author: Justice WILLETT

text:
    TEXAS INDUSTRIAL ENERGY CONSUMERS, Petitioner, v. CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, and Public Utility Commission of Texas, Respondents.
    No. 08-0727.
    Supreme Court of Texas.
    Argued Oct. 6, 2009.
    Decided Oct. 22, 2010.
    Rehearing Denied Dec. 3, 2010.

      Jonathan Day, Lino Mendiola, Caren Elizabeth Pinzur, Meghan E. Griffiths, Andrews Kurth LLP, Austin TX, for Texas Industrial Energy Consumers.
    Thomas Lane Brocato, Lloyd Gosselink Rochelle & Townsend, P.C., Austin TX, for Gulf Coast Coalition of Cities.
    Scott E. Rozzell, CenterPoint Energy Inc., Houston TX, Robert J. Hearon Jr., Ron H. Moss, Graves Doughery Hearon & Moody, PC, Austin TX, Harris S. Leven, CenterPoint Energy Inc., Associate General Counsel, Houston TX, for CenterPoint Energy Houston Electric LLC.
    Richard P. Noland, James M. Bushee, Sutherland Asbill & Brennan LLP, Austin TX, for Occidental Power Marketing, L.P.
    Bryan L. Baker, Office of the Attorney General, Amalija ‘Amy’ J. Hodgins, Austin TX, for State of Texas.
    Suzanne Antley, Assistant Attorney General, Brian Alan Prestwood, Assistant Attorney General, Attorney General Greg W. Abbott, Attorney General of Texas, Clarence Andrew Weber, First Assistant Attorney General, David S. Morales, Office of the Attorney General of Texas, Deputy First Assistant Attorney General, Barbara Bryant Deane, Assistant Attorney General, David Preister, Office of the Attorney General, Elizabeth R.B. Sterling, Envtl. Prot. & Admin. Law Div., Office of the Attorney General, Austin TX, for Public Utility Commission of Texas.
   Justice WILLETT

delivered the opinion of the Court.

This appeal concerns a Public Utility Commission order setting a “competition transition charge” under Chapter 39 of the Utilities Code. The order followed a true-up proceeding initiated by Center-Point Energy Houston Electric, LLC to recover from ratepayers its investments “stranded” by Texas’s transition to a less regulated, more competitive retail electricity market. Groups representing electricity consumers challenged the order, contesting CenterPoint’s (1) recovery of interest, and (2) recovery of costs of a valuation panel. The court of appeals affirmed the PUC’s order in favor of Cen-terPoint. We affirm the court of appeals’ judgment.

I. Background

A. Overview of Relevant Provisions of Chapter 39

The Legislature in 1999 overhauled the Public Utility Regulatory Act (PURA or Act) to create a “fully competitive electric power industry” in Texas. As part of this restructuring, utilities were required, not later than January 1, 2002, to split into three distinct units: (1) a power-generation company, (2) a retail electric provider, and (3) a transmission and distribution utility. After that date, known as the date of consumer choice, retail consumers could choose among competing retail providers.

As for the transmission and distribution utility, its rates continue to be regulated by the PUC. This unit also continues to provide metering services and to charge retail electric providers for “nonbypassable delivery charges” under rates approved by the Commission. The transmission and distribution utility may also, at the retail provider’s request, bill retail customers directly.

1. Stranded Costs

The Legislature recognized that utilities had made investments in power-generation assets that produced a reasonable return under the existing regulated environment “but might well become uneconomic and thus unrecoverable in a competitive, deregulated electric power market.” The Act thus allows utilities to recover these “stranded costs,” which consist generally of “the portion of the book value of a utility’s generation assets that is projected to be unrecovered through rates that are based on market prices.”

The Act deregulated the market in phases. Retail rates were frozen from September 1,1999 until January 1, 2002.

PURA Section 39.201 directed transmission and distribution utilities to file, on or before April 1, 2000, proposed tariffs that included nonbypassable delivery charges to retail electric providers. It also directed the PUC to approve rates as of January 1, 2002. The nonbypassable delivery charges included a “competition transition charge” (CTC) based on an estimate of stranded costs projected to exist at the end of the freeze period on December 31, 2001. The CTC is “nonbypassa-ble” in “that with limited exceptions, all retail electric customers in an existing utility’s service area will pay charges to allow that utility to recover stranded costs regardless of whether those customers purchase their electricity from that utility, switch to one of its competitors, or generate their own electricity.” In estimating stranded costs, utilities were required to use the “ECOM” model, an estimation model earlier used in a 1998 PUC report to the Texas Senate. Section 39.201 allowed a utility to recover estimated stranded costs at any time after the start of the freeze period on September 1, 1999, by issuing bonds and using a “transition charge” (TC) to service the bonds, a process known as “securitization” or “securiti-zation financing,” or by imposing a CTC. But no such charges were imposed because the PUC concluded that under the ECOM model no utility would incur stranded costs.

Under Section 39.262, utilities were required, after January 10, 2004, to file with the PUC a reconciliation of stranded costs and the previous estimate of stranded costs that had been used in determining rates under Section 39.201. By this time, the utility had been unbundled into a transmission and distribution utility, a generating company, and a retail electric provider. Section 39.262 further directed the PUC to conduct a “true-up proceeding” and enter a final order adjusting the CTC to reflect the ultimate valuation of stranded costs. “If, based on the proceeding, the competition transition charge is not sufficient, the commission may extend the collection period for the charge or, if necessary, increase the charge.” The adjusted CTC is applied to the nonbypassa-ble delivery rates of the transmission and distribution utility.

For purposes of finalizing the measure of stranded costs, a power-generation company must quantify its stranded costs using “one or more” of four valuation methods specified in the Act: (1) the sale of assets method, (2) the stock valuation method, (3) the partial stock valuation (PSV) method, and (4) the exchange of assets method. If the PSV method is used, the PUC may convene “a valuation panel of three independent financial experts to determine whether the percentage of common stock sold is fairly representative of the total common stock equity or whether a control premium exists for the retained interest.”

2. Non-Stranded Cost Adjustments at the True-Up Proceeding

In addition to adjustments for stranded costs, the PUC is directed at the true-up proceeding to make other adjustments to the nonbypassable delivery charges of the transmission and distribution utility. These adjustments are made to what are sometimes labeled non-stranded costs, and can result in an increase or decrease in the amount of or collection period of the CTC.

From January 1, 2002, until January 1, 2007, affiliated retail electric providers were required to charge rates six percent below average rates that were in effect on January 1, 1999, subject to certain adjustments including a fuel factor. This price is known as the “price to beat.” After January 1, 2002, each affiliated power-generation company is required to file a final fuel reconciliation that calculates a final fuel balance as of December 31, 2001.

To foster competition, each utility or its unbundled power-generation company was required, at least 60 days before January 1, 2002, to conduct a “capacity auction” that sold entitlements to at least 15 percent of the utility’s generation capacity. The obligation continued until the earlier of 60 months after the date customer choice is introduced or the date the PUC determined “that 40 percent or more of the electric power consumed by residential and small commercial customers within the affiliated transmission and distribution utility’s certificated service area before the onset of customer choice is provided by nonaffiliated retail electric providers.”

Under Section 39.262(d), the Act directs the affiliated power-generation company at the true-up proceeding to reconcile and either bill or credit the transmission and distribution utility for the net sum of (1) the former integrated utility’s final fuel balance, and (2) the capacity auction true-up balance, which consists of the difference between the price of power realized at the capacity auctions and the power-cost projections used in the ECOM model.

Section 39.262(e) directs the affiliated retail electric provider at the true-up proceeding to credit the affiliated transmission and distribution utility for “any positive difference between the price to beat established under Section 39.202, reduced by the nonbypassable delivery charge established under Section 39.201, and the prevailing market price of electricity during the same time period.” This credit is known as the “retail clawback.”

Section 39.262(f) directs the PUC at the true-up proceeding to modify the transmission and distribution utility’s nonbypassa-ble rates to reflect adjustment to the amount of “regulatory assets,” a special category of assets we have described as “essentially bookkeeping entries.”

B. Proceedings Below

Pursuant to Chapter 39, Reliant Energy, Inc., an integrated electric utility, separated into three entities:

CenterPoint Energy Houston Electric, LLC — the transmission and distribution utility,
Reliant Energy Retail Services, LLC — the retail electric provider, and
Texas Genco, LP — the power-generation company.

These entities filed an application with the PUC to determine stranded costs and other true-up balances pursuant to Section 39.262. In this proceeding (the true-up proceeding), the PUC determined that CenterPoint was entitled to recover approximately $2.3 billion in stranded costs and other non-stranded costs. Center-Point then initiated parallel proceedings to recover these costs either through securiti-zation or a CTC.

