author: STEVE McKEITHEN, Chief Justice. DAVID GAULTNEY, Justice,

text:
    In the Interest of M.G.M. and V.A.M.
    No. 09-03-528 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Jan. 25, 2005.
    Decided March 31, 2005.

      Robert Rosenquist, Darden, Fowler and Creighton, Conroe, for appellant.
    Ruth Lavada Vernier, The Woodlands, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

Matthew Jason Markle (“Matthew”) appeals a protective order issued by the trial court on July 30, 2003. The applicant for this protective order was his wife, Corinne Templin Markle (“Corinne”). Corinne’s application was filed on June 4, 2003. In support of her application, Corinne attached an affidavit indicating that she and Matthew were married on August 30,1996, in Kalamazoo, Michigan, and that she and Matthew were the parents of two children, M.G.M. and V.A.M. Corrine’s affidavit also stated that as of the June 4, 2003, fifing date, she and the two children had lived in Texas only since April 25, 2003, which works out to approximately forty days. Prior to April 25, 2003, Matthew, Corinne, and the two children had been residing in Decatur, Michigan. It also appears that Corinne and Matthew had been residing in Michigan prior to their marriage in August of 1996, and that the family had not resided outside of Michigan until Corinne came to Texas with the children on April 25, 2003.

The record further indicates that a temporary ex parte protective order was issued on June 4, 2003, and was to remain in effect for only twenty days. However, prior to Corinne’s protective order application, on May 28, 2003, Matthew initiated divorce and child custody proceedings in the 36th Judicial Circuit, Van Burén County, Michigan. While it is not apparent that Corinne was aware of the divorce and custody proceedings pending in Michigan at the time she first applied for the protective order on June 4, 2003, the record does reflect that on June 24, 2003, counsel for Matthew filed with the Texas trial court pleadings in the nature of a Special Appearance, Plea in Abatement, and Motion to Transfer Protective Order. Within his pleadings, Matthew informed the trial court of the pending divorce and custody proceeding in Michigan. The pleadings further contend that, pursuant to Tex. Fam.Code Ann. § 152.201 (Vernon 2002), the Texas trial court lacked subject-matter jurisdiction over the protective order action because Texas was not the home state of the children.

The record also indicates that on June 24, 2003, the trial court entered an order extending its temporary ex parte protective order with the agreement of Matthew’s trial counsel. Explicitly included within this June 24, 2003, temporary order is language recognizing that Matthew’s agreement to extend the temporary order was “subject and without prejudicing or waiving any plea to the jurisdiction or special appearance of the Respondent.” The extended temporary protective order noticed July 10, 2003, as the new date for the hearing “to determine whether the Court should issue its protective order.”

On July 10, 2003, a brief, non-evidentia-ry hearing was held of which we have a reporter’s record. The trial court, again with the agreement of Matthew’s trial counsel, extended the temporary ex parte protective order because of scheduling problems that prevented the trial court from taking evidence at that time. The trial court agreed to permit Matthew’s trial counsel to present his special appearance motion whenever the hearing reconvened. As it turned out, the hearing reconvened the next day, July 11, 2003. However, instead of permitting Matthew to testify and present his special appearance motion, the trial court began the hearing by ruling that Matthew’s agreeing to the extension of the temporary protective order on June 24, 2003, constituted a general appearance. Matthew’s trial counsel attempted to remind the trial court that he expressly reserved the special appearance issue with the trial court’s permission. The trial court would not reconsider and found the special appearance motion to have been waived.

At the July 11, 2003, evidentiary hearing, the trial court heard from Corinne and from Matthew as well as from a psychologist who evaluated Corinne prior to the hearing. At the conclusion of the testimony, the trial court recessed the hearing until it could interview M.G.M. and V.A.M. The trial court also extended the temporary ex parte protective order for an additional twenty days. Thereafter, on July 30, 2003, the trial cort interviewed M.G.M. and V.A.M. in chambers. Upon concluding the interviews with the children, the trial court ruled in open court that family violence had occurred and that family violence would likely occur in the future. The trial court then stated: “I am making it a final order today.” The written protective order was subsequently signed by the trial court that same day.

On appeal, both Matthew and Corinne raise jurisdictional issues, with Matthew contending the trial court lacked both personal and subject-matter jurisdiction to issue the July 30, 2003, protective order, and Corinne arguing that this Court lacks jurisdiction to entertain the appeal as the July 30, 2003, protective order is an interlocutory order and, therefore, not ap-pealable. Jurisdiction is fundamental; and we must determine whether we have jurisdiction over an appeal, regardless of whether the parties raise the issue. See Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). Lack of subject-matter jurisdiction by a trial court is fundamental error and may be raised for the first time on appeal. Id. To properly address the jurisdictional issues we must first determine under what authority the protective order was issued in light of the facts and circumstances present in the record.

From various comments made by the trial court, especially during the brief hearing conducted on July 10, 2003, it appears the trial court based the issuance of the July 30, 2003, protective order on the provisions contained in Title 4 of the Texas Family Code. See Tex. Fam.Code Ann. §§ 71.001-92.001 (Vernon 2002 & Supp. 2005). Matthew’s counsel, on the other hand, vigorously argued that the provisions of Chapter 152 of the Texas Family Code controlled as both Corinne’s application for protective order and all of the protective orders entered by the court made a “child custody determination” as that term is defined under Chapter 152. See Tex. Fam.Code Ann. § 152.102(3) & (4) (Vernon 2002). Significant, however, is the language contained in section 152.002 which reads: “If a provision of this chapter conflicts with a provision of this title or another statute or rule of this state and the conflict cannot be reconciled, this chapter prevails.” Tex. Fam.Code Ann. § 152.002 (Vernon 2002). As applied to the facts and circumstances of this case, we believe that the provisions of Title 4 have more of a general application to all of the issues before the trial court while Chapter 152 has more specialized and comprehensive application to those same issues. The Code Construction Act states that if a general provision conflicts with a special or local provision, the provisions “shall be construed, if possible, so that effect is given to both.” Tex. Gov’t Code Ann. § 311.026(a) (Vernon 1998). We will therefore examine the jurisdictional issues by giving effect to both Title 4 and Chapter 152 in the context of the particular facts of this case.

On the face of Corinne’s June 4, 2003, application for protective order, she references section 152.209(a) of the Texas Family Code in the apparent belief that compli-anee with that provision was somewhat of a prerequisite for filing the application. See Tex. Fam.Code Ann. § 152.209(a) (Vernon Supp.2005). Furthermore, an examination of Corinne’s affidavit that was filed in support of her application for protective order clearly indicated that Corinne and the children had only been “residing” in Texas for approximately forty days pri- or to the filing of the application. Added to the fact that Corinne’s application explicitly requested inter alia that the- trial court prohibit Matthew from removing the children from Gorinne’s possession, and that the trial court grant Corinne exclusive possession of the children and specify the terms of Matthew’s access to the children, Corinne’s application essentially required the trial court to conduct a “child custody proceeding,” and make a “child custody determination” involving children whose “home state” was clearly Michigan, not Texas. The fact that the main focus at the time the application was filed was protection for the applicant and the children from family violence could not allow the trial court to apply Title 4 exclusively and to the exclusion of the procedures set out in Chapter 152. An examination of the facts and circumstances in the instant case indicates that the necessary protections available to family violence victims in Title 4 and the purposes for Chapter 152, also known as the Uniform Child Custody Jurisdiction and Enforcement Act, could have been given full effect had the trial court attempted to do so. And, as noted above, the provisions of Chapter 152 prevail if an irreconcilable conflict arises between it and another statute or rule of the state. Tex. Fam.Code Ann. § 152.002 (Vernon 2002).

At the outset, we note that many of the operative provisions in Chapter 152 require a jurisdictional determination be made by the trial court before making a child custody determination. See Tex.Fam.Code Ann. §§ 152.201-152.204; 152.206-152.208; 152.304 (Vernon 2002). The doctrine that Texas district courts are courts of general jurisdiction and, therefore, are presumed to have subject-matter jurisdiction is not applicable to actions contemplated under Chapter 152 as the legislature has provided that some of those actions must be heard elsewhere. See Dubai Petroleum Co. v. Kazi 12 S.W.3d 71, 75 (Tex.2000). Under Chapter 152, in order for a Texas trial court to make an initial child custody determination, one of the four sub-parts of section 152.201(a) must be met. See Tex. Fam.Code Ann. 152.201(a) (Vernon 2002); In re Barnes, 127 S.W.3d 843, 846-47 (Tex.App.-San Antonio 2003, orig. proceeding); In re Brilliant, 86 S.W.3d 680, 685 (Tex.App.-El Paso 2002, no pet.). Chapter 152 prioritizes the child’s “home state” for jurisdictional purposes. See Barnes, 127 S.W.3d at 847; In re Oates, 104 S.W.3d 571, 576 (Tex.App-El Paso 2003, orig. proceeding). In short, a Texas court may make an initial child custody determination only if Texas “is the home state of the child on the date of the commencement of the proceeding, ...” See Tex. Fam.Code Ann. §§ 152.201(a)(1), 152.102(7), 152.102(5) (Vernon 2002); Oates, 104 S.W.3d at 577.

