger to the public and the power lines. Some of these dangers are outlined in Allen L. Clapp's Practical Utility Safety, which is one of the leading treatises on the electric utility industry and is relied upon by Oncor in certain regards in formulating its vegetation management programs. Clapp details three basic safety issues related to tree trimming requirements: keeping trees far enough away from energized conductors so that the conductors will not be burned down by an arcing contact (NESC Rule 218); (2) keeping trees far enough away from energized conductors that children climbing in trees cannot reach the conductors or swing the tree into the conductors (NESC Rule 012 and Good Industry Practice); and (3) trimming the trees far enough back that, after the plant growth between trimming cycles, the trees will still be far enough away to allow safe trimming and removal of the sucker growth (ANSI Z133.1). Jd. Practical Utility Safety, at p. 230. The author continues on to concisely express the safety issues that arise with trees that contact power lines, stating: [W]hen trees contact energized power conductors, current flows from the line through the tree to the ground, energizing the ground around the tree. Because this contact is not solid, an arc occurs between the line and the tree. The heat from the arc can, if sustained long enough, damage the conductor enough that it will break under its own tension, either at that time or later when the wind forces or weight of ice increases the tension beyond its damaged structural capacity. During the time of the current flow, persons in contact with the tree may be shocked, burned or killed ifa good contact with the tree limb is made. Id. at p. 230. Clapp’s book explains that trees contacting power lines can result in adverse reactions ranging from momentary flickering of the power voltage level to power outages. /d. at 232. Trees may cause the line to be severed, making it possible that a person may contact an energized conductor when it is lying on the ground. /d. at 232. Trees in close proximity to power Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 4 lines additionally allow squirrels to jump to the poles or conductors. /d. This becomes a problem when the squirrel’s tail comes in contact with something else, resulting in a short out of the line, thus increasing the outage rate. /d. Further, “several people have been hit by flaming squirrels that contacted energized power facilities and fell into an area where people were underneath the line.” Jd. In sum, Clapp concludes, improperly trimmed trees around power lines can cause a wide range of problems. Significant damage or injury can result both directly or indirectly from power lines. /d. at 232. For example, power lines can be dropped on cars, or an accident may occur at an intersection where lights failed to work due to power outages. /d. As explained in Practical Utility Safety, trimming trees around power lines is essential to the protection of individuals and property, and the maintenance of electrical service. True and correct copies of the relevant excerpts from Clapp’s treatise are attached hereto as Exhibit A. 11. Additionally, when faced with a customer’s refusal to allow pruning of trees or other vegetation, such as that done by Giesecke in this case, Oncor’s representatives will generally provide a package of material to inform the customer of the respective rights of the parties. A true and correct copy of that document in attached hereto as Exhibit B. Mr. Giesecke refused to accept the package when it was presented to him. That package includes the entire text of Section 186 of the Texas Utility Code, so that customers will be aware that Oncor is entitled to a mandatory injunction against those that interfere with the maintenance of power lines. See . TEX. UTIL. CODE 186.005. 12. Over the last several years, there have been a number of outages on the Feeder. Over the last five years, there have been seven tree-related outages. In order to limit such outages as part of its ongoing planned maintenance program, Oncor first contacted Giesecke by a door hanger card on October 18, 2021 and was spoken to in person on October 20, 2021. Giesecke Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 5 refused to permit access and advised that he has dogs protecting the property that were a danger to workers. The matter was escalated within Oncor for later action. 