The PUC approves securitization financing with a financing order. CenterPoint filed an application for a financing order, and in that proceeding the PUC issued an order in 2005 allowing CenterPoint to sec-uritize most of the previously determined costs, including stranded costs, carrying costs on the stranded costs, and certain regulatory assets, but held that certain non-stranded costs were not “qualified costs” that could be securitized.

In the separate CTC proceeding under review in today’s case, CenterPoint sought a CTC that would cover the costs it was not allowed to securitize. In July 2005, the PUC issued an order (the Order) determining that CenterPoint could recover approximately $570 million in non-stranded costs through a CTC, to be imposed over a 14-year period. This amount consisted of a positive capacity auction true-up amount, net of a negative final fuel adjustment, a downward adjustment for the retail clawback, and an additional downward adjustment to reflect the retention of deferred federal income taxes. The final CTC amount included accrued interest on the true-up balance. The Order further allows CenterPoint to receive interest on the unrecovered CTC balance over the 14-year recovery period. One commissioner dissented from the part of the Order allowing CenterPoint to recover interest on the true-up balance under PUC Rule 25.263(( )(3), discussed below.

The PUC also allowed CenterPoint to recover certain rate-case expenses, including a roughly $5.2 million fee charged by J.P. Morgan Securities Inc. and its law firm. This fee pertained to services by three J.P. Morgan bankers as the valuation panel convened by the PUC under Section 39.262(h)(3), after Texas Genco elected to rely on the PSV method to value its generating assets.

Two consumers groups, Texas Industrial Energy Consumers (TIEC) and Gulf Coast Coalition of Cities (GCCC), intervened in the CTC proceeding. Both challenged CenterPoint’s recovery of interest, and TIEC additionally challenged Center-Point’s recovery of the valuation-panel fee. They appealed the Order to state district court. The trial court agreed with the consumer groups that CenterPoint could not recover interest on the CTC balance from ratepayers because this Court had invalidated the PUC rule allowing such recovery in CenterPoint Energy, Inc. v. Public Utility Commission. The trial court further held that CenterPoint could not recover the valuation-panel fee.

The court of appeals reversed the trial court’s judgment and rendered judgment affirming the PUC’s Order.

II. Discussion

A. Interest on the CTC True-Up Balance

The PUC allowed CenterPoint to recover interest on the CTC balance under its Rule 25.263(0(3), which at the time provided:

The TDU [transportation and distribution utility] shall be allowed to recover, or shall be liable for, carrying costs on the true-up balance. Carrying costs shall be calculated using the utility’s cost of capital established in the utility’s UCOS [unbundled cost-of-serviee] proceeding, and shall be calculated for the period of time from the date of the true-up order until fully recovered.

The consumer groups argue that interest on the true-up balance is not allowed because we invalidated Rule 25.263(Z )(3) in its entirety in CenterPoint Energy. The PUC and CenterPoint argue that we only invalidated the timing portion of the Rule — the date that interest begins to accrue. We agree with the PUC and Cen-terPoint. Any fair reading of our Center-Point Energy decision makes clear we were focused on the date, not the rate.

We stated in CenterPoint Energy that “Rule 25.263(0(3) is invalid,” and we reasonably read that statement in context. We explained:

No one disputes that the Legislature intended electric utilities to recover carrying costs on stranded costs to compensate for the financing costs incurred during the stranded cost recovery period. Nor does anyone dispute that prior to deregulation, carrying costs on investments in generation plants were included in rates. The only issue before us is the date from which carrying costs may be recovered once deregulation commenced: January 1, 2002, which was the first day of deregulation, or two or more years later, at the end of final true-up proceedings.

We did not hold utilities cannot recover interest on their stranded costs or other costs. Indeed, we held that the rule was too parsimonious because it did not provide for the recovery of interest for the period between January 1, 2002, the date consumer choice commenced, and the date of the final true-up order. The basis of our holding was that failure to allow the recovery of interest during this period would fail to compensate the utilities fully for their stranded costs that existed on December 31, 2001, the last day of the freeze period. “A two- or three-year gap in recovery of carrying costs would not permit generation companies full recovery of their stranded costs as the Legislature intended.” We further noted that in allowing securitization to reduce stranded costs, the Act specifically states that the purpose of securitization is to enable utilities to use this financing technique “to recover regulatory assets and stranded costs, because this type of debt will lower the carrying costs of the assets.”

We invalidated Rule 25.263(0(3) only insofar as it picked the wrong start date for the accrual of carrying costs:

We conclude that the Commission’s construction of chapter 39 was incorrect regarding the date as of which stranded costs are to be determined.... Because the Commission’s rule is based on an incorrect construction of the Act in this regard, it is infirm.

We did not hold broadly that the PUC could not allow utilities to recover interest on the CTC balance.

The consumer groups argue that even if the Court only invalidated the timing element of Rule 25.263(Z )(3) — the date interest begins to accrue — that portion of the Rule is not severable, and the whole Rule is therefore invalid. The consumer groups provide no persuasive reason why the PUC cannot follow the Court’s directive regarding the accrual date but otherwise enforce its Rule by allowing the recovery of interest. The Rule is part of Chapter 25 of Title 16 of the Texas Administrative Code, covering substantive rules of the PUC applicable to electric service providers. Rule 25.3(a) of the same Chapter states that “[i]f any provision of this chapter is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are declared to be severable.” The PUC thus followed its own severability rule and enforced Rule 25.263(£ )(3), but with an accrual date consistent with Cen-terPoint Energy. We see no error in this approach, which complied with our decision while also enforcing the remainder of the PUC’s rule allowing the recovery of interest.

By analogy to statutory construction, severability is a question of legislative intent. Here, the body enacting the regulation in issue has expressly stated by general rule that it intends invalid provisions to be severable. Absent an expression of intent regarding severability, the valid remaining portions of a statute remain enforceable if the invalidity of one portion “does not affect other provisions or applications of the [rule] that can be given effect without the invalid provision or application.” Here, the PUC was able to otherwise enforce its rule by modifying only the date that interest begins to accrue. It specifically concluded in the Order that PURA’s function is not impaired by CenterPoint Energy’s invalidation of a portion of Rule 25.263(0(3) and that the remainder of the Rule should be given effect. We agree with the PUC that there is no ground to invalidate the entire rule because of the one defect we found in CenterPoint Energy. In fact, invalidating the whole rule and barring any recovery of interest whatsoever would contradict our view in CenterPoint Energy “that the Legislature intended electric utilities to recover carrying costs on stranded costs to compensate for the financial costs incurred during the stranded cost recovery period,” consistent with the prior ratemaking principle that “carrying costs on investments in generation plants were included in rates.”

GCCC separately argues that regardless of the validity of Rule 25.263(Z )(3), the 11.075 percent interest rate chosen by the PUC was arbitrary and capricious, and not supported by substantial evidence, because there was no evidence in the record that it reflected CenterPoint’s current weighted-average cost of capital (WACC). For several reasons, we are unpersuaded.

First, given our conclusion that Rule 25.263(0(3) remains valid with the corrected start date mandated by Center-Point Energy, we agree with the court of appeals that, as a general proposition, an agency cannot be said to “err or act arbitrarily or capriciously by complying with the mandate of its own rule,” assuming that the rule is based on a valid delegation of legislative authority and is a reasonable exercise of that authority. Indeed, we have stated that if an agency “does not follow the clear, unambiguous language of its own regulation, we reverse its action as arbitrary and capricious.”

Second, GCCC does not persuade us that the PUC can as a practical matter constantly re-determine a utility’s cost of capital or is required by law to do so. The PUC selected the 11.075 percent rate in the true-up proceeding where a final order issued in December 2004 and in the financing order proceeding where a final order issued in March 2005. This rate was based on the weighted-average cost of capital established in the utility’s 2001 unbundled cost-of-service (UCOS) proceeding, adjusted for federal income taxes, and GCCC offers no proof or argument that the earlier proceedings in which Center-Point’s cost of capital was determined were flawed. Further, as all parties agree, the PUC in 2006 prospectively reset the interest rate on the CTC to reflect changed economic conditions. The rate was lowered to 8.06 percent.