The facts in the instant case indicate that M.G.M. and V.A.M. had lived in Texas with Corinne for only about forty days. .Prior to that, Michigan was the state in which the children lived for at least six consecutive months before Corinne filed her application on June 4, 2003. Clearly, Texas was not the children’s home state so as to confer jurisdiction on the trial court to enter a child custody determination under section 152.201(a). However, there is an exception to the rule of “home state” jurisdiction under section 152.201(a) that permits a Texas court to exercise “temporary emergency jurisdiction” if the child is present in Texas and “the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” See Tex. Fam.Code Ann. § 152.204(a) (Vernon 2002). “A trial court enjoys broad discretion in issuing orders for immediate protection of a child.” Saavedra v. Schmidt, 96 S.W.3d 533, 544 (Tex.App.-Austin 2002, no pet.) (citing Garza v. Harney, 726 S.W.2d 198, 202 (Tex.App.-Amarillo 1987, orig. proceeding)). “States have a parens patriae duty to children within their borders, and the possibility that allegations of immediate harm might be true is sufficient for a court to assume temporary emergency jurisdiction in the best interests of the child under the UCCJEA.” Id. at 544. Even the duty of states to recognize and enforce a custody determination of another state must yield if circumstances require temporary emergency orders to protect the child. Id.

However, any order issued under emergency circumstances must be temporary in nature, and the order must specify a period that the court considers adequate to obtain an order from the state with jurisdiction. See Tex. Fam.Code Ann. § 152.204(c) (Vernon 2002); Saavedra, 96 S.W.3d at 544. The temporary order shall remain in effect only until proper steps are taken in the original forum state to adequately protect the child or until the specified period expires. See Tex. Fam.Code Ann. § 152.204(c) (Vernon 2002); Saavedra, 96 S.W.3d at 545. Furthermore, under the explicit terms of section 152.204(d), once a Texas court has been requested to make a child custody determination under section 152.204, upon being informed that a child custody proceeding has been commenced in a state having jurisdiction under section 152.201, the Texas court “shall immediately communicate with the other court.” Tex. Fam.Code Ann. § 152.204(d) (Vernon 2002) (emphasis added). Such inter-court communications are subject to the requirements set out under section 152.110 of the Texas Family Code. See Tex. Fam.Code Ann. § 152.110 (Vernon 2002). While the instant record is not clear at what point between June 4, 2003, and June 24, 2003, the trial court was aware of the pending divorce proceeding in Michigan, the record is clear that the court was made aware of that fact on June 24, 2003, with the filing -of Matthew’s pleadings. At that point, the trial court was required to communicate with the court in Van Burén County, Michigan, to ensure the safety of Corinne and the children by requesting, for example, that similar protective orders be made a part of the pending Michigan court’s divorce proceeding.

In light of the above, the trial court certainly had temporary emergency jurisdiction under section 152.204(a) to issue the ex parte temporary protective orders for the protection of Corinne and the children. To accomplish this, the trial court had the authority to utilize the provisions in Title 4, specifically Chapter 85. Under the provisions of Tex. Fam.Code Ann. § 85.001(b)(1) (Vernon 2002), if the trial court finds that family violence has occurred and further finds that family violence is likely to occur in the future, the court “shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence!.]” Section 85.022 consists of two major parts. See Tex. Fam.Code Ann. § 85.022 (Vernon 2002). Section 85.022(a) contains a list of certain remedial and therapeutic measures a trial court may order the person who has committed family violence to undertake and complete: (complete a battering intervention and prevention program; counsel with a social worker, psychologist, family service agency, etc...; or perform acts specified by the court that are determined necessary or appropriate to prevent or reduce the likelihood of family violence). Section 85.022(b) contains a list of prohibited conduct that usually appears in all protective orders for the protection of family violence, such as prohibiting the batterer from committing family violence; from communicating either directly or indirectly with the person protected in a threatening manner; from going to or near the residence, place of employment, business, school, or child-care facility of the person protected by the order; from engaging in any type of stalking, harassing, alarming, embarrassing, or abusive conduct directed at the person protected by the order; and from possessing a firearm unless the batterer is a licensed peace officer who is on-duty.

Section 85.001(b)(2) provides that the trial court “may” render a protective order as provided by Section 85.021, and make its provisions applicable to either the person found to have committed family violence or to the person protected by the order. See Tex. Fam.Code Ann. § 85.021 (Vernon 2002). The provisions listed under section 85.021 are somewhat atypical of provisions contained in temporary emergency protective orders as the list includes, (1) prohibiting the removal of a child who is a member of the family from the possession of a person named in the order or from the jurisdiction of the court, and prohibiting the transfer or disposal of property that is mutually owned or leased by “the parties;” (2) granting exclusive possession of a residence to a party and, if appropriate, directing one or more parties to vacate the residence if the residence is jointly owned or leased or owned or leased by one or both of the parties; providing for possession of and access to a child of a party if the person receiving possession of or access to the child is a parent of the child; requiring the payment of support for a party or for a child of a party if the person ordered to pay has an obligation to support the other party or child; or awarding to a party the use and possession of specified property that is community property or jointly owned or leased.

The record before us indicates that the trial court’s July 30, 2003, protective order contains provisions from both section 85.021 and section 85.022. Not only does the order contain the standard prohibitions under section 85.022(b) reasonably necessary for the protection of Corinne and the children, the order also (1) requires Matthew to pay child support of “$199.69” per month, (2) requires Matthew to complete a “battering intervention and prevention program as provided by article 42.141 of the Texas Code of Criminal Procedure,” and (3) prohibits Matthew from “transferring, encumbering, or otherwise disposing of property mutually owned or leased by the parties, except when in the ordinary course of business.” Under the facts and circumstance of this case, these latter requirements and prohibitions were outside the trial court’s authority to impose on Matthew based upon the scope of its temporary emergency jurisdiction. Absent evidence that the latter three burdens placed on Matthew related to emergency protection for the child, parent, or sibling of the child, these were matters that were best left for the Michigan court to decide in the course of disposing of the divorce proceeding.

Under the facts and circumstances in the record, the proper course open to the trial court was to have exercised temporary emergency jurisdiction under section 152.204(a) and issued the temporary ex parte protective order which could include all of the provisions listed under section 85.022(b) as specifically tailored to the facts presented. Additionally, the trial court was authorized to include the prohibition listed under section 85.021(l)(A)(i), prohibiting Matthew from removing the children from Corinne’s possession as this was also a reasonable condition for protection of the children and Corinne. Having done this, it was incumbent for the trial court to have communicated with the Michigan court as soon as possible once the trial court was aware of the. simultaneous proceeding pending there, after having stayed any further proceedings in it’s court. See Tex. Fam.Code Ann. § 152.206(b) (Vernon 2002). If the Michigan court indicates to the trial court that Michigan is the more appropriate forum, the trial court shall dismiss the pending temporary ex parte protective order and application, but only when the trial court is satisfied that the Michigan court has entered a substantially similar order that would protect Corinne and the children from family violence, especially during the pendency of the divorce proceeding. See Tex. Fam.Code Ann. §§ 152.206(b), 152.204(c) (Vernon 2002). Should laws similar to Texas’s Title 4 exist in Michigan, the trial court should inquire as to the time necessary for the Michigan court to enter such an order and inform the Michigan court that the temporary ex parte protective order would remain in effect until further notice from the Michigan court. Such communication with the Michigan court would permit the trial court to specify in the temporary protective order the “period, that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction[.]” See Tex. Fam.Code Ann. § 152.204(c) (Vernon 2002).

To sum up, we find that the trial court had temporary emergency jurisdiction under section 152.204(a) to enter a temporary protective order limited in scope to provisions that would ensure the physical safety of Corinne and the children. Having learned of the pending divorce proceeding in Michigan, and having determined from the face of Corinne’s application and affidavit that Michigan was the home state of the children under the provisions of Chapter 152, the trial court was limited in taking any further action with regard to the temporary protective order until it communicated with the Michigan court in which the divorce proceeding was pending. See Tex. Fam.Code Ann. §§ 152.204(c), 152.206(b) (Vernon 2002). Failing to communicate with the appropriate Michigan court was error.