3s On January 6, 2022, Oncor arborists and crews arrived at the Williams Way Lane Property and the crew attempted to access the property. As the first crewman entered the property, Mrs. Giesecke came out with her two guardian dogs that her husband had pervious advised were dangerous and ordered them to attack the crew saying, “Go, get them”. The crew quickly exited the property and the wife reiterated that ONCOR had no easement for the span entering her property and, until the lawyers had spoken and gone through the proper channels, Oncor could not enter and trim. The wife called the police and when they arrived, Oncor’s arborists provided the officers with copies of relevant sections of the Tariff and explained our right to trim. The policemen told the arborists that they did not know much about easements or utility rights and advised that Oncor seek alternative routes such as a court order to gain access. 14. Based on Giesecke’s comment that if lawyers were involved, Oncor’s legal team prepared and mailed a letter to them, explaining Oncor’s right to trim the trees, which is attached hereto as Exhibit C. The letter was sent on January 17, 2022, but Giesecke did not contact Oncor to discuss or explain his and his wife’s refusal to allow lawful access to this property. On January 18, 2022, Oncor arborist Lisa Maciques (“Maciques”) called Giesecke to inform him that the letter from Oncor Legal would be delivered and mailed to the house and crews would return on January 21, 2022. Giesecke said he would meet Oncor with his dogs if they tried to enter his property. 15. On January 19, 2022, at 8:30 a.m., Maciques and another Oncor arborist arrived to hand deliver the letter from Oncor Legal. They approached the property and the man believed to be Giesecke walked out from the house and told them that we were officially harassing him Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 6 and that any attempt to enter the property would result in trespassing and harassment charges. When they tried to hand him the letter he told then to “throw it on the ground where it belongs”. The arborists proceeded to walk along the fence line towards the front gate to drop the letter off in a basket meant for packages and during that time Giesecke once again ordered his dogs to attack the Oncor worker, even though they were on the other side of the fence in the public right of way. 16. In the interim, Oncor’s area manager reached out to the city, but was advised that Oncor would need to pursue legal action. In light of the continued and deliberate patter of ordering dangerous dogs to attack Oncor workers, in order to protect the health and safety of its personnel, Oncor did not attempt to enter the property on January 21, 2021, but instead as requested by law enforcement and city authorities, has presented this application for a restraining order to the court. Neither Gisecke, his wife, nor their purported attorney has ever reached out to Oncor to discuss a legal basis for their refusal to allow access to the property to remove dangerous trees. Giesecke remains an Oncor customer and received the benefit of regulated rates, while endangering the safety of his neighbors and Oncor’s facilities crossing the William Ways Lane Property. 17. In order to prevent Giesecke’s efforts to thwart the reliable delivery of electrical service in accordance with the express terms of the easement and applicable law, Oncor now seeks this injunctive relief. Giesecke’s conduct constitutes an unlawful interference with Oncor’s maintenance of its utility lines and places others at great risk for serious property damages, bodily injury or even death. Giesecke’s conduct is inexcusable and unlawful. CAUSES OF ACTION Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 7 18. Unlawful Interference with Public Utility. It is the policy of the State of Texas that continuous service by a public utility is essential to the life, health, and safety of the public. TEX. UTIL. CODE § 186.002(a). The primary duty of a public utility is to maintain continuous and adequate service at all times to protect the safety and health of the public against the danger inherent in the interruption of service. TEX. UTIL. CODE. § 186.002(b). The Texas Utilities Code mandates that every court of this state shall recognize this policy. TEX. UTIL. CODE § 186.002(c). Oncor is a public utility, and the Texas Utilities code prohibits any person from engaging in the following acts: a) intimidate, threaten, or harass an employee of a public utility with intent to disrupt the service of the utility or prevent the maintenance of that service; or (2) intimate, threaten, or harass an employee of a public utility if that conduct has the effect of disrupting the service of the utility or preventing the maintenance of that service. TEX. UTIL. CODE § 186.004(b). Giesecke violated the Texas Utilities Code and other laws protecting the reliability and integrity of electrical service! because his actions prevent Oncor from maintaining its power lines and because his actions have the effect of disrupting electrical service. The Utilities Code further provides that “[i]f it appears that there is a violation or threatened violation of § 186.004 the Court shall immediately issue an order restraining the person, the person’s agent, and