Finally, the PUC points to expert testimony in the administrative record offered by CenterPoint that the 11.075 percent interest rate was appropriate given the risk associated with the recovery of CTCs, the fact that the rate was a pre-tax rate that had to be grossed up to ensure the recovery of income taxes on the CTC, the use of the same rate in other proceedings, and other factors. The consumer groups do not challenge the credentials of the expert, whose testimony was offered by CenterPoint to rebut the argument that the previously determined rate had become outdated and that one of several other rates proposed by interve-nors and PUC staff should be used. While there was some conflicting testimony on the appropriate interest rate, under the applicable substantial evidence standard of review, we ask only whether some reasonable basis exists in the record for the agency’s action. That standard was met here.

In sum, the PUC did not act in an arbitrary or capricious manner in (1) following its own rule, (2) relying on a previously determined cost of capital in proceedings whose fairness is not challenged here, (3) ultimately choosing an interest rate for which a reasonable basis exists in the record, and (4) substantially lowering the interest rate when circumstances warranted.

13. Control Premium Valuation-Panel Fee

The PUC convened the valuation panel under Section 39.262(h)(3) to help determine the market value of transferred generation assets under the PSV method. The PUC retained J.P. Morgan to serve as the valuation panel and approved its $5.2 million fee. J.P. Morgan insisted that CenterPoint guarantee payment of the fee on behalf of Texas Genco. Texas Genco and CenterPoint (then Texas Genco’s corporate parent) ultimately signed a contract agreeing to be jointly obliged for the fee, and CenterPoint ultimately paid it. As part of the fee negotiations, CenterPoint sought agreement that PUC staff would support recovery by CenterPoint of the valuation-panel fee. PUC staff agreed not to contest such recovery.

The PUC allowed CenterPoint to recover this fee from ratepayers through the CTC. It found the fee reasonable, and also noted in the Order that “[t]he true-up applicants were required to incur this expense by the Commission, and the expense was necessary for the resolution of the case.”

TIEC argues the valuation-panel fee must be borne by Texas Genco, the company receiving the transferred generation assets, and the PUC exceeded its authority in allowing CenterPoint to recoup the fee through its retail customers. TIEC argues that this sentence from Section 39.262(h)(3) prohibits cost-shifting and requires Texas Genco to incur the fee alone: “The costs and expenses of the panel, as approved by the commission, shall be paid by each transferee corporation.” The PUC and CenterPoint respond that Section 39.262(h)(3) only specifies that the transferee (as opposed to the PUC or someone else) is initially responsible for paying the valuation-panel fee, but the statute does not limit how the transferee satisfies that obligation or prohibit the PUC from allowing CenterPoint to recover the fee through its rates. They contend that since CenterPoint guaranteed the fee and ultimately paid it, it can recoup it under Section 36.061(b)(2), applicable generally to ratemaking proceedings. Under this provision, the PUC may allow recovery of “reasonable costs of participating in a proceeding under this title not to exceed the amount approved by the regulatory authority.”

So does “shall be paid by the transferee corporation” in Section 39.262(h)(3) mean Texas Genco must exclusively underwrite the fee, or does it merely require Texas Genco to cover the fee in the first instance, while letting other law (including Section 36.061(b)(2)) determine how that obligation is ultimately funded or perhaps recouped through rates like other rate-case expenses?

The court of appeals’ careful analysis persuades us that CenterPoint and the PUC, whose reasonable construction of PURA merits “serious consideration,” have the better argument:

[B]y providing that the transferee corporations “shall pay” valuation panel expenses, the legislature did not intend to preclude those expenses ultimately being recovered through rates under PURA 36.061(b)(2). [Section 39.262(h)(3) ], in other words, reflects not a mandate that such expenses be borne exclusively by transferee corporations, as TIEC suggests, but merely an expectation that the expenses would be “paid” by transferee corporations in the same manner that parties to rate proceedings routinely pay legal expenses, consultant fees, and myriad other “costs of participating in a proceeding” that are potentially eligible for later recovery under PURA section 36.061(b)(2).

It is true, as TIEC contends, that state-agency powers are limited, and agencies may not “on a theory of necessary implication from a specific power, function, or duty expressly delegated, erect and exercise what really amounts to a new and additional power or one that contradicts the statute, no matter that the new power is viewed as expedient for administrative purposes.” But that admonition is inap-posite here.

PURA nowhere discusses the interplay between Sections 36.061(b)(2) and 39.262(h)(3), much less suggests any conflict between them. Contrast that to other examples within PURA where the Legislature acknowledged potential conflicts and clarified which provision would control. PURA’s drafters knew how to resolve perceived inconsistencies, and absent any indication that lawmakers desired one PURA provision to prevail over another, we must presume they wanted both sections here to be fully effective.

TIEC argues principally that Section 39.262(h)(3) must control because its specific focus on valuation panels gives it a precision that Section 36.061(b)(2)’s ordinary cost-recovery regime lacks. But the specific-controls-over-general maxim “applies only when overlapping statutes cannot be reconciled.” Here, we can construe the two provisions in a way that harmonizes rather than conflicts. Section 39.262(h)(3) does not restrict, or even address, how the transferee corporation fulfills its panel-fee obligation. It nowhere prohibits, even implicitly, a transferor corporation from covering a transferee’s upfront obligation to pay the valuation-panel fee and later seeking recovery as a “reasonable cost[] of participating in a proceeding” under Section 36.061(b)(2).

In short, the provisions do not collide because they govern different subjects— initial payment of the valuation-panel fee (Section 39.262(h)), and separately, the PUC’s authority to permit the recoupment of certain rate-case expenses (Section 36.061(b)(2)). True, one provision has a narrower focus, but they are easily harmonized, as the PUC did here. TIEC’s construction would create a conflict where none need exist. We agree with the court of appeals’ analysis.

III. Conclusion

We affirm the court of appeals’ judgment.

      . We use "interest” and "carrying costs” interchangeably and intend no distinction between them.

      . Tex. Util.Code § 39.001(a). See also City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 237 (Tex.2001).

      . Tex. Util.Code § 39.051(b).

      . Id. § 39.102(a).

      . See id. §§ 39.201-.205; In re TXU Elec. Co., 67 S.W.3d 130, 132 (Tex.2001) (Phillips, C.J., concurring) ("Because the generating companies and retail electric providers must use the existing power lines to move electricity from the plant to the retail customer’s home or business, the transmission and delivery companies will remain regulated monopolies.”).

      . Tex. Util.Code § 39.107(a).

      . Id. § 39.107(d).

      . Id. § 39.107(e).

      . CenterPoint Energy, Inc. v. Pub. Util. Comm'n, 143 S.W.3d 81, 82 (Tex.2004).

      . City of Corpus Christi, 51 S.W.3d at 237-38; see also Tex. Util.Code §§ 39.001(b)(2), .251(7), .252(a).

      . Tex. Util.Code § 39.052.

      . Id. § 39.201(a)-(b).

      . Id. § 39.201(d).

      . Id. § 39.201(b), (d), (g).

      . City of Corpus Christi, 51 S.W.3d at 238 (citing Tex. Util.Code § 39.252).

      . Tex. Util.Code § 39.201(h).

      . See id. § 39.262(i). “ECOM” stands for excess costs over market, see id. § 39.254, and is another term for stranded costs.

      . See Tex. Util.Code §§ 39.201(i), .301.

      . Id. § 39.201(f).

      . CenterPoint Energy, 143 S.W.3d at 91.

      . Tex. Util.Code § 39.262(c).

      . Id. §§ 39.201 (l), .262(c).

      . Id. § 39.201(1).

      . Id. §§ 39.201(l), .262(c). Alternatively, stranded costs may be securitized, as discussed below.

      . Id. § 39.262(h)(l)-(4). These methods apply except for the valuation of stranded costs for certain nuclear assets. See id. § 39.262(h)-(i).

      . Id. § 39.262(h)(3).

      . See id. § 39.262(g).

      . Id. § 39.202(a).

      . Id. § 39.202(c).

      . Id. § 39.153(a).

      . Id. §-39.153(b).

      . Id. §§ 39.202(c), .262(d)(1).

      . Id. § 39.262(d)(2).

      . Id. § 39.262(e). This credit is subject to a cap. Id.

      . The Act defines regulatory assets as "the generation-related portion of the Texas jurisdictional portion of the amount reported by the electric utility in its 1998 annual report on Securities and Exchange Commission Form 10-K as regulatory assets and liabilities, offset by the applicable portion of generation-related investment tax credits permitted under the Internal Revenue Code of 1986.” Id. § 39.302(5).

      . CenterPoint Energy, 143 S.W.3d at 85.

      . Tex. Util.Code § 39.303.