It was also error to include in the July 30, 2008, protective order any conditions directed to Matthew that were not reasonably related to emergency protection from family violence, such as (1) conditions referring to “property mutually owned or leased by the parties,” (2) the awarding of child support payments of $199.69 to Corinne, and (3) the completion of a “battering intervention and prevention program” and the reporting of said completion to the trial court. As to these three provisions, the trial court exceeded the scope of its temporary jurisdiction and said provisions are therefore void. The remaining provisions reasonably relating to the protection of Corinne and the children from family violence continue in full force and effect as they were a product of the trial court’s temporary jurisdiction, under section 152.204(a).

Having found that the trial court had the limited jurisdiction to issue a temporary emergency protective order, we also find that we have jurisdiction to review said order as, having disposed of all parties and issues for which it had jurisdiction, it was a final, appealable order. Having exercised temporary emergency jurisdiction under section 152.204(a), and having learned that a divorce proceeding was pending in the State of Michigan, and having also been presented with undisputed evidence that the children’s home state was Michigan, the trial court was limited in taking any further actions, after having issued the temporary emergency protective order, to the provisions of sections 152.204(c) and 152.206(b). Section 152.204(c) is applicable to a trial court who exercises temporary emergency jurisdiction AND there is either a prior child custody determination that is entitled to enforcement under Chapter 152, or there is a pending custody proceeding in a court in the child’s home state. In our case, a pending divorce with a child custody issue existed in Michigan, the children’s home state. If these conditions exist, section 152.204(c) provides that “any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the [home state]. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.” The “order issued in this state” is the July 30, 2003, protective order. As we have interpreted the proper scope of the trial court’s jurisdiction under section 152.204(a) and (c), the protective order disposes of all parties (Matthew, Corinne, M.G.M. and V.A.M.), and all issues (emergency protection for Corinne, M.G.M. and V.A.M. from future acts of family violence by Matthew). The only future action anticipated, as previously noted, would be for the trial court to dismiss the temporary protective order when it is satisfied that the Michigan court has provided Corinne and the children adequate court-ordered protection from family violence under Michigan’s laws. Therefore, we are confident that the July 30, 2003, protective order disposed of all parties and all issues over which the trial court had jurisdiction to rule. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001). As such, it was a final and appealable order and we have jurisdiction to entertain the appeal. Matthew’s appellate issue two complaining that the trial court was without subject-matter jurisdiction is overruled in part and sustained in part.

We now turn to Matthew’s first issue alleging error by the trial court in finding he waived his special appearance motion. Under the facts and circumstances contained in the record, we agree with Matthew that the trial court erred in ruling that he waived his special appearance plea by making a general appearance on June 24, 2003. As previously noted, the temporary emergency ex parte protective order was extended by agreement of the parties on June 24, 2003. This extended order expressly provided that Matthew’s trial counsel “agreed to extend the Ex-Parte Protective Order ... subject to and without prejudicing or waiving any plea to the jurisdiction or special appearance of [Matthew].” We cannot permit a trial court to find a party’s special appearance motion waived because the party entered into an agreed collateral order, signed by the trial judge, which explicitly recognized that the party did not waive special appearance by entering into the agreed order. A trial court abuses its discretion when it, inter alia, acts arbitrarily or unreasonably. See Stelly v. Papania, 927 S.W.2d 620, 622 (Tex.1996). Here, the trial court abused its discretion in ruling that Matthew waived his plea of special appearance after signing an order explicitly recognizing the special appearance issue had been preserved. Our holding does not decide the personal jurisdiction issue regarding Matthew. We simply hold that the trial court erred in finding he waived a hearing and ruling on the merits. Matthew’s first issue is sustained.

Finally, we overrule Matthew’s fourth issue complaining of the lack of “credible” evidence to prove likelihood of future violence. Matthew does not clearly argue whether he is complaining of “legal” or “factual” insufficiency. When the trial court acts primarily as a factfinder, appellate courts normally review its determinations under the legal and factual sufficiency standards. See In re Doe, 19 S.W.3d 249, 253 (Tex.2000). When a party attacks the legal sufficiency of an adverse finding of an issue on which he did not have the burden of proof at trial, he must show on appeal that there was no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a “no evidence” point, we must view the evidence in a light that tends to support the finding and disregard all evidence and inferences to the contrary. Southwest Key Program, Inc. v. Gil-Perez, 81 S.W.3d 269, 274 (Tex.2002). If more than a scintilla of evidence exists to support the finding, the no-evidence challenge fails. Formosa Plastics Corp., U.S.A. v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

When a party attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof at trial, he must show on appeal that there is insufficient evidence to support the adverse finding. See Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App.-Amarillo 1988, writ denied). To conduct this review, we must examine the entire record and consider and weigh all the evidence, both in support of, and contrary to, the challenged finding. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We must uphold the finding unless the evidence that supports it is so weak as to be clearly wrong or manifestly unjust. See In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Raw Hide Oil & Gas, 766 S.W.2d at 275-76. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See GTE Mobilnet of South Tex. v. Pascouet, 61 S.W.3d 599, 615-16 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). We will not substitute our judgment for that of the trial court merely because we might reach a different conclusion. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

From the record before us we see that Corinne indicated in her affidavit in support of her application that Matthew’s violence toward her dated back to 1996, referring to two assaultive events against her. Also, in 1997, Matthew was apparently processed for a family violence offense and was required to attend court-ordered counseling for anger management. She also described circumstances of emotional and mental abuse during the marriage. She also described the various events of physical abuse Matthew directed toward the children in the early part of 2003. The record also contains the reporter’s record of the trial court’s interview with the children. The following is a portion of the interview of M.G.M., who was six years’ old at the time of the interview:

THE COURT: No. And where on your body has he [Matthew] hit you before?
M.G.M.: Usually in the back.
THE COURT: Okay. On your bottom? Okay. Well if we could change your Daddy Matt some way—
M.G.M.: There is no way. Never will you do that.
THE COURT: No? Have you tried?
M.G.M.: Never works.

During his testimony, Matthew denied being violent with Corinne. He admitted he was arrested in 1997, for the family violence against Corinne, but only pleaded guilty to the subsequent criminal charge because Corinne agreed to move back to Michigan with M.G.M. Matthew testified that it was Corinne who was the harsh disciplinarian regarding the children. He did admit that his spanking M.G.M. during the Easter Sunday incident, which precipitated Corinne’s move to Texas and application for the instant protective order, “was excessive, and I do regret the whole — the entire event.”

From just the portions of the above-described testimony, we find both legally and factually sufficient evidence existed for the trial court to find that family violence was likely to occur in the future. See Tex. Fam.Code Ann. § 85.001(a)(2) (Vernon 2002). It was for the trial court alone to determine the credibility of the witnesses, and the trial court could have disregarded Matthew’s denials in their entirety. We overrule issue four. We do not reach issue three as it argues, substantively, lack of personal jurisdiction by the trial court over Matthew. We have already indicated that the trial court merely found Matthew waived the issue by making a general appearance. Therefore, a substantive analysis of personal jurisdiction was not a part of the trial court’s ruling and is, therefore, not before us. . Having sustained Matthew’s first issue and part of Matthew’s second issue, we reverse the July 30, 2003, order of the trial court in part, and affirm it in part, and remand the cause to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART AND REVERSED IN PART AND REMANDED.

DAVID GAULTNEY, Justice,

concurring.

I concur. I agree with the majority’s resolution of issues 1, 3, and 4. On issue 2, I agree the trial court erred by not following section 152.204 in exercising its authority to make an emergency temporary custody determination. See Tex. Fam.Code Ann. § 152.204 (Vernon 2002). The trial court apparently did not consider Chapter 152 applicable to this Title 4 protective order proceeding. However, this proceeding involved, in part, a child custody determination, and the court was required by section 152.204 to communicate with the Michigan court “to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.”

The trial court signed a final protective order disposing of all parties and issues before the trial court without regard to section 152.204. I agree this Court has jurisdiction to review that order. See Ulmer v. Ulmer, 130 S.W.3d 294, 296-97 (Tex.App.-Houston [14th Dist.] 2004, no pet.). But see Saavedra v. Schmidt, 96 S.W.3d 533, 550 (Tex.App.-Austin 2002, no pet.).

However, I differ from the majority’s view of the scope of the applicability of section 152.204 to a Title 4 protective order. I read section 152.204 as governing the Texas court’s authority to make a temporary emergency child custody determination in the interstate context, not as governing all aspects of the Texas court’s protective order authority. The Family Code has a provision governing child support jurisdiction in the context of a simultaneous support proceeding in the child’s home state. See Tex. Fam.Code Ann. § 159.204 (Vernon Supp.2005). I believe that section would govern the support order jurisdiction here, not section 152.204; but the applicability of section 159.204 is not briefed by the parties. Apart from these restrictions concerning custody and support order jurisdiction, the trial court has broad jurisdiction under Title 4 to protect Corrine and the children. I would not declare the remaining provisions of the protective order void solely because of section 152.204.