any other person acting with them from committing an act prohibited by that section.” TEX. UTIL. CODE § 186.005 (emphasis added). The Utilities Code | ‘The law recognizes that high voltage lines present an open and obvious danger when objects are brought into contact with them Nance Exploration Co. v. Texas Employers Ins. Ass'n, 305 S.W.2d 621, 626 (Tex.Civ.App. — El Paso 1957, writ ref'd n.r.e.). Thus bringing object in contact with lines or interfering with their maintenance can give rise to criminal penalties. TEX. Civ. Star. § 1446(a) (stating in relevant part “[a]ny person who shall willfully . . .interferes with . . any machinery, equipment, or facilities of any such utility. . . for the purpose of preventing the maintenance of such service, shall be guilty ofa felony. ..”). Additionally, the law prohibits persons from conducting any activity that may bring material within six (6) feet of high voltage power lines. TEx. HEALTH & SAF. CODE § 752.004. Vegetation, such as tree branches, is a material that one may not bring or attempt to bring into contact with high voltage wires. See Chavez v. City of San Antonio ex rel. City Public Service Bd. of San Antonio, 21 S.W.3d 435, 439-440 (Tex.App.-San Antonio 2000, pet. denied). Violation of Section 752 is a crime punishable by a fine of $100 to $1000 and confinement of up to one year in jail. TEX. HEALTH & SAF. Cope § 752.007. Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 8 mandates that Giesecke’s conduct be enjoined. Thus, the requested temporary restraining order in mandatory and bond must be set at only such an amount as to cover anticipated court costs, which should be some amount less than $500.? Oncor is willing and able to post bond in the amount set by the court. 19. Violation of Texas Utility Code. Electric corporations are given the authority to construct, maintain, and operate power plants and substations and any machinery, apparatus, pipe, pole, wire, device, or arrangements as necessary to operate its lines in this state. TEX. UTIL. CODE § 181.008(b)(2). The Texas Utilities Code provides that a municipal electric utility (or, with regard to clearances, an electric utility that is not a municipal electric utility) shall construct, operate, and maintain its lines for the transmission and distribution of electric energy along highways and other places in accordance with the National Electric Safety Code (““NESC”). TEx. UTIL. CODE § 181.045(a). The NESC provision addressing tree trimming states, “trees that may interfere with ungrounded supply conductors should be trimmed or removed.” NESC § 218A. A note follows, stating “normal tree growth, the combined movement of trees and conductors under adverse weather conditions, voltage, and sagging of conductors at elevated temperatures are among the factors to be considered in determining the extent of trimming required.” In accordance with the Texas Utility Code and the NESC, Oncor seeks to maintain a safe clearance 2 Bond amounts set for similar cases involving Oncor’s distribution lines at residences have been in these amounts. See Oncor Electric Delivery Company LLC v. Donald Tidwell and Janet Tidwell, Cause No. 017-237166-09, Dallas County (April 17, 2009, J. Wilkinson) (setting bond at $500.00); Oncor Electric Delivery Company LLC v. Mark A, Sweazey, Cause No. 067- 239733-09, Dallas County (August 27, 2009, J. Cosby) (setting bond at $500.00); Oncor Electric Delivery Company LLC v. Dickie and Michelle Musselman, Cause No. 09-1076, Dallas County (August 29, 2009, J. Snelson) (setting bond at $100.00); Oncor Electric Delivery Company LLC v. Leslie “Les” Martin, Cause No. CV-10-0458, Grayson County (March 16, 2010, J. Fallon) (setting bond at $100.00); Oncor Electric Delivery Company LLC v. John Bieber and Jes Jomell LLC, Cause No. 94097- 422, Kaufmann County (November 4, 2015, J. Chitty) (setting bond at $500.00), Oncor Electric Delivery Company LLC v. James and LaDorthy Webb, Cause No. 16-01598, Dallas County (February 15, 2016, J. Hoffman) (setting bond at $500.00), Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 9 distance of at least ten feet (10°) when pruning trees.? Giesecke’ interference with Oncor’s lawful trimming along its conductors is in contravention of the Texas Utility Code. 20. Breach of Tariff for Retail Delivery: The Public Utility Regulatory Act (“PURA”) requires each utility to file a tariff with the Public Utility Commission. TEX. UTIL. CODE §32.101; Houston Lighting & Power v. Auchan, U.S.A., 995 S.W.2d 668, 671 (Tex. 1998). A filed tariff governs a utility’s relationship with its customers and has the force and effect of law. Southwest Electric Power Co. v. Grant, 73 8.W.3d 211, 222 (Tex. 2002); Auchan, 995 S.W.2d at 671. “[A] customer is ‘conclusively presumed’ to know the contents and the effect of the tariff, and neither the customer’s ignorance nor the carrier’s