      . See id. § 39.302(4). Various sections of Chapter 39 were amended in 2007 to expand the categories of costs that can be securitized. Act of May 28, 2007, 80th Leg., R.S., ch. 1186, 2007 Tex. Gen. Laws 4049. The CTC at issue in this case was eventually securitized, after the PUC order and the interest-rate period at issue in this appeal.

      . Application of Centerpoint Energy Houston Electric, LLC for a Competition Transition Charge, PUC Docket No. 30706, 2005 WL 1668034 (July 14, 2005) (Order), available at http://interchange.puc.state.tx.us.

      . See Tex. Util.Code § 15.001.

      . 143 S.W.3d 81 (Tex.2004).

      . 263 S.W.3d 448, 468.

      . 143 S.W.3d at 84, 99.

      . See Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 753 (Tex.1993) ("The Court’s language must be read in the context of the issues decided.”).

      . CenterPoint Energy, 143 S.W.3d at 83. See also id. at 86 ("The only issue is whether the Act contemplates roughly a two-year gap in recovery of carrying costs between the date regulation ceased (January 1, 2002) and the date of a final true-up order (2004 or perhaps beyond).”).

      . Id. at 84 (citing Tex. Util.Code §§ 39.252(a), .201(g)).

      . Id.

      . Tex. Util.Code § 39.301, quoted in Center-Point Energy, 143 S.W.3d at 89.

      . CenterPoint Energy, 143 S.W.3d at 87 (emphasis added).

      . See Tex. Gov’t Code §§ 311.032(a)-(b), 312.013(b).

      . Id. §§ 311.032(c), 312.013(a).

      . The Order states that the interest-rate portion of Rule 25.263(Z )(3) is severable from the invalidated accrual start date in the Rule because ''[tjhere is no logical connection between the accrual of interest at a utility’s UCOS WACC [weighted-average cost of capital] and the time period specified by the rule." In Conclusion of Law 12 to the Order, the PUC concludes: "The function of PURA is not impaired by [CenterPoint Energy’s ] invalidation of the portion of [Rule] 25.263{l )(3) that required interest on a utility’s true-up balance to accrue starting on the date of the Commission order in the utility's true-up case.” Conclusion of Law 13 further reasons: "Because [Rule] 25.263(Z)(3) requires that interest accrue starting on a date not fixed by the rule or PURA, and because such interest would accrue for a period of time that was unknown at the time of adoption of the rule, there is no connection between the interest-accrual start date and the portion of the rule requiring accrual at a utility’s UCOS WACC.”

      . CenterPoint Energy, 143 S.W.3d at 83.

      . We understand TIEC to argue that the interest rate chosen by the PUC is improper only if Rule 25.263(Z)(3) is invalidated in its entirety. It argues in its brief on the merits that "[b]ecause the rule was invalidated in its entirety, the use of an 11.075% interest rate is arbitrary and capricious,” and that "[bjecause this Court invalidated the Rule in CenterPoint Energy, the Commission had no authority to rely on the Rule by applying the interest rate adopted in the UCOS proceeding.”

      . 263 S.W.3d at 458.

      . Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 255 (Tex.1999).

      . As the Order explains, the 11.075 percent rate is "stated on a pre-tax basis. By accruing interest at a pretax rate, CenterPoint will recover the interest due at its actual UCOS WACC, after the effect of taxes.”

      . As the court of appeals explained, "[i]n July 2006, the Commission amended rule 25.263(f)(3) to both conform to CenterPoint Energy, Inc., and alter the rate methodology.” 263 S.W.3d at 457 n. 10 (citing 31 Tex. Reg. 5603 (2006)). And as TIEC explains in its brief on the merits, the revised rule "replaced the interest rate from the utility's WACC as established in the UCOS proceeding with a new method for calculating interest, which relies on updated information regarding the utility’s marginal cost of long term debt and results in a significantly lower interest rate.... In response to the new rule, Center-Point made a compliance filing seeking to adjust the interest rate to reflect its current financial status and the risk associated with recovering the CTC balance from ratepayers. CenterPoint agreed to reduce its interest rate, on a going forward basis, from 11.075% to 8.06% based on this new rule.” CenterPoint further explains that it agreed to the lower interest rate as part of the settlement of a then-pending rate case. CenterPoint thus contends that since the consumer groups did not appeal the 11.075 percent interest rate selected in the true-up proceeding, they can only complain in today’s case about the use of the 11.075 percent interest rate for the period from December 17, 2004, the date of the final order in the true-up proceeding, until August 1, 2006, the date CenterPoint began using the 8.06 percent interest rate. CenterPoint also points out that some time after August 1, 2006, the CTC balance was securitized. Once the CTC balance was received through a bond offering, the interest rate on the CTC balance earlier assigned by the PUC became irrelevant.

      . Tex. Util.Code § 15.001.

      . See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex.1999) ("A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency. The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency’s action. Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them.”) (citations omitted).

      . Under substantial evidence review, “an administrative decision may be sustained even if the evidence preponderates against it.” Id.

      . Tex. Util.Code § 36.061(b)(2).

      . First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 632 (Tex.2008).

      . 263 S.W.3d at 462.

      . Pub. Util. Comm'n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex.1995) (quoting Sexton v. Mount Olivet Cemetery Ass'n, 720 S.W.2d 129, 137-38 (Tex.App.-Austin 1986, writ ref’d n.r.e.)). See also Pub. Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex.2001).

      . See Tex. Util.Code §§ 36.007(d), 36.204, 36.351(a), 39.158(d), 39.263(d). In addition, the fact that Section 39.262(h)(3) is the later-enacted provision — and is silent regarding any interplay with Section 36.061(b)(2) — gives additional support for the view that the Legislature intended no impact on PURA’s preexisting cost-recovery provision.

      . Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 (Tex.2006).

      . See Tex. Gov’t Code § 311.026(a) ("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.”); see also Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 531 (Tex.2002).


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    Lilia BELTRAN, Appellant, v. Raymundo BELTRAN, Jr. and Julian Beltran, Appellees.
    No. 08-08-00002-CV.
    Court of Appeals of Texas, El Paso.
    Jan. 20, 2010.

      Maria B. Ramirez, Law Office of Maria B. Ramirez, El Paso, TX, for Appellant.
    Heather A. Ronconi, Attorney at Law, Susan M. Urbieta, El Paso, TX, for Appel-lees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Lilia Beltran appeals an order granting a declaratory judgment in favor of her former brother-in-law Julian Beltran regarding Julian’s interest in a business owned by her former husband, Raymundo Beltran, Jr., during the marriage. Because Ms. Beltran has been divested of her interests in the business by an irrevocable mediated settlement agreement, the appeal is moot and must be dismissed.

Raymundo Beltran Jr. filed for divorce from Lilia Beltran in July of 2004, alleging that the marriage had become insupportable due to discord or conflict between himself and his wife. On June 20, 2006, Lilia amended her original counter-petition for divorce, adding allegations of breach of fiduciary duty, actual fraud, alter ego, fraudulent transfer, and civil conspiracy against Raymundo, for his transfer of a 50 percent interest on Beltcon Construction, Inc., to his brother Julian Beltran. In response, Julian filed a plea in intervention in the divorce, denying Lilia’s allegations and requesting a declaratory judgment stating that he owns 50 percent of Beltcon Construction, and that Raymundo created an express trust in 1986, holding 50 percent of the corporation stock for Julian’s benefit until 1999, when Julian received legal title.

In the interim, Raymundo and Lilia had successfully mediated a divorce settlement, including issues of property division, and care and custody of the couple’s only minor child. The Mediated Settlement Agreement signed by both parties and their attorneys was filed on July 16, 2007. The agreement specified that Raymundo was to receive 100 percent ownership of the business entities known as; Beltcon Construction, Inc., Beltran Precast, Inc., Beltran Properties, Inc., and Beltran Investment Club. Lilia agreed to be divested of any community or separate property interest she had in the businesses.

The trial court entered an order granting Julian’s plea and entered a declaratory judgment on August 15, 2007. The declaratory judgment stated:

The Court finds that Raymundo Beltran, Jr. held legal title to all shares of Belt-con Construction, Inc. between 1991 and 1999. The Court further finds that between 1991 and 1999 Raymundo Beltran, Jr. held 50% of his shares in trust for the benefit of Intervenor Julian Beltran as a result of his creation of a constructive or equitable trust. The Court finds that as of 1991, as a result of the creation of a trust by Raymundo Beltran, Jr., Beltcon Construction, Inc. has been owned 50% by Raymundo Beltran, Jr. and 50% by Julian Beltran.
The Court further finds that Raymundo Beltran, Jr. did not transfer shares of Beltcon Construction, Inc. to Julian Bel-tran with the intent to defraud the community estate of Raymundo Beltran, Jr. and Lilia Beltran; that neither Raymundo Beltran, Jr. nor Julian Beltran intended to conspire to defraud the community estate of Raymundo Beltran, Jr. and Lilia Beltran by the transfer of shares of Beltcon Construction, Inc. to Julian Beltran; and that Beltcon Construction, Inc. is not the alter ego of Raymundo Beltran, Jr.
It is accordingly ORDERED, ADJUDGED, and DECLARED that JULIAN BELTRAN is presently the owner of 50% of the shares of Beltcon Construction, Inc. and has been the owner of 50% of the shares of Beltcon Construction, Inc. since the date of corporate inception in 1991.