The Family Code recognizes a court may have authority over some portions of a suit and not others. See Tex. Fam.Code Ann. § 102.012(a) (Vernon 2002). The Code provides:

(b) The court’s authority to resolve all issues in controversy between the parties may be restricted because the court lacks:
(1) the required personal jurisdiction over a non-resident party;
(2) the required jurisdiction under Chapter 152[Uniform Child Custody Jurisdiction and Enforcement Act]; or
(2) the required jurisdiction under chapter 159[Uniform Interstate Family Support Act].

Tex. Fam.Code Ann. § 102.012(b) (Vernon 2002). All three restriction provisions may apply to this proceeding. Even so, the Code contemplates that a Title 4 protective order may be issued on. behalf of a child who is subject to the jurisdiction of another court. See generally In re Salgado, 53 S.W.3d 752, 760-62 (Tex.App.-El Paso 2001, orig. proceeding)(two Texas Courts). Section 152.204 does not restrict the broad power of a trial court, beyond the interstate custody issues governed by the section, to enter a protective order under Title 4.

Nevertheless, I concur with the reversal and remand for further proceedings consistent with the Family Code.

      . Under section 152.102(3), " 'Child custody determination' means a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child. The term includes permanent, temporary, initial, and modification orders. The term does not include an order relating to child support or another monetary obligation of an individual.” Section 152.102(4) provides "'Child custody proceeding' means a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue. The term includes a proceeding for ... protection from domestic violence in which the issue may appear.”

      . Section 152.102(7) defines “home state” as "the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child custody proceeding.” Tex. Fam.Code Ann. § 152.102(7) (Vernon 2002).

      . Section 152.206(b) provides that "before” hearing a child custody proceeding, the trial court "shall” examine the court documents and other information supplied by the parties pursuant to section 152.209, and if the trial court determines that a child custody proceeding has been commenced in the child’s home state, the trial court "shall” stay its proceedings and communicate with the home state court. If the home state court does not determine that the trial court is a more appropriate forum, then the trial court "shall” dismiss the proceeding. Id. (emphasis added).
      Section 152.206(b) is applicable "[ejxcept as otherwise provided in Section 152.204[.]” Except for the provision in section 152.204(c) that the temporary emergency order will remain in effect until an order is obtained from the home state, section 152.206(b) does not appear to conflict under the facts and circumstances of the instant case.

      . Generally, custody determinations by themselves are considered "status” adjudications as they focus on the "status” of the child (child’s care, protection, training, and relationship) and are not dependent upon personal jurisdiction over the parents. See In the Interest of S.A.V., 837 S.W.2d 80, 84 (Tex.1992); Creavin v. Moloney, 773 S.W.2d 698, 703 (Tex.App.-Corpus Christi 1989, writ denied). However, adjudications of child support, visitation expenses, or other "property”type issues usually require a court to acquire personal jurisdiction over the parent affected by the adjudications. See Kulko v. Superior Court of California In and For the City and County of San Francisco, 436 U.S. 84, 91, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Shaffer v. Heitner, 433 U.S. 186, 198-202, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977).

      . Though the parties have not cited a conflicting order from the Michigan court, section 83.005 of Title 4, addressing ex parte temporary protective orders, provides: "During the time the order is valid, a temporary ex parte order prevails over any other court order made under Title 5 to the extent of any conflict between the orders.” See Tex. Fam. Code Ann. § 83.005 (Vernon 2002). This is a final order, of course.


source: Caselaw Access Project

author: DAVID PURYEAR, Justice.

license: Public Domain

text:
    PUBLIC UTILITY COMMISSION OF TEXAS and WWC Texas RSA Limited Partnership, Appellants, v. TEXAS TELEPHONE ASSOCIATION and Texas Statewide Telephone Cooperative, Inc., Appellees.
    Nos. 03-03-00765-CV, 03-04-00026-CV.
    Court of Appeals of Texas, Austin.
    April 7, 2005.

      Kristen L. Woman, Nathan M. Bigbee, Asst. Attys. Gen., Austin, for Public Utility Commission.
    Mark J. Ayotte,' Briggs and Morgan, PA, St. Paul, MN, Matt Dow, Alexandre P. Bourgeois, Jackson Walker LLP, Austin, for Western Wireless Corporation Texas RSA Limited Partnership.
    Lin Hughes, Brook Bennett Brown, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for appellees.
    Before Justices KIDD, PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

This case concerns the application by Western Wireless Corporation Texas RSA Limited Partnership (‘Western Wireless”) for state and federal subsidies. Western Wireless sought designation as an eligible telecommunications provider and carrier by the Public Utility Commission (“the Commission”) in order to be eligible to receive subsidies from both federal and state universal service funds. Texas Telephone Association and Texas Statewide Telephone Cooperative, Inc. (collectively “Texas Telephone”) filed motions to intervene to object to Western Wireless receiving the subsidies. The Commission granted Western Wireless’s application. In addition, the Commission found that Western Wireless’s description of its basic telecommunications service and the tariff rate that it would charge for the service complied with the Commission’s requirements. Texas Telephone appealed both of these decisions of the Commission, and the district court reversed.

Western Wireless and the Commission appeal to this court. We will reverse the judgment of the district court and render judgment affirming the order of the Commission.

STATUTORY FRAMEWORK

One of the goals of the Federal Communications Commission (“FCC”) is to ensure that all Americans have access to affordable phone service. See Alenco Communications, Inc. v. FCC, 201 F.3d 608, 614-15 (5th Cir.2000). As a way of reaching this goal, the Universal Service Mandate provides that access to telephone service be provided to low-income consumers and those in rural, higher-cost areas. 47 U.S.C.A. § 254(b)(2)-(5) (West 2001). To effectuate this mandate, the FCC and state regulatory agencies have, in the past, provided subsidies to companies providing phone service to customers in rural areas and low-income customers. See In re Federal-State Joint Bd. on Universal Servs., Report and Order, CC Docket No. 96-45, 12 FCC Red. 8776, ¶ 10 & n. 15 (rel. May 8, 1997) (“Universal Service Order ”).

In 1996, Congress amended the Communications Act of 1934. Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (codified in various sections of titles 15 and 47 of the United States Code) (“Federal Telecommunications Act”). The purpose of the amendment was to promote competition to secure lower prices and to provide better services for consumers. Id. By requiring local carriers to share their networks with competitors, the goals of competition and market entry would be enhanced. See AT & T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999); see generally 47 U.S.C.A. §§ 251-53 (West 2001 & Supp. 2004). Congress directed that state and federal programs be adopted to advance universal service. 47 U.S.C.A. § 254(b)(5).

As a result, Texas and the federal government have established universal service funds to award subsidies to companies providing service to low income and rural, high-cost areas. See 47 U.S.C.A. § 254(e)-(f) (West 2001); Tex. Util.Code Ann. §§ 56.001-56.026 (West 2002 & Supp.2004-05). The subsidies are available only to carriers meeting the requirements established by the Public Utility Regulatory Act (“PURA”) (Tex. Util.Code Ann. §§ 11.001-64.158 (West 1998 & Supp.2004-05)), the Federal Telecommunications Act, and rules issued by the Commission and the FCC. In order to be eligible to receive these state and federal subsidies, an applicant must be designated as an “eligible telecommunications provider or carrier.” 47 U.S.C.A. § 214(e)(1) (West 2001); 16 Tex. Admin. Code § 26.417(a) (2004). Although the Commission can designate more than one eligible carrier or provider in a given area, in rural areas the Commission can only designate more than one carrier or provider if the Commission finds multiple designations to be in the “public interest.” 47 U.S.C.A. § 214(e)(2) (West 2001); 16 Tex. Admin. Code §§ 26.417(d), .418(e) (2004). When carriers receive these subsidies, they are required to provide basic telecommunications services to all customers within the rural areas they serve and to low-income consumers who cannot obtain service with other carriers. Tex. UtiLCode Ann. § 54.251(a)(2), (b) (West Supp.2004-05).

THE CONTROVERSY

Western Wireless is a telecommunications carrier that provides commercial mobile radio service (“CMRS”) to 107 counties in Texas. The services Western Wireless provides to its customers include but are not limited to the following: (1) the ability to make and receive phone calls within a specific bandwidth by use of arrangements with local telephone companies; (2) certain amounts of free local use of phone services; (3) an equivalent of dual-tone, multi-frequency signaling; (4) single-party service where one subscriber, not multiple parties, is served through an access line; (5) access to emergency services; (6) access to operator services; (7) access to interexchange services, which gives customers the ability to make and receive interexehange or toll calls; (8) access to directory assistance; (9) toll blocking services that allow customers to block the completion of outgoing toll calls; and (10) mobile cellular service.

