Datasets:

AbstractPerspective

/

court_cases15

like 0

https://www.courtlistener.com/api/rest/v3/opinions/5283522/

Nancy Steffen Rahmeyer, J. Jack and Ruth Maxey (the “Maxeys”), through their daughter, Jackie Cernetich, hired Consolidated Service Group, LLC (“Consolidated”), through its agent representative Marc Benz, (collectively, “Plaintiffs”), to put a new roof on their home. Prior to the completion of the job, a dispute arose over defective tiles and the looks of the roof. The Maxeys refused to allow Consolidated to make repairs to the roof and brought suit under the contract. The trial court granted summary judgment to Consolidated under the contract. The Maxeys claim that the court erred in entering summary judgment on Consolidated’s claim for a breach of a roofing contract because Consolidated “failed to plead any facts to support their contention that [Consolidated] had performed their obligations under the terms of the contract” but only pled that the Maxeys had failed to allow Consolidated an opportunity to cure the defective roof as was provided in the contract. The Maxeys also claim trial court error because there is a material question of fact whether Consolidated and Benz abandoned their obligations under the terms of the contract or whether they were prevented from fully performing their obligations under the contract and whether the Maxeys were required to allow Benz an attempt to cure any default. We find no error and affirm the judgment. Our standard of review was set forth in Goerlitz v. City of Maryville, 333 S.W.3d 450, 452-53 (Mo. banc 2011): The trial court makes its decision to grant summary judgment based on the pleadings, record submitted, and the law; therefore, this Court need not defer to the trial court’s determination and reviews the grant of summary judgment de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993); Rule 74.04. In reviewing the decision to grant summary judgment, this Court applies the same criteria as the trial court in determining whether summary judgment was proper. Id. Summary judgment is only proper if the moving party establishes that there is no genuine issue as to the material facts and that the movant is entitled to judgment as a matter of law. Id. The facts contained in affidavits or otherwise in support of a party’s motion are accepted “as true unless contradicted by the non-moving party’s response to the summary judgment motion.” Id. Only genuine disputes as to material facts preclude summary judgment. Id. at 378. A material fact in the context of summary judgment is *770one from which the right to judgment flows. Id. A defending party ... may establish a right to summary judgment by demonstrating: (1) facts negating any one of the elements of the non-movant’s claim; (2) “that the non-movant, after an adequate period for discovery, has not been able and will not be able to produce sufficient evidence to’allow the trier of fact to find the existence of any one” of the elements of the non-movant’s claim; or (3) “that there is no genuine dispute as to the existence of the facts necessary to support movant’s properly pleaded affirmative defense.” Id. at 381. Each of these three methods individually “establishes the right to judgment as a matter of law.” Id. Further, [t]he record below is reviewed in the light most favorable to the party against whom summary judgment was entered, and that party is entitled to the benefit of all reasonable inferences from the record. However, facts contained in affidavits or otherwise in support of the party’s motion are accepted as true unless contradicted by the non-moving party’s response to the summary judgment motion. However, an appellate court reviewing the ruling of a circuit court is bound to consider the forms of the affidavits supporting and opposing summary judgment in accord with Rule 74.04(e),[1] which requires the affidavits to be made on personal knowledge and set forth facts that would be admissible in evidence. Additionally, the affidavit “shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Rule 74.04(e). In addition, the non-movant must support denials with specific references to discovery, exhibits, or affidavits demonstrating a genuine factual issue for trial. Rule 74.04(c)(2), (c)(4). Central Trust and Inv. Co. v. Signalpoint Asset Management, LLC, 422 S.W.3d 312, 320 (Mo. banc 2014) (internal citations and quotations omitted). Because the Maxeys’ second point claims there are material disputed facts, we will commence our discussion with the second point. “[I]f a contractor is prevented from completing the work on a construction project by the actions of the owners, the owners have breached the contract.” Erney v. Freeman, 84 S.W.3d 529, 534 (Mo.App.S.D.2002). Further, “[i]f the work has been partially completed at the time of the owners’ actions, the contractor is excused from his contractual obligations and may cease work on the project.” Id. It is necessary to determine which, if any, party breached