In an additional paragraph added to the end of the judgment, the court added a notation stating that the declaratory judgment disposed of the issues and causes of action contained in Lilia’s counter-petitions pertaining to her allegation of fraud, breach of fiduciary duty, civil conspiracy, fraudulent transfer, and alter-ego. Counsels for both Lilia and Julian initialed this additional paragraph.

The trial court entered the Final Decree of Divorce on December 7, 2007. The decree incorporated the terms of the mediated settlement agreement, and stated that Lilia’s other causes of action were disposed of in the court’s declaratory judgment order. Lilia filed a notice of appeal to this Court on January 7, 2008, for review of the trial court’s order granting Julian’s plea in intervention and declaratory judgment. Lilia presents four issues for review, arguing the trial court’s declaratory judgment was entered erroneously on several grounds. She requests that this Court reverse the declaratory judgment and intervention orders and vacate the court’s final judgment. Raymundo has filed a motion to dismiss the appeal for lack of jurisdiction, arguing Lilia’s appellate issues were rendered moot by the settlement agreement and final divorce decree. As it is the dispositive issue, we begin with the mootness issue.

Courts do not have authority to provide advisory opinions, or to decide cases on hypothetical or contingent facts. See Gen. Land Office of Tex. v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990). The mootness doctrine precludes a court from rendering an advisory opinion. Camarena v. Tex. Employment Comm’n, 754 S.W.2d 149, 151 (Tex.1988). A case is rendered moot when: (1) it appears that a party seeks to obtain a judgment upon some controversy, when in reality none exists; or (2) a party seeks a judgment upon some matter which cannot have a practical legal effect upon a then existing controversy. See Pope v. City of Dallas, 636 S.W.2d 244, 247 (Tex.App.-El Paso 1982, no writ). That is to say, when an actual controversy no longer exists between the parties, “the decision of an appellate court would be a mere academic exercise.” Hanna v. Godwin, 876 S.W.2d 454, 457 (Tex.App.-El Paso 1994, no writ).

The record establishes that Lilia entered into a mediated settlement agreement whereby Raymundo was given 100 percent right, title, and ownership of the community estate’s interest in Beltcon Construction. The agreement expressly divested Lilia of any interest she had in the business. Likewise, Raymundo assumed 100 percent of any debt associated with Belt-con. The agreement was signed by both Raymundo and Lilia, as well as each party’s attorney on July 14, 2007, and filed of record in the divorce on July 16, 2007. The divorce decree incorporated the terms of the settlement by awarding Raymundo the community estate’s interest in Beltcon, and divesting Lilia’s interest in the same.

Lilia does not argue that the settlement agreement itself, nor the decree in which it is incorporated, is invalid or void on any other issue. Nor does she specify how her alleged injury, harm to the community property estate, continues to constitute a “live” controversy despite the fact that she was divested of her interests by agreement. She simply contends that because neither she nor her attorney approved the substance of the decree, she has maintained the right to pursue her causes of action. In essence, Lilia argues she is not bound by that portion of the agreement or the decree that divests her of her interest in Beltcon. We disagree.

Texas Family Code section 6.602 states the requirements for a binding mediated settlement agreement in a divorce proceeding. Such an agreement must prominently state that the agreement is not subject to revocation, it must be signed by each party to it, and it must be signed by the parties’ attorneys if the attorneys are present at the time the agreement is signed. Tex.Fam.Code Ann. § 6.602(b)(Vernon 2006). The agreement in this case meets the statutory criteria and was not subject to revocation, in whole or in part, by Lilia. See Brooks v. Brooks, 257 S.W.3d 418, 422 (Tex.App.-Fort Worth 2008, pet. denied).

Following the settlement and entry of the decree, Lilia no longer had an interest in Beltcon which was, or could be, injured by Raymundo and Julian’s actions. As this Court has stated before, “it is a fundamental principle of appellate review that a party on appeal may not complain of errors that do not injuriously affect him or that merely affect the rights of others.” Hanna, 876 S.W.2d at 457. Because any decision this Court might issue regarding Raymundo and Julian’s actions surrounding the transfer of Beltcon would be purely advisory with reference to Lilia, the case is now moot and the appeal must be dismissed. See id. at 457-58.

Appellee’s motion to dismiss due to mootness is therefore GRANTED, and the appeal is dismissed.


text:
    Joe ROWE, Appellant, v. Kara Lane WATKINS, Appellee.
    No. 08-09-00001-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 10, 2010.
    Richard G. Baker, Baker & Zbranek, P.C., Liberty, for appellant.
    Kara Lane Watkins, appellee pro se.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION ON MOTION

DAVID WELLINGTON CHEW, Chief Justice.

Pending before the Court is Appellant Joe Rowe’s motion for appellate review of the trial court’s order requiring a $50,000 supersedes bond on appeal. Mr. Rowe contends this security requirement is excessive and arbitrary in light of the judgment, and asks this Court to order the amount decreased to $2,500 and make temporary orders suspending the judgment until he has a reasonable opportunity to post the proper security.

This case began as a dispute over the ownership of a female basenji-mix dog named “Sara.” Mr. Joe Rowe took possession of the dog from Ms. Kara Watkins in June of 2007, when Ms. Watkins moved from her home in Fort Davis, Texas to Alaska. The following May, Ms. Watkins returned to Texas, and went to Mr. Rowe’s home. Ms. Watkins attempted to take Sara from Mr. Rowe, the two argued over the dog, and a physical altercation ensued. Both parties were injured.

Mr. Rowe filed suit in the Justice Court of Jeff Davis County, to establish his ownership of Sara. The Justice of the Peace awarded Sara to Mr. Rowe. Sara was released to Mr. Rowe’s custody on June 30, 2008. Ms. Watkins appealed the judgment to the Jeff Davis County Court by filing an original petition on July 28, 2008. The case proceeded to jury trial in December 2008. The jury found in Ms. Watkins’ favor but did not award monetary damages. Mr. Rowe expressed an intent to appeal the judgment and objected to its immediate enforcement. The court overruled Mr. Rowe’s objections, and ordered that Sara be turned over to Ms. Watkins immediately.

On December 11, 2008, Mr. Rowe motioned the court to determine the type and amount of security to supercede the judgment pending appeal to this Court. No action was taken in the trial court until the following September, when the trial court entered an order requiring Mr. Rowe to post $50,000 “to secure suspension of the judgment.” A final written judgment was not entered in the County Court until September 15, 2009. See Rowe v. Watkins, No. 08-09-00001-CV, 2009 WL 2628353 (Tex.App.-El Paso August 26, 2009, no pet.)(mem. op., not designated for publication). Mr. Rowe filed his notice of appeal in this Court on December 31, 2008. Mr. Rowe has now asked this Court to review the court’s supercedes order, and to order a reduction in the amount of security to $2,500. Ms. Watkins has not responded to the motion, except to notify the Court that her attorney has withdrawn from the case, and she is without representation on appeal.

Texas Rules of Appellate Procedure 24 governs the suspension of judgment in civil cases. See Tex.R.App.P. 24. One of the methods a judgment debtor may use to suspend enforcement of a judgment during the pendency of an appeal is to file a “good and sufficient” bond with the trial court. See Tex.R.App.P. 24.1(a)(2). The amount of a bond is determined by Rule 24.2. When, as is the case here, the judgment is for something other than money or an interest in property, the Rule requires the trial court to determine the amount and type of security the judgment debtor must post. See Tex.R.App.P. 24.2(a)(3). “The security must adequately protect the judgment creditor against loss or damage that the appeal might cause.” Id. Rule 24.4 provides for appellate review of the trial court’s ruling on security. See Tex. R.App.P. 24.3(a). On motion by either party, the appellate court may review: (1) the sufficiency or exeessiveness of the amount of security; (2) the sureties on any bond; (3) the type of security required; (4) the trial court’s determination whether to permit suspension of enforcement; and (5) the trial court’s exercise of discretion related to its continuing jurisdiction to modify the amount and type of security and the sufficiency of sureties. See Tex.R.App.P. 24.4(a).