misquotation of the applicable tariff alters the tariff’s terms.” Kanuco Technology Corp. v. Worldcom Network Services, Inc., 979 S.W.2d 368, 374 (Tex.App. Houston [14 Dist.] 1998, no pet.). Oncor’s Tariff for Retail Delivery Service (“Tariff”) gives Oncor the right of ingress and egress and to trim and remove trees on Oncor’s property. Specifically, section 5.4.8 of Oncor’s Tariff, entitled “Access to Retail Customer’s Premises,” gives Oncor or its duly authorized representatives the right of access to a Retail Customer’s Premises at all reasonable hours, to perform activities necessary to provide electrical services, including tree trimming and tree removal where such trees in the Oncor’s opinion constitute a hazard to personnel, facilities, or to the provision of continuous electrical service. Accordingly, Oncor has the right to enter Giesecke’s property to trim and remove trees. Giesecke’s attempt to thwart Oncor’s lawful access to remove hazardous trees and/or vegetation 3 Oncor’s general rule of ten foot minimum clearance addresses several key concerns for reliability and worker safety. First, federal regulations such as OSHA require that utility workers maintain a minimum distance of two feet, four inches (or more) from high voltage lines. See 29 C.F.R. 1910.269. In addition, adequate clearance is required for utility workers to safely operate and maintain our high voltage lines and equipment without the encumbrances of vegetation. Second, the National Electric Safety Code and other experts suggest that an allowance of no less than two feet for sway in the lines and trees during storms. See NESC Rule 233 Finally, in order to provide cost effective service and avoid frequent entries on customers’ properties for regular pruning, Oncor attempis to prune trees no more than every several years. Based on average tree growth, Oncor plans for a foot and a half of growth per year. These combined considerations are the basis for the minimum clearance sought herein. This also ensures that unqualified persons are not working on materials within ten feet of high voltage lines in violation of federal standards, see 29 C.F.R. 1910.333(c)(3)(i)(A) or potentially in violation of Texas law. TEX, HEALTH & SAF. CODE § 752.004. Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 10 contravenes his own obligations under the Tariff, which he has, as a matter of law, contractually agreed to accept in return for being provided electrical service. Having accepted the benefits of the Tariff, in receiving regulated and controlled rates, Giesecke cannot now disregard the Tariff and seek to selectively opt out from its provision. Oncor requests that the Court issue a declaratory judgment pursuant to 37.001 et seg. of the Texas Civil Practices & Remedies Code, declaring that Oncor has the right to trim the vegetation in proximity to the power lines on the property in question. Oncor further seeks the award of reasonable and necessary expenses and attorneys’ fees as are equitable and just as provided by Section 37.009 of the Texas Civil Practices & Remedies Code. Oncor also requests all recoverable consequential and incidental damages arising from Giesecke’s breach of the Tariff. REQUEST FOR TEMPORARY AND PERM/ INJUN IVE RELIEF 21. Oncor has no adequate remedy at law or otherwise for the harm or damage done or threatened to be done by Giesecke because the potential damages to Oncor or third parties attributable to Giesecke’s conduct cannot be calculated and because absent injunctive relief, Giesecke will continue to deny Oncor access to its power lines, and continue to threaten the safety of individuals, and real and personal property. Oncor will suffer irreparable harm, damage, and injury unless the acts and conduct of Giesecke is enjoined because such acts deny Oncor access to its conductors, and the Giesecke’s conduct jeopardizes the safety and welfare of all individuals who live in Dallas County, including himself and his neighbors, and threatens damage to surrounding personal and real property. As such, the harm, damage and injury with which Oncor and the public are threatened are of a nature that cannot be adequately compensated in damages. Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 11 22. For the foregoing reasons, Oncor requests that the Court grant ex parte relief including a temporary restraining order and, after final trial, permanently enjoin Giesecke, his spouse, family, agents, servants, and employees, from directly or indirectly: a. Prohibiting Oncor, Oncor’s agents, employees, and/or contractors from accessing its high voltage lines, conductors and equipment over the Williams Way Lane Property, From prohibiting Oncor, Oncor’s agents, employees, and/or contractors from removing trees and other vegetation, on or upon Oncor’s easement for transmission lines over the Williams Way Lane Property. From threatening Oncor’s agents, employees, and/or contractors by any means, Causing bodily injury to any Oncor agent, employee, and/or contractor. Going into the work area incident to trimming the trees, which shall be no greater than within fifteen (15) yards of Oncor’s agents, employees, and/or contractors, while they are on the Williams Way Lane Property in order to remove trees and other vegetation from the right-of-way. Displaying, handling or otherwise having on his person firearms or other weapons while Oncor’s agents, employees and/or contractors are present trimming vegetation or otherwise maintaining the power lines at the William Way Lane Property. From having dogs loose outside on the William Way Lane Property while Oncor employees, contractors or workers are present doing work. Attempting to trim the trees himself until after such time as Oncor has achieved a clearance of ten feet or greater to make it safe for him to perform such work. Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 12 PRAYER WHEREFORE, Oncor respectfully prays that Giesecke be cited to appear and answer herein, and that upon hearing or final trial hereon: 1 The Court issues a temporary restraining order, temporary injunction and permanent injunction, enjoining Giesecke, his spouse, other family members and any agents, from: a. Prohibiting Oncor, Oncor’s agents, employees, and/or contractors from accessing its high voltage lines, conductors and equipment over the Williams Way Lane Property. From prohibiting Oncor, Oncor’s agents, employees, and/or contractors from removing trees and other vegetation, on or upon Oncor’s easement for transmission lines over the Williams Way Lane Property. From threatening Oncor’s agents, employees, and/or contractors by any means, Causing bodily injury to any Oncor agent, employee, and/or contractor. Going into the work area incident to trimming the trees, which shall be no greater than within fifteen (15) yards of Oncor’s agents, employees, and/or contractors, while they are on the William Way Lane Property in order to remove trees and other vegetation from the right-of-way. Displaying, handling or otherwise having on his person firearms or other weapons while Oncor’s agents, employees and/or contractors are present trimming vegetation or otherwise maintaining the power lines at the William Way Lane Property. From having dogs loose outside on the William Way Lane Property while Oncor employees, contractors or workers are present doing work. Attempting to trim the trees himself until after such time as Oncor has achieved a clearance of ten feet or greater to make it safe for him to perform such work. Alternatively, the Court enter a declaratory judgment declaring that Oncor has the right to trim the trees and vegetation at least ten feet (10’) of the power lines at issue; Oncor has and recovers from Giesecke its recoverable consequential and incidental damages arising from Giesecke’s breach of the Tariff; Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 13 Oncor has and recovers from Giesecke its attorneys’ fees, costs and expenses; Oncor have and recover from Giesecke pre- and post-judgment interest; and Oncor has such other and further relief to which it may be justly entitled. Respectfully submitted, By: __/s/ Daniel G, Altman Daniel G. Altman Texas Bar No. 00793255 Oncor Electric Delivery Company LLC 777 Main Street, Suite 747 P.O. Box 970 Fort Worth, Texas 76101-0970 (817) 215-5534 (telephone) (817) 215-6360 (facsimile) daniel.altman@oncor.com ATTORNEY FOR PLAINTIFF ONCOR ELECTRIC DELIVERY COMPANY LLC Oncor v, Giesecke: Plaintiff's Original Petition and Application for TRO- Page 14 Certificate of Compliance with Local Rules Pursuant to Dallas County Local Rule 3.30, I certify that to the best of my knowledge the party, to wit Ryan Giesecke, against whom relief is sought ex parte is not represented by counsel in the matter made the basis of the relief sought. Furthermore, two hours prior to filing this action, I reached out to Mr. Giesecke at 214-549-2543 or 214-577-9562and informed him of Oncor’s intent to file same and offered to email a copy of the Petition and inform him of the court to which the case was assigned upon filing, if he wished to be heard. /s/ Daniel G. Altman Daniel. G. Altman Oncor v. Giesecke: Plaintiff's Original Petition and Application for TRO- Page 15 VERIFICATION STATE OF TEXAS § COUNTY OF DALLAS § BEFORE ME, the undersigned authority, personally appeared Hayden Ferguson known to be the person whose name is described below, who, after being by me duly sworn, deposed and stated as follows: 1 “My name is Hayden Ferguson. I am over the age of eighteen, have never been convicted of a felony crime or other crimes of moral turpitude, and am fully competent to testify to the matters stated herein. I am of sound mind, capable of making this Affidavit, and have personal knowledge of the facts stated in this Affidavit and they are true and correct. 