In March 2000, Western Wireless filed applications with the Commission to become an eligible provider and an eligible carrier in order to receive subsidies from the state and federal universal service funds for providing basic local telecommunication services. Western Wireless requested these designations in areas that already had incumbent service providers. In its application, Western Wireless requested designations in the “study areas” of fourteen rural-incumbent carriers of which Texas Telephone is one.

One of the other rural incumbent carriers is the Southwest Arkansas Telephone Cooperative, Inc. (“Southwest”). Southwest’s study area includes seven local exchanges in Arkansas and one in Texas. Western Wireless applied for eligible carrier status only in the Texas portion of Southwest’s study area.

The Commission issued notice of Western Wireless’s applications to be considered an eligible telecommunications provider and carrier and set up a separate “designation docket.” Texas Telephone filed motions to intervene. Texas Telephone is an eligible telecommunications provider and carrier in areas where Western Wireless is seeking to be granted eligibility. The Commission then referred the applications to the State Office of Administrative Hearings.

As a preliminary matter, Texas Telephone insisted that Western Wireless was required to obtain a certificate of convenience and necessity, a certificate of operating authority, or a service provider certificate of operating authority (we will refer to each of these as a “CCN”) before receiving a designation as an eligible provider. The Commission rejected this argument and initially determined that Western Wireless was not required to be certificated in order to be an eligible provider.

At the hearing before the administrative law judge, Texas Telephone contended that, in addition to the CCN requirement, Western Wireless’s application should be denied for the following two reasons: (1) Western Wireless’s application would not be in the public interest and (2) Western Wireless did not apply to all of the local exchanges in the Southwest study area. The administrative law judge submitted a proposal for decision to the Commission and recommended Western Wireless’s applications be granted.

The Commission adopted the proposal for decision. The Commission concluded that the designation of Western Wireless as an eligible provider and carrier was in the public interest. The Commission refused to condition Western Wireless’s carrier designation on obtaining a similar designation in Arkansas.

In its Designation Order, the Commission also established the need for a separate “compliance docket.” Under existing Commission rules, to be eligible for universal service funding, an applicant must charge rates that did not exceed 150% of the incumbent carrier’s existing rate for basic local telecommunications services. 16 Tex. Admin. Code § 26.417(c)(1)(B) (2004). Initially, in the Designation Order, the Commission found that Western Wireless’s proposed rate of $14.99 did not appear to meet the 150% requirement. Therefore, the Designation Order required, in a separate compliance docket, that Western Wireless file a tariff with proposed rates that were no higher than 150% of the incumbents’ existing rates and required Western Wireless to provide a description of the content, pricing, terms, and conditions of Western Wireless’s universal offering to determine whether the service complied with the Commission’s requirements.

During the compliance proceeding, Western Wireless filed a proposed tariff and two additional amended tariffs with the Commission. In response, Texas Telephone filed a list of concerns for the Commission to consider when deciding whether to approve Western Wireless for subsidies. Texas Telephone asserted that Western Wireless’s proposed rate of $14.99 in its second amended tariff did not meet the 150% requirement.

In the interim period between the Designation Order and the compliance proceeding, the Commission enacted a new rule. See Tex. Admin. Code § 26.25(e)(8) (2002), repealed by 27 Tex. Reg. 9568 (2002). The rule required providers to list all of the fees and surcharges in the amount charged for providing basic local service in order to allow consumers to compare the services and rates charged by various providers. In March 2001, after the rule had become effective, the Commission issued a “notice of approval” approving Western Wireless’s tariff compliance filing. ■ In making this determination, the Commission specified that its approval was based, in part, on application of the new rule. Texas Telephone filed exceptions to the notice of approval and challenged the conclusion that Western Wireless’s tariff satisfied the 150% requirement.

The Commission issued notice that it would consider the exceptions filed by Texas Telephone in an open meeting and gave notice of the meeting to all parties including Texas Telephone. Both Texas Telephone’s and Western Wireless’s counsel attended the open meeting. At the meeting, Western Wireless contended that, after including all the charges listed in the new rule for comparison to the incumbent’s rate, its $14.99 rate complied with the 150% requirement.

After considering Texas Telephone’s exceptions, the Commission issued its Compliance. Order and approved Western Wireless’s tariff compliance filing, which included the basic service rate of $14.99. The Commission noted that its decision was based, in part, on the newly enacted Rule 26.25(e)(8).

Texas Telephone filed a motion for rehearing of the Compliance Order on May 29, 2001, contending there were procedural flaws in the Commission’s action and contending Western Wireless’s final compliance filing failed to meet the requirements of the Commission’s Designation Order and rules. During the Commission’s open meeting on June 14,2001, the Commissioners orally extended the time to act upon the motion for rehearing until July 16, 2001. However, the written order extending the Commission’s time to act was not reduced to writing and signed until August 2, 2001.

DISTRICT COURT’S JUDICIAL REVIEW

Texas Telephone appealed the Designation Order granting Western Wireless the status of an eligible provider and carrier. Western Wireless intervened in support of the Commission. The district court concluded that, the Commission, had committed the following three errors in deciding its Designation Order: (1) the Commission should have required Western Wireless to be certified before granting Western Wireless an eligible provider designation; (2) the Commission applied an incorrect legal standard when it considered whether designating Western Wireless as an eligible carrier and provider was in the public interest; and (3) the Commission should not have granted Western Wireless’s designation in only the single exchange of the Southwest study area that was in Texas.

Texas Telephone also appealed the Commission’s Compliance Order and filed a petition seeking administrative review. See Tex. Util.Code Ann. § 15.001 (West 1998). Texas Telephone alleged that the Compliance Order impermissibly attempted to modify a finding of fact in the Designation Order, that the attempt to modify the finding was not supported by substantial evidence, and that the Commission had deprived Texas Telephone of due process.

In response, Western Wireless filed a plea to the jurisdiction contending that the district court did not have jurisdiction because the appeal was not filed within 30 days as required by the Administrative Procedure Act. See Tex. Gov’t Code Ann. § 2001.176 (West 2000). Western Wireless also urged that because the compliance proceeding was not a contested-case proceeding, Texas Telephone had ho right to file an appeal.

Texas Telephone then amended its petition for judicial review seeking relief under the Uniform Declaratory Judgment Act (“UDJA”). See Tex. Civ. Prac. & Rem. Code Ann. §§ 37.001-.011 (West 1997). Texas Telephone asked the trial court to declare the Compliance Order void for the following reasons: (1) the Commission had exceeded its statutory authority by changing a finding of fact in a final order that was on appeal and (2) the Commission deprived Texas Telephone of procedural due process by entering findings of fact and conclusions of law without giving Texas Telephone the right to notice and a hearing as required in a contested case. See Tex. Gov’t' Code Ann. § 2001.081 (West 2000). Western Wireless amended its plea to the jurisdiction seeking dismissal of Texas Telephone’s declaratory-judgment action.

The district court consolidated the Designation Order and the Compliance Order appeals. The district court denied Western Wireless’s plea to the jurisdiction and reversed and remanded both of the Commission’s orders. The district court granted Texas Telephone’s request for declaratory relief by holding that the Compliance Order was void. Western Wireless and the Commission appeal these decisions of the district court.

DISCUSSION

Western Wireless and the Commission contend, on appeal, that the district court erred in reversing both the Designation Order and the Compliance Order. Regarding the Designation Order, Western Wireless asserts that it was not necessary for it to obtain a certificate in order to provide local service and asserts that the public interest was served by granting its designation requests. Further, Western Wireless urges that it need not seek eligibility designations in another state before being approved to receive universal fund subsidies in Texas. Regarding the Compliance Order, Western Wireless contends that the district court erred by granting Texas Telephone’s declaratory-judgment action, that Texas Telephone’s petition for judicial review was not timely filed, that the Commission correctly determined that the $14.99 rate complied with all relevant requirements, and that the Commission did not deprive Texas Telephone of due process.

Designation Order

Certificate Requirement

The Commission granted Western Wireless’s application for state universal service funding without requiring Western Wireless to obtain a CCN. The district court concluded that this decision was in error. Section 54.001 of PURA generally requires a person to obtain a CCN in order to provide basic local telecommunication services. Tex. UtiLCode Ann. § 54.001 (West 1998). However, section 51.003 of PURA exempts a provider of CMRS from the provisions of PURA except where otherwise expressly provided by statute. Id. § 51.003 (West 1998) (emphasis added).