We review the trial court’s determination of the amount of security under an abuse of discretion standard. Montelongo v. Exit Stage Left, Inc., 293 S.W.3d 294, 297 (Tex.App.-El Paso 2009, mand. pending). If we conclude the trial court has abused its discretion, we may order the amount of the security increased or decreased. See id. Such a review includes a two-step inquiry: (1) Did the trial court have sufficient information on which to exercise its discretion; and (2) did the trial court err in the application of its discretion? Leibman v. Grand, 981 S.W.2d 426, 429 (Tex.App.-El Paso 1998, no pet.). In step one, we utilize the traditional standards reviewing evidentiary sufficiency. Tex. Custom Pools, Inc. v. Clayton, 293 S.W.3d 299, 305-06 (Tex.App.-El Paso 2009, mand. denied). In step two, we must determine whether, based on the record, the trial court’s decision was arbitrary and unreasonable. Id. at 306 As with any abuse of discretion review, the question is not whether the reviewing court would have come to the same conclusion as the trial court, but whether the court acted without reference to any guiding rules and principles. Montelongo, 293 S.W.3d at 297.

In the case before us, we are forced to answer the following question: “Did the trial court abuse its discretion by requiring a $50,000 bond to suspend the judgment establishing Ms. Watkins as the rightful owner of the dog Sara?” The answer to this question depends, in large part, on the determination of Sara’s value to the parties. Given that she is simply a pet, who is no doubt priceless to her human companions, the determination of her value in monetary value presents some difficulty. We look first to Rule 24.2(a)(3), which governs the setting of security for judgments regarding items other than money or an interest in property. First, the Rule requires a trial court to “set the amount and type of security that the judgment debtor must post.” See Tex.R.App.P. 24.2(a)(3). Second, the Rule requires, whatever the amount and type of security is required to “adequately protect the judgment creditor against loss or damage that the appeal may cause.” See Tex. R.App.P. 24.2(a)(3). In this instance, the “damage” of an appeal can be described by considering two extremes; on one end of the spectrum, the party who is denied Sara’s companionship for the duration of the appeal has lost just that time spent with a beloved pet. On the other extreme, Sara could become injured or ill, as animals often do, and perish before the final disposition of the case, thereby denying the non-possessor party with her companionship altogether, regardless of the ultimate outcome of the case. Neither of these extremes can be calculated in monetary terms. In deed, if we were discussing Sara’s loss to either party in terms of judgment damages, we would be limited to considering her destruction in terms of her “actual worth or value” less “any fanciful or sentimental considerations.” See Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 569 (Tex.2002). As the record is completely lacking in evidence that Sara had any value separate from her sentimental worth, we are left with a “value” of zero in terms of a basis for setting a monetary security.

Albeit nearly a century ago, this Court has addressed the difficulty of such situations before. In Muela v. Moye, the Court commented with approval on the County-Court’s decision to place “Richard, the brindle bulldog,” in the care of a neutral receiver for his protection and care during the pendency of the dispute over his ownership. 185 S.W. 331, 332-33 (Tex.Civ.App.-El Paso 1916, no writ). Sadly, although the record indicates the Justice of the Peace was inclined to place Sara in a neutral location where she was taken care of, and where the parties were given mutually-exclusive visitation rights during her stay, the County Court did not follow suit. Instead, the Court determined the proper type of security in this case was monetary, and has already placed Sara in Ms. Watkins’ custody. Had the County Court done so, either of its own volition as in Muela v. Moye, or on motion by Mr. Rowe, the appeal could have proceeded without the need for review of the bond amount. The parties could have been assured of Sara’s health and care and been provided with visitation rights as before.

Returning to the facts before us, without evidence of Sara’s value beyond her sentimental worth to both parties, we are left to consider only the costs and expenses associated with the appeal itself as a basis for the amount of security required. See Tex. R.App.P. 24.2(a)(3). In light of our two-step inquiry, we note that there is no evidence in the record to support the costs of appeal will approach $50,000. Indeed, the only evidence in the record regarding the costs and expense of the appeal are: $210 for the clerk’s record filed by the Jeff Davis County Clerk; an additional $7.50 for a supplemental clerk’s record containing the trial court’s supercedes order; and $3,822.70 for the preparation and certification of a six-volume reporter’s record. We also take judicial notice that the cost of filing a notice of appeal in this Court is $175 and that all motions are filed at a cost of $10 each. See Tex.Gov’t Code Ann. §§ 51.005, 51.0051 (Vernon 2005 and Vernon Supp.2009). The sum total of the costs of appeal thus far are equal only ten percent (approximately) of the trial court’s required security. As such, we conclude there was insufficient evidence upon which the trial court could have determined $50,000 was an appropriate amount, and the trial court abused its discretion by so ordering. See Clayton, 293 S.W.3d at 305-06.

Our final inquiry is what amount of security to order. See Montelongo, 293 S.W.3d at 297. Given our calculations above, we are of the opinion that $5,000 is an appropriate amount of security and will more appropriately reflect the measurable costs associated with the case. Accordingly, we GRANT Mr. Rowe’s motion for revision of the trial court’s supercedes ruling, and ORDER Joe Rowe to post the sum of $5,000 with the County Clerk of Jeff Davis County, Texas, to the secure suspension of the judgment in this cause pursuant to Texas Rule of Appellate Procedure 24.

In addition, it is further ORDERED that Appellee’s brief is due to be filed no later than thirty (30) days from the issuance of this opinion.


text:
    In the Interest of P.L.H., S.R.H., and C.H.H., Minor Children.
    No. 08-07-00228-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2010.
    Rehearing Overruled April 7, 2010.

      Jeremy C. Martin, Dallas, TX, for Appellant.
    Michelle May O’Neil, O’Neil Anderson, Dallas, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Susan Harriman appeals the trial court’s order granting her ex-husband, Phillip Harriman’s motion to modify child support. Ms. Harriman presents seven issues for review. In Issue One, she contends the trial court erred by awarding Mr. Har-riman over $32,000 for overpayment of child support. In Issue Two, Ms. Harri-man challenges the judgment awarding Mr. Harriman attorney’s fees. In Issue Three, she argues the trial court erroneously awarded Mr. Harriman court costs in addition to attorney’s fees. Issue Four states that the trial court erred by imposing “death penalty” sanctions against Ms. Harriman during trial. Issues Five and Six challenge the trial court’s denial of Ms. Harriman’s motion for continuance, and motion to reopen the evidence. In Issue Seven, Ms. Harriman argues any overpayment of child support by Mr. Harriman was a debt which was discharged by her 2004 bankruptcy. Affirmed.

Phillip and Susan Harriman were divorced in Oklahoma in July of 2000. The divorce decree (“the Oklahoma decree”) was entered on August 20, 2001, and filed with the District Clerk of Tulsa County, Oklahoma on January 7, 2002. The couple had three children during the marriage, P.L.H., S.R.H., and C.H.H. Ms. Harriman was awarded custody of the children. Mr. Harriman was ordered to pay Ms. Harri-man child support for the care and maintenance of the children in accordance with the “Oklahoma Child Support Guidelines,” which the decree stated were to be attached and incorporated by reference. Due to a clerical error, the guidelines were omitted from the judgment when it was entered.

Beginning in August of 1999, Mr. Harri-man’s paychecks were subject to an “Order of Income Assignment” by the State of Oklahoma whereby his income was garnished up to $1,072 per month in accordance with Oklahoma law. Because the full amount exceeded the Oklahoma statutory limits for withholding, Mr. Harriman’s actual child support payment was limited to $981.46 per month. .

In February 2004, the parties returned to the Oklahoma District Court for entry of a nunc pro tunc order (“the 2004 nunc pro tunc”). In the nunc pro tunc judgment, the trial court noted that the divorce decree did not have a copy of the child support guidelines attached and therefore did not accurately reflect the judgment. The corrected judgment included the statutory guidelines, and a child support computation sheet which had been prepared during the original divorce trial in November of 2000. According to the computation sheet, Mr. Harriman’s child support obligation was $481.20 per month. The cost of health insurance premiums and child care was not allocated to either party. The computation sheet lists each parent’s obligation for those costs as $0. However, the computations did include a statement that Mr. Harriman would be responsible for 40 percent of the children’s “other medical expenses.”