by considering whether the contractor’s failure to complete the project, or his ceasing of the work, was due to actions of the owners that prevented him from completing the work or due to the actions of the contractor of walking away from the project. Id. The Maxeys admit before this Court “that the Contract contained a right to cure provision giving [Consolidated] and Benz the right to cure any defects in their performance of the Contract.”2 They contend that there are three material ques*771tions of fact for the trier of fact that prevent summary judgment: (1) whether Consolidated and Benz were afforded an' opportunity to cure when the defective shingles were discovered on the first day but other defective shingles were installed on the second day, (2) whether Benz’s offers were conditional and constituted an abandonment of the project, and (3) whether the Maxeys could have any faith in Benz’s offer to cure. The following undisputed facts that are relevant to the Maxeys’ appeal were submitted to the trial court:3 37. Jackie Cernetich e-mailed Mr. Benz on Monday, November 16, 2009[,] at 9:36 AM and stated, “Marc, with regard to our conversation earlier this morning. I want to confirm that we are not agreeing to anything you have verbally presented to us. Also, as I stated, no work is to be done on our home at 412 North Commercial Street in Crock-er, Missouri, unless approved by us. We need Tamko’s proposal in writing to properly assess their suggested remedy. Jacki [sic] Cernetich.” See Exhibit 4, Deposition of Jackie Cernetich, p. 63-67, and see Exhibit 14, E-mail from Jackie. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 37 of Plaintiffs Statement of Uncontroverted Facts. 38. At no point was Jackie acceptable to any terms provided by GSG as to how they were going to fix the roof. See Exhibit 4, Deposition of Jackie Cerne-tich, p. 67. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 38 of Plaintiffs Statement of Uncontroverted Facts[, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ].[4] 39.At no point did Jackie Cernetich authorize CSG to come back and do work at the house at 412 North Commercial Street in Crocker, Missouri. See Exhibit 4, Deposition of Jackie Cernetich, p. 67-68. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 39 of Plaintiffs Statement of Uncontroverted Facts [, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ]. *77240. Jackie Cernetich never asked Mr. Benz to repair the roof. See Exhibit 4, Deposition of Jackie Cernetich, p. 106. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 40 of Plaintiffs Statement of Uncontroverted Facts[, and specifically states that Plaintiff knowingly installed a defective roof on Defendants’/Third Party Plaintiffs’ home (see Exhibit 5, Deposition of Marc Benz, Page 60, Line 8 through Page 62, Line 15) and the roof on Defendants’/Third Party Plaintiffs’ home needs to be replaced in its entirety (see Exhibit 5, Deposition of Marc Benz, Page 69, Line 21 through Page 71, Line 3) ]. 41. Mr. Benz called Jackie Cernetich multiple times and Jackie Cernetich was annoyed by the amount of phone calls Mr. Benz made. See Exhibit 4, Deposition of Jackie Cernetich, p. 108. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 41 of Plaintiffs Statement of Uncontroverted Facts. 42. Jackie Cernetich did not respond to some of Mr. Benz’[s] emails to her after the roofing project and it is “probably accurate” that she did not respond to most of his emails. Exhibit 4, Deposition of Jackie Cernetich, p. 107. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 42 of Plaintiffs Statement of Uncontroverted Facts. 43. Mr. Benz emailed Jackie on January 14, 2010 attempting to attach a document and stated, “Attached is the document stating that no additional expense will be charged back to your mother. Although the roof will be installed on her residence, payment for materials and labor will be covered by the vouchers provided by Tamko. There will be no shortcuts taken nor will any compromise be made on material quality in an effort to control costs. I want the same thing for you now that lasts for projected life span. Nothing has changed on my end, I will still work just as hard for you to make sure that the new roof gets installed as I did to get the exposed sections covered immediately after construction was complete. Please contact me when you receive this, I need to resolve this immediately. Review the attachment thoroughly and print for your records. I will keep a copy in your file as well. You took a leap of faith when you decided to go with us as your contractor, “No Additional Costs” means no additional costs. I have never went back on my word with any customer, and you are no exception. You trusted us with the original installation, and I have protected your mother[’]s interests completely. At this point I ask that you continue to trust me to protect her interests regarding the installation and finances. I know it is not common anymore, but believe it or not, there are still some individuals in this world who do the right thing and honor the agreements they made, and you were fortunate enough to stumble across one of them. (And on a side note, I would appreciate it if I could use you as a reference after the new roof is installed) Please call me soon. Thank you, Marc” See Exhibit 15, E-mail to Jackie, and See Exhibit 4, Deposition of Jackie Cernetich, p. 89-90, and 104,106. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 43 of Plaintiffs Statement of Uncontroverted Facts. 44.Jackie Cernetich eventually received the attached proposal, proposing to complete Tamko Warranty services upon request for the property known as: *773412 N. Commercial Crocker MO 63452, and said “All work to be completed will be covered by manufactures [sic] warranty. The new roof will be installed on the date requested by the homeowners. Vouchers issued from Tamko will be used to provide materials and labor. If for any reason the cost exceeds the voucher amounts, Consolidated Service Group LLC will cover any additional amounts due. [The homeowners at 412 N. Commercial, Crocker MO will have absolutely no out of pocket expenses for the new roof, labor, materials, or any costs related to the roofing project.] The current balance due after credits and adjustments is 7871.00 (Seven Thousand Eight Hundred Seventy One Dollars and 00/100). For your additional security we would request a check in the amount of 4400.00 (Four Thousand Four Hundred Dollars and 00/100) to be made out to [Arrowhead Building Supply], A check for the remaining balance of 3471.00 (Three Thousand Four Hundred Dollars and 00/100) to be made out to Consolidated Service Group. Lien Waivers for the materials and labor will be issued immediately upon receiving payment.” See- Exhibit 4, Deposition of Jackie Cernetich, p. 89-90, and See Exhibit 16, the proposed attachment. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 44 of Plaintiffs Statement of Uncontroverted Facts; however, Defendants/Third Party Plaintiffs specifically deny that said provision of the Contract obliges Defendants/Third Party Plaintiffs to allow Plaintiff to correct defects in the roof. 45. Jackie Cernetich did not provide written or verbal notice to remedy any defects. See Exhibit 4, Deposition of Jackie Cernetich, page 44. RESPONSE: Defendants/Third Party Plaintiffs admit the allegations contained in Paragraph 45 of Plaintiffs Statement of Uncontroverted Facts. Keeping in mind that the Maxeys claim in their second point that there was a material question of fact whether Consolidated abandoned their obligations under the terms of the contract or whether they were prevented from fully performing their obligations under the contract, it is clear there was no issue of fact contended in the summary judgment motions that Consolidated ever abandoned its obligations under the contract. It is clear from the statement of facts that the Maxeys were clear that Consolidated was not allowed to cure any defect and that Consolidated did not abandon the project. The Maxeys’ claim that defective tiles were discovered on the first day and on the second day does not constitute a refusal to cure by Consolidated. The third contested “material fact,” whether the Maxeys could have “faith” in Benz’s offer, alleged by the Maxeys, is not a “fact” that is relevant to this contract. Consolidated offered and attempted to offer to cure any defects on many occasions. The subjective state of mind of the Maxeys is not at issue. The uncontroverted facts supplied by Consolidated and the responses by the Maxeys are clear that the Maxeys did not allow Consolidated to cure any claims about the defective tiles. It is clear from the record that Consolidated offered a complete new roof at no cost to the Max-eys. The Maxeys did not allow Consolidated to use the vouchers for new tiles that had been given to the Maxeys by the tile company for the defective tiles. The trial court did not err in finding that there were no issues of material fact that Consolidated was prevented from attempting to cure the defects in the roof by the Maxeys. Point II is denied. *774As for the Maxeys’ first point, that Consolidated did not plead a claim for a breach of contract, we find no merit to the point. To prove its breach of contract case, Consolidated had to prove, first, that a contract existed between plaintiff and defendant. Consolidated did so by stating in its summary judgment motion that Jackie Cernetich had the authority to contract to replace the Maxeys’ roof. Further, the Maxeys admit that a contract existed between Plaintiffs and the Maxeys. Second, Consolidated had to prove that Plaintiffs and the Maxeys had certain obligations or duties under the contract. Again, there is no dispute that both parties had obligations and duties under the contract. The Maxeys agreed that they were to pay Consolidated the sum of $8,626.00 under the contract. The Maxeys agree that Consolidated was to provide a satisfactory roof for that