The Commission, in its Designation Order, found that Western Wireless is a CMRS provider that provides services primarily in rural areas of the United States. Further, the Commission concluded that Western Wireless is exempt from the requirements of PURA because Western Wireless is a CMRS provider. See id. § 51.003(5).

Texas Telephone asserts that the district court correctly decided that the Commission had erred by not requiring Western Wireless to obtain a CCN. Texas Telephone contends that the exemption for CMRS providers does not apply to the certification requirement because PURA expressly provides otherwise. Section 54.001 of PURA applies to persons wanting to provide telephone service, and section 11.003(14) of PURA defines a person as including a corporation. See id. §§ 54.001, 11.003(14) (West Supp. 2004-05). From this, Texas Telephone surmises that because Western Wireless is a corporation, the term person includes Western Wireless. Consequently, Texas Telephone insists Western Wireless must obtain a CCN before providing basic local telecommunications services. Further, Texas Telephone asserts that because section 11.003(14) of PURA specifically excludes electric cooperatives from the definition of person but does not exclude CMRS providers from the definition, then the principle of expressio unius est exclu-sio alterius implies that CMRS providers are included in the definition of a person and are, therefore, required to obtain a CCN in order to provide basic local telecommunication service. See Dallas Merchant’s & Concessionaire’s Ass’n v. City of Dallas, 852 S.W.2d 489, 493 n. 7 (Tex.1993).

We disagree with Texas Telephone’s position. The Commission determined that Western Wireless is a CMRS provider. Section 51.003 of PURA specifically excludes providers of CMRS from the provisions of PURA unless otherwise expressly provided. Tex. Util-Code Ann. § 51.003. CMRS providers are not expressly included in the sections of PURA delineating the CCN requirements. See id. §§ 54.001-.003 (West 1998). On the contrary, in section 54.003, PURA again specifically exempts telecommunications utilities from the CCN requirement in order to provide CMRS. Id. § 54.003. Because the district court erroneously concluded that the Commission erred by not requiring Western Wireless to obtain a CCN to provide basic service, we reverse the decision of the district court.

Public Interest

The district court also concluded that the Commission applied an incorrect standard when determining whether granting Western Wireless’s application for universal service funding was in the “public interest.” For rural areas served by a rural telephone company, the Commission may designate an additional carrier under federal law or an additional provider under state law if the Commission finds that the designation is in the public interest. See 47 U.S.C.A. § 214(e)(2); 47 C.F.R. § 54.201(c) (2003); 16 Tex. Admin. Code §§ 26.417(d)(2), .418(e)(2) (2004). Although a “public interest” determination is not necessary for a competing company to provide service in an area already served by an incumbent telecommunications service provider, a “public interest” finding is necessary to receive subsidies from the state and federal universal service funds. In other words, the Commission determines whether a provider has satisfied all the requirements necessary to receive the state and federal subsidies but does not determine whether a company may, on its own and without government financial support, decide to compete in an area already served by an incumbent telecommunications provider.

None of the statutes requiring a public interest analysis specify what factors are required to be considered for the public interest requirement to be satisfied. However, public interest determinations often involve consideration of how the action will impact consumers. See,, e.g., Federal Power Comm’n v. Texaco, Inc., 417 U.S. 380, 392, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (protecting consumers from high rates serves public interest); Continental Oil Co. v. Federal Power Comm’n, 378 F.2d 510, 532 (5th Cir.1967) (public interest has strong emphasis on consumer interest). Further, section 11.002 of PURA states that the Act was enacted to protect the public interest inherent in the service of public utilities and that the purpose of the title is to establish a system to assure rates that are just and reasonable to consumers and utilities. Tex. Util.Code Ann. § 11.002 (West Supp.2004-05).

Public interest determinations also involve considering how actions will affect competition. See, e.g., Otter Tail Power Co. v. United States, 410 U.S. 366, 374, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) (policy of Federal Power Act to maintain competition to maximum extent possible consistent with public interest); Tex. Util.Code Ann. § 51.001 (West Supp.2004-05) (to encourage development of competitive telecommunications environment, new rules must be formulated to protect public interest). Competition is generally presumed to be in the public interest and not contrary to it. American Transfer & Storage Co. v. Interstate Commerce Comm’n, 719 F.2d 1283, 1300 (5th Cir.1983). Further, the Federal Telecommunications Act was amended to promote competition among telecommunication providers to obtain lower prices and better services for consumers.

Public interest determinations are dependent upon the special knowledge and expertise of the Commission. See Amtel Communications, Inc. v. Public Util. Comm’n, 687 S.W.2d 95, 99 (Tex. App.-Austin 1985, no pet.). It is the Commission’s task to assess competing policies and determine what is in the public interest. Id. The legislature intended the Commission to make whatever accommodations and adjustments necessary when determining what is in the public interest. See id. at 101. In balancing these considerations, the agency is required to exercise its expertise to further the overall public interest. See Public Util. Comm’n v. Texland Elec. Co., 701 S.W.2d 261, 266 (Tex.App.-Austin 1985, writ ref'd n.r.e.).

It is within the Commission’s authority to decide what public interest means in a particular case. See Hammack v. Public Util. Comm’n, 131 S.W.3d 713, 723 (Tex.App.-Austin 2004, pet. filed) (Commission may decide what statutory-standard of “need” means in specific situations). The Commission has wide discretion in determining what factors to consider when deciding whether something serves the public interest. See El Paso Elec. Co. v. Public Util. Comm’n, 917 S.W.2d 846, 856 (Tex.App.-Austin 1995), judgm’t withdrawn and cause dism’d by agr., 917 S.W.2d 872 (Tex.App.-Austin 1996) (Commission given wide discretion to determine what property is “useful” under statute). Because administrative agencies are given their statutory powers with a view to achieving legislative purposes more fully and efficiently through the agency’s specialized judgment, knowledge, and expertise, the methods chosen by the agency and its interpretation of the statute it is required to administer are entitled to due respect. Hammack, 131 S.W.3d at 723; cf. Federal Communications Comm’n v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S.Ct. 1266, 67 L.Ed.2d 521 (1981) (Interstate Commerce Commission’s determination of how public interest is best served is entitled to substantial judicial deference).

Texas Telephone asserts that the Commission misconstrued the public interest standard. Specifically, Texas Telephone alleges that the public interest analysis must include an analysis of the impact of an additional carrier on the incumbent rural carrier because, they argue, the addition of a second carrier might adversely impact existing services in rural areas and, therefore, customers in rural areas might be negatively impacted. As proof of their assertion that the Commission applied an incorrect standard, Texas Telephone cites to Findings of Fact 71 to 73 in the Designation Order in which the Commission concluded that prohibiting Western Wireless’s ability to provide telecommunications service because of the effect on incumbent providers would be contrary to the universal service goals of the Federal Communications Act.

In further support of their assertion that a public interest analysis must involve consideration of the impact on incumbent carriers, Texas Telephone points to three orders issued by the FCC in which the FCC granted three companies eligible carrier statuses in certain portions of the incumbent carriers’ study areas. See Federal-State Joint Bd. on Universal Service, Virginia Cellular, LLC Petition for Designation as an Eligible Telecommunications Carrier in the Commonwealth of Virginia, Memorandum Opinion and Order, CC Docket No. 96-45, 19 FCC Red 1563 (rel. Jan. 22, 2004) (“Virginia Cellular Order”)-, Federal-State Joint Bd. on Universal Service, In re Highland Cellu lar, Inc. Petition for Designation as an Eligible Telecommunications Carrier in the Commonwealth of Virginia, Memorandum Opinion and Order, CC Docket No. 96-45, 19 FCC Red 6422 (rel. April 24, 2004) (“Highland Cellular Order”); Federal-State Joint Bd. on Universal Service, Advantage Cellular, Inc. Petition for Designation as an Eligible Telecommunications Carrier in the State of Tennessee, Order, CC Docket No. 96-45, 19 FCC Red 20985 (rel. Oct. 22, 2004) (‘‘Advantage Cellular Order”). The FCC did not grant the companies the eligibility statuses they sought for certain portions of the rural incumbent carriers’ study areas because granting the companies eligible carrier statuses would place the incumbent carriers at a competitive disadvantage. Virginia Cellular Order at 19 FCC Red 1579-80, ¶ 35; Highland Cellular Order at 19 FCC Red 6436-87, ¶¶ 31-82; Advantage Cellular Order at 19 FCC Red 20995-96, ¶ 24. The FCC concluded that granting the eligibility statuses in the portions denied would be against the public interest due to the possibility of “creamskimming.” Virginia Cellular Order at 19 FCC Red 1579-80, ¶ 35; Highland Cellular Order at 19 FCC Red 6436-37, ¶¶ 31-32; Advantage Cellular Order at 19 FCC Red 20995-96, ¶ 24. Creamskimming occurs when competitors “seek to serve only the low-cost, high-revenue customers in a rural telephone company’s study area.” Advantage Cellular Order at 19 FCC Red 20993, ¶20. However, the Commission did grant eligible carrier statuses to the companies in areas where creamskimming would not occur and concluded that granting the eligibility statuses in those areas was in the public interest. Based on the three FCC orders and the Commission’s Findings of Fact, Texas Telephone asserts that a public interest analysis must include the impact an additional carrier will have on an incumbent.