On March 8, 2005, Mr. Harriman filed his original petition in Dallas County to modify the terms of the Oklahoma decree. Ms. Harriman responded to Mr. Harri-man’s petition on April 21, 2005 by filing a cross-petition for modification seeking “minimal possession” for Mr. Harriman and increase in child support. On May 3, 2005, the Oklahoma District Court signed an order, per Ms. Harriman’s request, declining continuing jurisdiction over all issues related to child support and custody in favor of the Dallas District Court. On June 6, 2006, Ms. Harriman filed the Oklahoma decree for registration in Texas. In September, Ms. Harriman returned to the Oklahoma district court for a second nunc pro tunc order (the 2006 nunc pro tunc) further clarifying the Oklahoma decree. The 2006 nunc pro tunc judgment stated both that the Oklahoma decree was incomplete, and that the 2004 nunc pro tunc judgment failed to properly correct the errors in the decree. The 2006 nunc pro tunc stated that the Oklahoma decree was to be corrected by incorporating the following language:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the [Oklahoma decree] filed in this matter on January 7, 2002, is hereby corrected effective January 7, 2002 to reflect the following findings of the Court:
‘That on the [sic] July 2, 2000 the Court finds income for [Ms. Harri-man] is $42,000 annually or $8,500/ month and income for [Mr. Harriman] is $27,452.23 or $2,288.00 per month; the Court orders child support to be paid by [Mr. Harriman] to [Ms. Harri-man] according to the most recent Oklahoma Child Support Guidelines, and that [Mr. Harriman’s] child support shall be computed as a proportionate percentage of the combined gross income of both parents; the Court finds that [Mr. Harriman’s] proportionate percentage is 40%; the Court finds that child support obligations owed by [Mr. Harriman] to [Ms. Harriman] include all obligations covered under Oklahoma statute, and [Mr. Harriman] is ordered to [Ms. Harriman] child support computed as follows: $481.20 base support plus [Mr. Harriman’s] 40% share of the following: all child care expenses, actual medical, dental, orthodontic, opto-metric, psychological, hospitalization, hospice, prescriptions and any other physical or mental health expenses of the minor children not reimbursed by insurance; [Mr. Harriman] is ordered to pay [Ms. Harriman] insurance premiums paid by [Ms. Harriman] for the benefit of the children; [Mr. Harri-man] shall reimburse [Ms. Harriman] for his 40% proportionate share of unreimbursed medical expenses within thirty (30) days of the receipt of documentation of the expense, as stipulated by statute.’

A bench trial commenced on September 18, 2006. During opening statements, the parties were able to agree and stipulate that Mr. and Ms. Harriman would be appointed joint managing conservators of the children, with Ms. Harriman granted the right to establish the children’s primary residence. Mr. Harriman received the right to possession of the children pursuant to a standard possession order as provided by the Texas Family Code. Trial proceeded on Mr. Harriman’s claim that he was owed a credit for child support overpayment and for attorney’s fees. In support of his overpayment claim, Mr. Harriman introduced evidence indicating that the Oklahoma decree required him to pay only $481.20 per month. He therefore requested that the Court issue a declaratory judgment stating that he had overpaid his child support obligation by $500.26 per month since the date the decree was rendered. He also asked the trial court to modify his support obligation pursuant to the Texas guidelines and apply a credit of more than $30,000 to future child support payments. Mr. Harriman’s attorney presented evidence of over $100,000 in fees for the representation.

Ms. Harriman represented herself at trial. During her presentation, Ms. Harri-man argued that Mr. Harriman had failed to pay his proportionate share of the children’s medical expenses as required by the Oklahoma decree. However, Ms. Harri-man was not able to produce evidence that the expenses had been submitted to Mr. Harriman for reimbursement within thirty days of their payment as required by the decree. Due to a pretrial order excluding Ms. Harriman’s evidence for failure to comply with pretrial orders, she did not present evidence of medical expenses.

The trial court entered a modification order on December 6, 2006. The trial court concluded that it was the only court with continuing exclusive jurisdiction over the case, and took judicial notice of the Oklahoma District Court’s order declining continuing jurisdiction. Mr. and Ms. Har-riman were appointed joint managing conservators of the children, with the terms of possession to be governed by the Texas Family Code’s standard possession order. Ms. Harriman was awarded the right to establish the children’s primary residence. Mr. Harriman was ordered to pay $727.49 per month to Ms. Harriman for the children’s support. Mr. Harriman was also ordered to maintain health insurance for all three children. The order also provides that as of December 2006, Mr. Harriman was entitled to a child support credit in the amount of $32,016.64 for prior over payment. The court ordered that this credit would be applied to future support payments as a deduction of $500 per month for sixty four consecutive months.

The trial court awarded Mr. Harriman $50,000 for attorneys fees and costs. The court also made contingent awards of $10,000 in the case of an unsuccessful appeal, and an additional $5,000 in the case of a denied petition for review to the Texas Supreme Court. Ms. Harriman appeals both the trial court’s modification and the attorney’s fee award.

In Issue One, Ms. Harriman asserts that the trial court’s decision to grant Mr. Har-riman a declaratory judgment and award him a credit for overpayment of child support was in error. She argues that the root of the trial court’s error was in its failure to recognize and enforce the second Oklahoma nunc pro tunc judgment. Had that order been enforced, Ms. Harriman continues, she would have been awarded an amount equal to Mr. Harriman’s 40 percent share of the children’s medical expenses. These medical expenses would have offset some, or all, of Mr. Harriman’s credit for overpayment, reducing or eliminating the judgment being appealed here. Mr. Harriman responds by arguing that the second nunc pro tunc was a “judicial,” rather than “clerical” correction of the Oklahoma decree, and was therefore void according to the law in either state.

The central inquiry in this issue is the validity of the second nunc pro tunc judgment. This is a question of law, which we review de novo. See Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex.1986). Under both Texas and Oklahoma law, a judgment nunc pro tunc may be used only to correct “clerical,” as opposed to “judicial” errors in a judgment. See Escobar, 711 S.W.2d at 231; Stork v. Stork, 898 P.2d 732, 736-37 (Okl.1995). According to Oklahoma law,

Nunc pro tunc relief is limited to supplying inadvertent clerical omission and correcting facial mistakes in recording judicial acts that actually took place. In short, a nunc pro tunc order can and will place of record what was actually decided by the court but was incorrectly recorded. The device may neither be invoked as a vehicle to review a judgment (or to exercise legal errors found in it) nor as a means to enter a different judgment.

Stork, 898 P.2d at 736-37 [Emphasis in original].

The nunc pro tunc order issued in this case did more than simply correct a clerical omission or facial mistake in the Oklahoma divorce decree. Here, the Oklahoma Court attempted to alter the support obligation imposed by the decree rendered in 2000. This was not a clerical error in how the Oklahoma decree was recorded. Rather, this nunc pro tunc was an attempt to add and change child support provisions. The Dallas court did not err by failing to enforce the 2006 nunc pro tunc, as it constituted an impermissible judicial correction, and was therefore void as a matter of Oklahoma law. Issue One is overruled.

In Issue Two, Ms. Harriman argues the trial court erred by granting Mr. Harri-man’s request for attorney’s fees. This argument is founded on her conclusion, in Issue One, that Mr. Harriman had no right to declaratory relief. Given our disposition of Issue One, we also overrule Issue Two.

Issue Three states the trial court erred by awarding Mr. Harriman court costs pursuant to Rule 131 of the Texas Rules of Civil Procedure. The discussion of this issue simply recites the trial court’s comments during a hearing on Mr. Harriman’s motion for entry of judgment, and concludes that the judgment does not agree with the court’s statement that its $50,000 award was inclusive of attorney’s fees and costs. The brief fails to offer any legal analysis or citation to legal authority.

It is the appellant’s burden to properly raise and discuss the issues presented for review. See Tex.R.App.P. 38.1(f); Martinez v. El Paso County, 218 S.W.3d 841, 844 (Tex.App.-El Paso 2007, pet. stricken). The brief must contain a clear and concise argument, including appropriate citations to legal authority and the record. See Tex.R.App.P. 38.1(h). This requirement is not met by merely uttering conelusory statements without legal citation. Sweed v. City of El Paso, 195 S.W.3d 784, 786 (Tex.App.-El Paso 2006, no pet.). Failure to provide substantive analysis results in waiver of the issue presented. See Martinez, 218 S.W.3d at 844.

Because Ms. Harriman’s briefing on Issue Three does not comply with Texas Rule of Appellate Procedure 38.1, the issue is waived.

Issue Four challenges the trial court’s exclusion of Ms. Harriman’s trial exhibits. Ms. Harriman argues that the trial court’s ruling was an unjust sanction, and therefore constituted an abuse of discretion. She concludes that an improper judgment was rendered because she was not permitted to offer her exhibits into evidence at trial.'