2. I have reviewed the Fact Section of this Original Petition and to my knowledge the facts stated therein are true and correct. FURTHER AFFIANT SAYETH NOT” 7 At a ff ’ He [ 7 “tn Hayden Férguson, Vegetatian Marlagément— Distribution Oncor Electric Delivery Cay any LLC SUBSCRIBED AND SWORN TO BEFORE ME by Hayden Ferguson, on this the 2™ day of March 2022. JACKIE AMBROSE Notary Publlc, State of Texas My Comm. Expires 09-15-2022 Sadicl nose . a MSMI7-6 Notary Public, State of Texas Oncor v, Giesecke: Plaintiff's Original Pctition and Application for TRO— Page 16 PRACTICAL UTILITY SAFETY A collection of discussions and calculation aids for power, telephone and CATV utilities Allen L. Clapp, PE., R.L.S editor NESC™ ee ea PE ae publication EST IENS Electric Utility Construction Chapter 25—Tree Requirements v. Municipal Tree Removal —— Chapter 25 Municipal Balancing Tree Trimming Requirements vs. Tree Removal Standards attempting to pass ordinances In an effort to enhance scenic beauty, various cities are ng, and removal of trees on road and regulations mand, ating severe limitations on trimmi ern various kinds of work around trees rights-of-way. Typically these regulations also gov of the tree. Unless the policies are that might damage the root structure or alter the shape sing the required safety around power carefully drafted to increase beauty without decrea lines, the results can be catastrophic. removal of trees near power When city policies and standards apply to trimmin g and directly and adversely affect the health, safety, and w velfare of the citizens and lines, they can state policies. In addition, Line Clear- workers in the city and often contravene es tablished im- improperly drafted can adversely ance Standards and Tree Removal Standard s that are city service to the citizens, pact (a) the safety of tree trimmers, (b) the reliability of electri ng in the city, and (d) the long-term effect on the © the cost of electricity to ratepayers residi city. To be effective, such standards must rec- beautification and preservation 0: f trees in the economical, and reliable service. ognize the responsibilities of utilities to provid ie safe, Electric Utility Construction directly affects the tree-trimming The construction of individual electric util ity pole lines requirements. are intentionally isolated by Overhead electric utility wires, cables and other conductors working or pl aying. The conductors elevation from areas where the public is expected to be ed between the conduc- are supported by insul ators at poles. Specific clearances are requir for the conductors to contact each other tors at the supports in order to limit the opportunity clearance requirements are con- in midspan and create outages or safety problems. These ). tained in the National Electrical Safety Code (NESC d ANSI C2) for the design, con The NESC is the American National Standard (designate and communication lines and equip- struction, operation and maintenance f cor electric supply al Bureau of Standards at the ment. The NESC was originally deve loped by the Nation by statute or commission rule in almost command of the U.S. Congress. It has been adopted ed the N ESC use the code whenever every state. The few states that have not directly adopt safety is discussed. ce of a specific state re- Courts in all states recognize N ESC requirements in the absen between conductors and clearances quirement. In addition to requirements for cle: arances above ground, the NESC contains requiremen ts for cleara nces to buildings and other instal- ts (Rule 21841). lations (Rule 234C), as well as tree trimming requiremen determine the design of the utility The amount of electric load and the locations of loads n the various effects created by the system that is most efficient. There are tradeoffs betwee increase another. All of these tradeoffs design choices available. Reducing one problem can designs that are most appropriate combine to shape the series of struct ure placements and s parts of a city, even along unde: r different conditions. Because conditions differ in variou a va riety of structure types are used in ar ny given line. the same roadway, 265 Chapter 25—Tree Requirements v. Municipal Tree Removal __Electri Utility Construction Lines are run to serve customers. Typically, it is both most efficient and provides the least impact on land use to locate poles on property lines, especially if they are convenient for running services to customers. Required service locations will often do more to dictate pole locations than anything else. For longer runs in rural areas or less developed areas of a city, where future service locations are unknown, or where building lots are wider than the normal span lengths between poles, utility poles are generally spaced economically