When describing the public interest analysis for a rural study area, the FCC listed the following factors as relevant to a consideration of whether the addition of another carrier was in the public interest:

[T]he benefits of increased competitive choice, the impact of the designation on the universal service fund, the unique advantages and disadvantages of the competitors service offering, any commitments made regarding quality of telephone service, and the competitive [eligible carrier’s] ability to satisfy its obligation to serve the designated service areas within a reasonable time frame.

Virginia Cellular Order at 19 FCC Red 1575-76, ¶ 28; Highland Cellular Order at 19 FCC Red 6432, ¶ 22; Advantage Cellular Order at 19 FCC Red 20992, ¶ 18. While the factors listed by the FCC allow for consideration of the impact on incumbents, the factors do not require it. Further, a review of the record indicates that the Commission did consider the impact granting Western Wireless’s designations would have on incumbents.

In its public interest analysis, the Commission concluded that the analysis is guided by the fundamental goal of preserving and advancing universal service. Further, the Commission concluded the public interest analysis is guided by the goal of ensuring the availability of quality telecommunication services at affordable rates and the goal of deploying advanced telecommunication services to all parts of the nation.

In making its determination, the Commission considered the effects of approving Western Wireless’s designations on the competitiveness of the local telephone market and on the benefits to consumers. Specifically, in the Findings of Fact section of the Designation Order, the Commission found the following:

64. [Western Wireless] has committed to advertising the availability of supported services in a manner that fully informs the general public within the designated service areas.
66. The benefits competition is hoped to bring include lower prices, higher quality, and the rapid development of new telecommunications technologies.
69. The availability of [Western Wireless] as a second provider, which might not occur in the absence of the requested designations, will bring a choice of providers to consumers in rural areas, many of whom are now served by a single provider.
70. The choice of providers can reasonably be expected to provide consumers with greater range of service choices and pricing driven by the market place, rather than the monopolistic needs of a single provider.

The Commission also considered the impact on incumbents of granting Western Wireless’s designation applications. Specifically, in the Findings of Fact section of the Designation Order, the Commission found the following:

74. The evidence in this case does not prove that any affected area is un•able to support more than one [eligible carrier.]
75. Statutory tools are available to the Commission, including the Additional Financial Assistance provisions of P.U.C. Subst. R. 26.408, to be used, if necessary and appropriate, to ameliorate the effects on incumbent providers of [Western Wireless’s] designation as an [eligible carrier] and [eligible provider.]

After considering the Congressional directives to both provide affordable phone service and to increase competition, the Commission concluded the public interest would be served by granting the designation application and concluded having a second provider would benefit consumers. Specifically, the Commission found the following:

65. The Texas Legislature and the United States Congress have clearly articulated a policy in favor of competitive telecommunications choices for citizens in all areas of the country — not just in urban areas.
81. The public interest will be served by granting Western Wireless’s applications for designation as an [eligible carrier] and [eligible provider.]

The Commission considered the competitiveness of the local market, the benefits to consumers of having an additional provider, and whether the areas in question will be able to support the incumbent and an additional carrier and provider. When considering the impact on incumbents, the Commission also considered that monetary assistance is available to incumbents to ameliorate the effects of Western Wireless being designated as an eligible carrier and provider. The Commission did all that it was required to do: it weighed the potential benefits and the potential harms of granting Western Wireless’s eligibility applications. Further, the Commission has wide discretion when determining if an action is in the public interest. See El Paso Elec. Co., 917 S.W.2d at 856. Because we believe the district court erred when it found that the Commission improperly concluded approving the designations for Western Wireless would be in the public interest, we will reverse that portion of the district court’s decision.

Southwest Study Area

The district court also reversed the Designation Order issued by the Commission because the Commission granted the application for state and federal universal funding with respect to the Texas portion of Southwest’s study area without requiring Western Wireless to show it could serve the remaining Arkansas portion of Southwest’s study area. Texas Telephone contends that another company cannot be designated as eligible to receive universal funds in an area served by a rural telephone company unless the company seeks to serve the entire study area of the rural telephone company. Further, Texas Telephone alleges Western Wireless should have applied to serve Southwest’s entire study area and not just the portion that is present in Texas.

In order for an applicant to be designated as eligible to receive state or federal universal service support in an area served by a rural telephone company, the applicant must seek to serve the entire service area of the rural telephone company. See 47 U.S.C.A. § 214(e)(1); 16 Tex. Admin. Code § 26.417(f)(1)(B)(I) (2004). However, in a situation that is factually similar to the one before us, the FCC considered how to designate Western Wireless as an eligible carrier in the study area of a rural local exchange earner that crossed over state borders. In re Federal-State Joint Bd. on Universal Service: Western Wireless Corp. Petition for Designation as an Eligible Telecommunications Camer in the State of Wyoming, Memorandum Opinion and Order, CC Docket No. 96-45, 16 FCC Red. 48, ¶¶ 28-24 (rel. December 26, 2000) (“Wyoming Order ”). The FCC concluded that the state commission’s ability to designate did not reach beyond the state’s borders. Id. The FCC also concluded that Congress did not envision that state commissions would have to obtain permission from another state before designating an applicant as an eligible carrier for an area within the designating state’s borders. In addition, the FCC endorsed the Commission’s decision in this case not to require Western Wireless to apply for eligibility designations in Arkansas before approving its eligibility applications in Texas. Id. at ¶ 24 n. 72.

Similarly, in the Designation Order, the Commission concluded that Congress gave it the power to designate eligible carriers only within Texas. Further, the Commission concluded that requiring Western Wireless to apply for eligibility designations in Arkansas would deprive the Commission of its independent authority to approve eligibility applications for areas that are within the boundaries of Texas. The Commission did exactly what it could do within the confines of this state: it granted Western Wireless’s designations for the areas in Texas but also required a commitment to serve the entire study area. The maximum reach of the Commission extends only to the Texas border, and any designation issued by the Commission would have no effect in Arkansas. See State of Cal. v. Copus, 158 Tex. 196, 309 S.W.2d 227, 229 (1958) (holding that state statutes do not have extraterritorial effect).

Because the district court erred by reversing the Designation Order, we sustain Western Wireless’s points that it did not need to obtain a CCN in order to provide local service, that the Commission’s granting of the eligibility designations it requested served the public interest, and that it did not have to seek eligibility designations in Arkansas before being approved to receive universal service funds in Texas.

Compliance Order

In the Designation Order’s Finding of Fact 44, the Commission concluded that the $14.99 rate did not satisfy the 150% requirement. However, in the same order, the Commission set up a compliance docket to determine whether Western Wireless would be in compliance with Commission rules before receiving universal fund disbursements. Among other items to consider, the Commission directed Western Wireless to file a tariffed service rate that complied with the 150% requirement.

After the Designation Order was issued, rule 26.25 went into effect. See Tex. Admin. Code § 26.25 (2002), repealed by 27 Tex. Reg. 9568 (2002). This new rule listed requirements that must appear on telephone bills in order for customers to be able to compare the prices charged by different providers. Id. The rule required providers to include all of the fees and surcharges in the amount charged for basic local service. Western Wireless, in the compliance proceeding, again filed the $14.99 rate. Texas Telephone filed a list of concerns with the Commission including a complaint that the $14.99 rate did not comply with the 150% requirement. However, the Commission staff and the Commission’s Policy Development Division both agreed that the $14.99 rate did fall within the 150% requirement when all the factors listed in rule 26.25 were considered. Specifically, the Commission found that by including the single line charge in the incumbent’s rates for basic local service, as listed in the rule, Western Wireless’s rate fell within the 150% requirement.

After the Commission’s Policy Development Division issued its notice of approval, Texas Telephone filed a list of exceptions to the approval and again asserted that the $14.99 rate did not comply with the 150% requirement. The Commission then agreed to consider Texas Telephone’s exceptions in an open meeting and notified both Western Wireless and Texas Telephone of its intention to do so. Both Western Wireless’s and Texas Telephone’s counsel attended the open meeting. After the open meeting, the Commission signed the Compliance Order and approved Western Wireless’s tariffed filing, which included the $14.99 rate.