On May 31, 2006, the trial court entered a supplemental pretrial order requiring each party to deliver to the other, “all exhibits to be introduced at trial of this case” by August 28. During a pretrial hearing on September 8, Mr. Harriman’s attorney moved to exclude all of Ms. Har-riman’s trial exhibits on the ground that she failed to comply with the court’s pretrial order. According to Mr. Harriman’s attorney, all Ms. Harriman had tendered was a laundry list of documents she intended to introduce at trial. Ms. Harri-man responded by insisting that she had attempted to comply with the court’s order but that delivery had been refused by Mr. Harriman’s lawyer. When the court asked Ms. Harriman if she had any evidence that she attempted to deliver the documents as she claimed, she was not able to produce additional evidence: The trial court ultimately excluded all of Ms. Harriman’s exhibits for failure to comply with the discovery order.

A trial court’s ruling on a motion for discovery sanctions is reviewed for an abuse of discretion. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex.2004). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Id. at 838-39. Instead the reviewing court must ask “whether the court acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The ruling should only be reversed if the record demonstrates the trial court acted arbitrarily or unreasonably. Cire, 134 S.W.3d at 839.

A trial court abuses its discretion by imposing an unjust sanction. Aguilar v. Morales, 162 S.W.3d 825, 831 (Tex.App.-El Paso 2005, pet. denied), citing TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). A sanction is just if: (1) there is a direct nexus between the offensive conduct, the offender and the sanction imposed; and (2) the sanction is not excessive. See Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.2003). Ms. Harriman’s argument is limited to her assertion that the trial court’s ruling constituted an excessive sanction. Her brief does not address the nexus, or lack thereof, between her failure to comply with the trial court’s order and the exclusion of her trial exhibits. Therefore it is not necessary to review the first prong of the TransAmerican analysis.

A discovery sanction must not be more severe than is necessary to satisfy its legitimate purposes, which include securing compliance with discovery rules, deterring other litigants from similar misconduct, and punishing violators. Mayer, 104 S.W.3d at 882. The trial court must also consider whether other, less stringent sanctions would be effective to remedy the offensive conduct. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.1992).

Our rules of civil procedure provide specific actions a trial court may take after determining that a party is abusing the discovery process. Pursuant to Rule 215.3, the court may, after notice and hearing, impose any appropriate sanction authorized by paragraphs (1), (2), (3), (4), (5), and (8). See Tex.R.Civ.P. 215.3. The trial court’s options include prohibiting a party from introducing designated matters in evidence. See Tex.R.Civ.P. 215.2(b)(4).

The record shows that Ms. Harriman had been sanctioned for failure to comply with discovery requests and orders several times prior to the September 8 hearing. On June 7, 2005, the trial court granted a motion for sanctions due to Ms. Harriman’s failure to respond to Mr. Har-riman’s request for production, and her failure to appear for deposition on three different occasions. On September 15, 2005, the trial court entered its second sanctions order, again ordering Ms. Har-riman to appear for deposition, and ordering her to pay $1,200 in attorney’s fees and costs to Mr. Harriman’s attorney. The following January, the trial court entered an additional order regarding Ms. Harriman’s response to Mr. Harriman’s request for production, specifically ordering her to reorganize her production response so that the documents corresponded to Mr. Harriman’s request. The court also ordered Ms. Harriman to produce the children’s medical records and contact information for health care providers as requested by Mr. Harriman. Finally, during the September 8 hearing, the trial court specifically inquired whether Ms. Harriman had any evidence to support her assertion that delivery was refused by Mr. Harriman’s attorney. She was not able to do so. Her argument was refuted by Mr. Harriman’s attorney, who represented to the court that delivery was never attempted, and would not have been refused by his office.

Based on her history of discovery abuse, and failure to comply with the trial court’s orders, the court’s decision to exclude Ms. Harriman’s trial exhibits was not excessive. The record demonstrates that the trial court considered, and imposed, lesser sanctions when earlier discovery abuses arose, without success. Accordingly, the court’s decision to impose a Rule 215.2(b) sanction was not an abuse of discretion. Issue Four is overruled.

In Issue Five, Ms. Harriman argues the trial court erred by denying her motion for continuance. We review a trial court’s ruling on a motion for continuance for an abuse of discretion. See Serrano v. Ryan’s Crossing Apartments, 241 S.W.3d 560, 564 (Tex.App.-El Paso 2007, pet. denied).

A motion for continuance must be in writing, state the specific facts supporting the motion, and be verified or supported by an affidavit. See Serrano, 241 S.W.3d at 564. If the motion is not verified or supported by an affidavit, the reviewing court must presume the trial court did not abuse its discretion by denying the motion. See Serrano, 241 S.W.3d at 564. Verification is “[a] formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the documents.” Andrews v. Stanton, 198 S.W.3d 4, 8 (Tex.App.-El Paso 2006, no pet.).

The trial court signed an order permitting Ms. Harriman’s attorney to withdraw from the case on June 21, 2006. Ms. Har-riman filed a pro se motion for continuance on July 14, 2006. At that time, the case was set for trial on September 18, 2006. The motion represented to the court that Ms. Harriman had only just received her case file from her attorney, that she was pursuing additional orders in the Oklahoma District Court which would affect Mr. Harriman’s claim for child support overpayment, and that the psychologist who had been ordered to investigate the family’s relationships would require at least until January 2007 to complete her review.

The motion was heard in the trial court on August 22, 2006. Mr. Harriman’s attorney objected on the basis that the motion failed to comply with the rules of civil procedure as it was not verified and did not include an affidavit. The court denied the motion on the record during the hearing.

Ms. Harriman admits that her motion failed to comply with the rules. However, she argues that the factual circumstances surrounding the motion are sufficient to overcome the presumption that the trial court’s ruling was not an abuse of discretion. Specifically, she contends that her lack of an attorney three months before trial put her at a disadvantage which led to the court’s exclusion of her trial exhibits, and that the continuance was necessary to allow the Oklahoma Court to conclude and transcribe its proceedings for use in the Texas case.

The issue of her representation was not raised in Ms. Harriman’s motion, nor did she express concern over finding a replacement attorney to the court at the August hearing. As we discussed above, Ms. Har-riman’s trial exhibits were struck due to her failure to comply with a discovery order which the trial court entered approximately four months prior to trial. In addition, there was no necessity for the Dallas Court to postpone the case further to wait for rulings on Ms. Harriman’s Oklahoma motions. Therefore, Ms. Harri-man has failed to overcome the presumption that the trial court’s ruling was an abuse of discretion, and Issue Five is overruled.

Issue Six addresses the trial court’s denial of Ms. Harriman’s motion to reopen the evidence. Ms. Harriman argues the court erred by refusing to consider her offer of proof, or bill of exceptions, which she asserts contain the evidence she would have offered at trial if she had been permitted to introduce her exhibits and witness testimony.

We review the denial of a motion to reopen the evidence under an abuse of discretion standard. Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex.App.-Fort Worth 2006, pet. denied). Texas Rule of Civil Procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice. Tex.R.Civ.P. 270. Rule 270 allows, but does not require, a court to permit additional evidence. Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.). When considering a motion to reopen, the trial court considers whether: (1) the moving party showed due diligence in obtaining the evidence; (2) the proffered evidence is decisive; (3) reception of such evidence will cause undue delay; and (4) granting the motion will cause injustice. Hernandez, 201 S.W.3d at 779. The decision to reopen is within the trial court’s sound discretion. Id.

The trial court’s refusal to allow Ms. Harriman to introduce evidence at trial was due to Ms. Harriman’s own failure to comply with discovery orders. In addition, it is important to note that Ms. Harriman did not have claims for affirmative relief pending at the time of trial. She was before the court solely as the respondent in the modification proceeding, and so had no claim which she was prevented from establishing with evidence. Under these circumstances, the interests of justice did not require the court to provide Ms. Harri-man with a second chance to present her case. See id. Issue Six is overruled.

In Ms. Harriman’s Seventh Issue, she argues that to the extent Mr. Harri-man did pay excess child support between 2001 and July 2004, the “debt” was discharged when she was discharged from bankruptcy. Because Ms. Harriman failed to plead this defense in the trial court as required by Rule 94 of the Texas Rules of Civil Procedure, we need not address this issue. See Tex.R.Civ.P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex.App.-Dallas 2007, no pet.). Issue Seven is overruled.

Having overruled all of Appellant’s issues, we affirm the trial court’s judgment.