price. In this appeal, the Maxeys do not contend that there was no proof of the first element, that a contract existed. Nor do the Maxeys contend that both parties had obligations or duties under the contract, thus the second element was satisfied. Third, Consolidated must have proved that there was a breach of the contract. As discussed in Point II, if the contractor was prevented from completing the work by the actions of the owners, the owners have breached the contract. There is no dispute of material fact that the owners prevented the contractor from completing the work, thus, the third element was satisfied. Finally, Consolidated had to prove damages. Plaintiffs supplied proof in the summary judgment motion that the Maxeys had paid nothing toward the contract and, thus, the contractor was damaged. Thus, each element for a breach of contract was addressed in the summary judgment motion. To the extent that the Maxeys are arguing that the roof is not yet completed and, therefore, Plaintiffs may not sue for a breach of contract, they are mistaken. When the owners prevent the contractor from performing work on the contract, the contractor may either sue on the express contract or on quantum meruit for the value of the labor and materials the contractor has furnished. Statler Mfg., Inc. v. Brown, 691 S.W.2d 445, 448-49 (Mo.App.S.D.1985). The Maxeys admit that there is a right-to-cure provision in the contract, therefore, the refusal to give Plaintiffs an opportunity to cure the defect was an anticipatory breach and grounds for proceeding on a breach of contract action even if Plaintiffs had not completed their work. It was not necessary for Plaintiffs to plead or prove facts that they fully performed or that there was substantial performance. Point I is denied. The judgment is affirmed. Gary W. Lynch, J. — Concurs Don E. Burrell, J. — Concurs . All rule references are to Missouri Court Rules (2014), unless otherwise specified. . In their suggestions to the trial court, the Maxeys did not argue that the contract provision did not provide that Consolidated had a “right-to-cure”; instead, they argued that they did allow Benz to cure the defects on the second day of the installation after defective tiles were discovered. The Maxeys contended that "the uncontroverted facts demonstrate that Plaintiff was given the opportunity to cure the defects found in the Maxey[s'] roof on November 4, 2009 and failed to properly do so.” . Respondents set forth no facts in the brief nor did they give any page cites to the summary judgment motion or responses to the summary judgment. Being mindful that though Respondents are not obligated to file a brief, we review an appeal from summary judgment in the light most favorable to the party against whom judgment was entered. It would be a far better practice to put page cites to the summary judgment motion in support of their argument rather than relying upon this Court to scour the summary judgment motion for the necessary cites. . We have set forth Defendants/Third Party Plaintiffs’ responses in their entirety; however, we note that Rule 74.04(c)(2) does not provide for the material we have enclosed in brackets to be presented in this manner.

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283523/

OPINION MICHAEL MASSENGALE, Justice. Appellants Waller County, Texas and its Commissioners Court consisting of County *74Judge - Glenn Beekendorff and County Commissioners Frank Pokluda, Stan Kitz-man, Jeron Barnett, and John Amsler, all acting in their official capacities (collectively, Waller County), filed a notice of interlocutory appeal. The County attempts to invoke our jurisdiction by asserting that the trial court denied a motion for summary judgment on jurisdictional grounds and thereby effectively denied its plea to the jurisdiction. See Tex. Civ. Prao. & Rem.Code § 51.014(a)(8) (West Supp. 2014). Appellees, the City of Hempstead and Citizens Against the Landfill in Hemp-stead (CALH) contest jurisdiction and have moved to dismiss the appeal. Because the procedural circumstances of this case do not demonstrate that any ruling of the trial court has resolved the County’s jurisdictional challenge'in the trial court and thereby effectively denied a plea to the jurisdiction, we dismiss the appeal. Background The City of Hempstead filed suit against Waller County, and CALH intervened as a plaintiff. The lawsuit challenges the County’s authority to prohibit the disposal of solid waste in certain areas of the County, by way of an ordinance relating to the proposed creation of a landfill on a site that partially overlaps the City’s extraterritorial jurisdiction. Waller County filed both a plea to the jurisdiction and a motion for partial summary judgment on no-evidence and traditional grounds. In the no-evidence portion of the summary-judgment motion, the County argued, among other things, that there was no evidence to support a claim that the challenged ordinance was enacted without authority