In its district court suit for judicial review, Texas Telephone contended that the finding of fact in the Compliance Order stating that the $14.99 did comply with the 150% requirement was contrary to Finding of Fact 44 in the Designation Order. The district court concluded that the Commission violated section 2001.1775 of the Administrative Procedures Act, which prohibits an agency from modifying its findings in a contested case after judicial review of the case has begun, by attempting to alter a finding of fact in an order already on appeal. See Tex. Gov’t Code Ann. § 2001.1775 (West 2000). In addition, the district court concluded that the Commission engaged in ad hoc adjudication by attempting to change the requirements of rule 26.417(c)(1)(B) without applying the proper rulemaking procedures.

However, these arguments ignore the fact that a new rule was promulgated between the time of the Designation Order and the Compliance Order. Agencies may revisit their prior adjudicated orders when changed circumstances occur. South Tex. Indus. Servs., Inc. v. Texas Dep’t of Water Res., 573 S.W.2d 302, 304 (Tex.Civ.App.-Austin 1978, writ refd n.r.e.). An agency has exclusive original jurisdiction to determine the question of changed circumstances. Id. at 304. The new rule changed the circumstances under which the original finding of fact occurred. The Commission correctly considered the effect that the new rule had on the proposed $14.99 rate.

Further, the Designation Order approved Western Wireless’s eligibility application and was not meant to be the final word on the subject of compliance because the order specifically created a compliance docket to determine, among other things, whether the tariffs proposed by Western Wireless would comply with the Commission’s rules. The finding in the Designation Order was a preliminary finding and was unnecessary for Western Wireless to be designated as an eligible carrier and provider. As such, it does not have prece-dential value, and the Commission’s new finding of fact does not violate section 2001.1775 of the Administrative Procedure Act. Cf. Central Power & Light Co. v. Public Util. Comm’n, 36 S.W.3d 547, 562 (Tex.App.-Austin 2000, pet. denied) (superfluous findings are analogous to immaterial jury findings, which courts may generally disregard); Texas Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 453 (Tex.1984), superseded by statute on other grounds (some of Commission’s findings were immaterial, irrelevant, and ignored by the court).

The district court also concluded that the Commission denied Texas Telephone due process because the Commission adjudicated a contested issue of fact without affording it the notice and hearing required in a contested case. However, nothing in the record indicates that any party requested that this case be treated as a contested case. In addition, Texas Telephone was able to file a list of exceptions regarding whether Western Wireless was in compliance with the Commission’s rules and was able to present arguments at the public hearing. Texas Telephone was provided adequate notice of the public hearing, was present at the public hearing, and was able to express its concerns. It was not denied any due process rights.

Because the district court erred by declaring the Compliance Order void and by remanding the case to the Commission, we reverse the decision of the district court.

CONCLUSION

Because we find that the trial court erred in reversing both the Designation Order and the Compliance Order, we sustain Western Wireless’s points that Western Wireless was not required to obtain a CCN, that the Commission did not apply an incorrect public interest analysis, that Western Wireless did not need to obtain an eligibility designation in Arkansas, that the Commission correctly considered a new rule in determining whether the $14.99 rate satisfied all necessary requirements, and that Texas Telephone was not deprived of due process. We, therefore, reverse the district court’s judgment and render judgment affirming the Commission’s two orders.

Justice KIDD Not Participating.

      . The definition of commercial mobile service reads, in relevant part, as follows:
      [A]ny mobile service (as- defined in section 153 of this tide) that is provided for profit and makes interconnected service available (A) to the public or (B) to such classes of eligible users as to be effectively available to a substantial portion of the public, as specified by regulation by the Commission
      47 U.S.C.A. § 332(d)(1) (West 2001).
      The definition of mobile service reads, in relevant part, as follows:
      [A] radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves, and includes (A) both one-way and two-way radio communication services, (B) a mobile service which provides a regularly interacting group of base, mobile, portable, and associated control and relay stations (whether licensed on an individual, cooperative, or multiple basis) for private one-way or two-way land mobile radio communications by eligible users over designated areas of operation, and (C) any service for which a license is required in a personal communications service established pursuant to the proceeding entitled "Amendment to the Commission’s Rules to Establish New Personal Communications Services" (GEN Docket No. 90-314; ET Docket No. 92-100), or any successor proceeding.
      47 U.S.C.A. § 153(27) (West 2001).

      . A "study area” is the term used to describe the geographical area a rural telephone company serves. 47 U.S.C.A. § 214(e)(5) (West 2001). For rural telephone companies, a study area is the same as a service area. Id,

      . Finding of Fact number 44 in the Designation Order had preliminarily determined that Western Wireless’s $14.99 base-rate did not comply with the 150% requirement in the Commission’s rules.

      . It is worth noting that Texas Telephone does not contest Western Wireless’s classification as a CMRS provider. They only dispute what effect that classification has on the requirement to obtain a CCN.

      . Texas Telephone also contends that the Commission misconstrued the burden of proof for eligibility designations. Texas Telephone asserts that the burden of proof in a public interest determination is on the applicant and asserts that the incumbent is not required to show that the market will be harmed if the designation is granted. Federal-State Joint Bd. on Universal Service, Virginia Cellular, LLC Petition for Designation as an Eligible Telecommunications Carrier in the Commonwealth of Virginia, Memorandum Opinion and Order, CC Docket No. 96-45, 19 FCC Red 1563, 1574-75, ¶ 26 (rel. Jan. 22, 2004); Federal-State Joint Bd. on Universal Service, In re Highland Cellular, Inc. Petition for Designation as an Eligible Telecommunications Carrier in the Commonwealth of Virginia, Memorandum Opinion and Order, CC Docket No. 96-45, 19 FCC Red 6422, 6431, ¶20 (rel. April 24, 2004); Federal-State Joint Bd. on Universal Service, Advantage Cellular, Inc. Petition for Designation as an Eligible Telecommunications Carrier in the State of Tennessee, Order, CC Docket No. 96-45, 19 FCC Red 20985, 20991, ¶ 16 (rel. Oct. 22, 2004). Texas Telephone urges that Finding of Fact 74, which stated that the evidence did "not prove that any affected area” was "unable to-, support more than one” carrier, reveals that the Commission incorrectly required the incumbents to prove that the additional designation was not in the public interest rather than requiring Western Wireless to prove that its designation was in the public interest. Texas Telephone asserts that by placing the burden of proof on Texas Telephone, the Commission prejudiced the incumbents’ substantial rights, which is a clear error of law requiring a reversal of the Commission’s decision. See Texas Dep’t of Transp. v. Jones Bros. Dirt & Paving Contractors, 24 S.W.3d 893, 898 (Tex.App.-Austin 2000), rev’d on other grounds, 92 S.W.3d 477 (Tex.2002) ("court may reverse an agency determination only if substantial rights of appellant have been prejudiced”).
      However, because Texas Telephone did not raise the burden argument in their motion for rehearing before the Commission or in their petition for judicial review in the district court, they have failed to preserve the argument. Brown v. Texas Dep’t of Ins., 34 S.W.3d 683, 687 (Tex.App.-Austin 2000, no pet.); see also Carrizales v. Texas Dep’t of Protective and Regulatory Servs., 5 S.W.3d 922, 925 (Tex.App.-Austin 1999, pet. denied) (party may not raise an issue for first time on appeal). Further, even if the claim were not waived, there is no indication that the Commission improperly reversed the burden of proof. Rather, Finding of Fact 74 indicates that the Commission rejected Texas Telephone’s assertions of harm to the incumbent but does not indicate that the burden of proof had been changed.

      . Findings of Fact 71 to 73 read as follows:
      71. Prohibiting [Western Wireless’s] ability to provide telecommunications service because of the alleged effect on incumbent providers would violate section 253(a) of the Act.
      72. Subjecting [Western Wireless] to a public interest test based in part on the effect of the designation [upon] the incumbent providers is not competitively neutral, in that it favors the incumbent provider.
      73. Prohibiting [Western Wireless’s] ability to provide telecommunications service because of the alleged effect on incumbent providers would be contrary to the universal service goals of section 254(b) of the Act.

      . Rule 26.408 provides incumbent carriers serving rural and high-cost areas with additional financial support to allow carriers to provide basic services at reasonable rates. See Tex. Admin. Code § 26.408 (2004).

      . For a rural telephone company, the service area is the company’s study area unless the state commission and the FCC both establish a different definition. See 47 U.S.C.A. 214(e)(5).

      . Because we are reversing the decision of the district court and affirming the decision of the Commission, we need not address Western Wireless's claim that Texas Telephone's appeal was not filed within the time limit prescribed by the Administrative Procedure Act or its claim that the district court erred by granting Texas Telephone’s declaratory judgment action when the relief Texas Telephone requested was the same as the relief requested under the Administrative Procedure Act.