for the terrain and the load (wire size) to be carried. Most states’ statutes require utilities to promote adequate, reliable and economical util- ity service to all of the citizens and residents of the State and to provide just and reasona- ble rates and charges for public utility services without unjust discrimination, undue pre- ferences or advantages. To that end, utilities adopt standardized construction and mainten- ance systems applicable to particular conditions and select the appropriate construction and maintenance based upon the given local conditions. Where only one energized phase conductor and a grounded neutral return conductor are needed to supply power loads, the energized phase conductor is usually placed on an insulator at the pole top and the neutral is carried on a bracket on the side of the pole sever- al feet lower. Where two or three energized phases are needed to supply heavy motor loads, such as large irrigation pumps or industrial operations, these conductors must be supported in such a manner that they will not contact one another when the wind blows. There are typically two types of overhead support systems for carrying multiple electric supply system energized phase conductors. The most common type, crossarm construction, uses an 8-10 ft timber or metal arm mounted just below the top of the pole. Conductors are supported on nonconductive insulators located approximately 6 inches from each end of the arm, 7-9 feet apart. If the third phase conductor is needed for the circuit, itis located ona poletop insulator so that it will swing above the crossarm- mounted conductors when displaced by wind. Crossarm construction must be used on the longer spans to provide the required hori- zontal clearance between the conductors to limit wind conflicts. On shorter spans, compact construction employing horizontal post insulators or insulated brackets and pin insulators mounted directly on the pole can be used. Compact construction is especially useful where available rights-of-way are narrow, but it cannot be used for long spans. When it was first introduced, compact construction was hailed for its slightly decreased initial costs, but the big saving was no longer having to re- place wood crossarms. However, in the last decade many companies have found from hun- dreds of thousands of these installations that (a) the reduced spacings of the compact con- struction make it harder for line workers to maintain compact construction while it is ener- gized and (b) there are significantly more lightning-related outages and system damage, un- less other measures are taken. Duke Power, for one, has stopped installing compact con- struction as a general rule for these reasons. Compact construction may no longer be a stan- dard available in many areas to help meet the requirements of restrictive Line Clearance Standards. There are two standard timber crossarms in use by US utilities —eight feet long or ten feet long; some utilities also utilize crossarm lengths of nine feet. For special installations, even longer arms are occasionally used. The longer arms are used for longer spans or for conductors havingiB & greater wind displacements. For each of these crossarms, the hole for the outside insulator position is usually six inches from the end of the crossarm to limit the splitting of the end of the arm 266 Chapter 25—Tree Requirements v. Municipal Tree Removal Conductor Movement and Effects on Tree Trimming If the line is straight, the conductor will sit ina groove directly above the insulator sup- port pin; if the pole is an angle pole, the conductor will be located on the outside of the insu- lator and may be a couple of inches closer to the end of the crossarm. Thus, the distance from the center of the pole to the conductor position will vary from 3 ft - 6 in to 3 ft - 8 in for an 8 ft crossarm. The distance will be one foot longer for a ten-foot crossarm. The distance from the center of the pole to the conductor position on compact construc- tion varies with the voltage (insulator length) and whether the line is straight or contains an angle. For the voltages used by many utilities, this dimension is 30 inches. Because of the reduced clearances between conductors, compact construction is only useful for shorter spans, such as where poles are on every other lot line in subdivisions. Where longer spans are necessary or otherwise appropriate to cross or dodge obstacles, crossarms must be used to achieve the necessary spacing at the pole to limit the opportunity for conductors to contact each other in midspan during high winds or uneven ice loading. Thus, even if compact construction is the norm ina given local area, portions of the line may need to use longer crossarms to achieve the required conductor spacing. Poles do not remain straight up during their life. Permanent changes may be brought about b