so as to invoke the district court’s “general supervisory control” over the commissioners court. See Tex. Const, art. V, § 8. The trial court entered an order denying Waller County’s motion for summary judgment, and it has not expressly ruled on the plea to the jurisdiction. At the conclusion of a hearing on the matter, the trial court explained that it was reserving its ruling on the jurisdictional challenge, stating: The Court finds that the pleas to the jurisdiction by the defendants are not ripe for ruling and rather than conduct an evidentiary hearing and a trial on the merits to ascertain and determine the facts, the Court finds that judicial economy dictates proceeding with jury selection and presentation of evidence commencing on December the 1st, 2014. The Court will make a ruling at the appropriate time. This Court has denied a mandamus petition which sought to compel a pretrial ruling on the jurisdictional plea, In re Waller Co., No. 01-14-00916-CV, 2014 WL 6671266 (Tex.App.-Houston [1st Dist.] Nov. 21, 2014), and a similar petition has been filed with the Supreme Court of Texas. After we denied the mandamus petition, Waller County filed its notice of interlocutory appeal from the denial of its motion for summary judgment, which it characterizes as having effectively denied the plea to the jurisdiction. The appellees filed a motion to dismiss the appeal for want of interlocutory appellate jurisdiction, and the County has filed a response to that motion. Analysis An immediate appeal may be taken from an interlocutory order of a district court that grants or denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prao. & Rem.Code § 51.014(a)(8). Waller County asserts that it is entitled to an interlocutory appeal and automatic stay of *75trial proceedings, see'id. § 51.014(b) & (c), because the denial of its motion for summary judgment, which raised jurisdictional issues similar to those in the plea to the jurisdiction, implicitly or effectively denied the jurisdictional plea. The mandamus record previously filed and expressly relied upon by the County in its attempt to demonstrate appellate jurisdiction instead shows that the trial court has not ruled on the jurisdictional issues raised in the plea to the jurisdiction. The trial court expressly refused to rule on the issues raised in the plea to the jurisdiction on the basis that such issues were not ripe. The record independently supports the trial court’s oral characterization of its rulings, because the motion for summary judgment could have been denied due to the existence of genuine issues of material fact, without resolving the merits of the jurisdictional plea. ‘Put another way, if we were to exercise interlocutory jurisdiction over this appeal and affirm the trial court’s ruling because of genuine issues of material jurisdictional facts, Waller County would still be free to assert its jurisdictional challenge based on the resolution of the disputed fact issues. Thus we cannot infer a denial of the jurisdictional plea from the denial of the motion for summary judgment. Waller County relies upon Thomas v. Long, 207 S.W.3d 334, 339 (Tex.2006), and Lazarides v. Farris, 367 S.W.3d 788, 796-97 (Tex.App.-Houston [14th Dist.] 2012, no pet.), for the proposition that an order denying a motion for summary judgment in which the movant challenges the trial court’s jurisdiction is eligible for an interlocutory appeal. We find both cases to be distinguishable. In Thomas, the record on appeal did not include an order explicitly denying a plea to the jurisdiction, but it did include a motion for summary judgment challenging the trial court’s subject matter jurisdiction. Thomas, 207 S.W.3d at 338-39. The Supreme Court held that Section 51.014(a)(8) provided for an interlocutory appeal when a trial court denies a governmental unit’s challenge to subject matter jurisdiction, irrespective of the procedural vehicle used. Id. at 339. Although the trial court did not explicitly deny the relief sought in the defendant’s motion for summary judgment challenging the trial court’s jurisdiction, it did affirmatively grant relief to the plaintiff on claims that were subject to those jurisdictional challenges. Accordingly, the Supreme Court concluded that “the trial court’s rulings on the merits of some claims for which [defendant] argued the trial court lacked subject matter jurisdiction constitute an implicit rejection of [defendant’s] jurisdictional challenges.” Id. Unlike Thomas, there has been no ruling by the trial court in this case on the merits of the appellees’ claims from which it could be implied that Waller County’s jurisdictional arguments had been rejected. In Lazarides, the appellant filed a plea to the jurisdiction and a motion for summary judgment asserting various jurisdictional challenges. Lazarides, 367 S.W.3d at 795. Although the trial court did not expressly grant or deny the appellant’s plea to the jurisdiction, it denied the summary judgment motion. Id. at 796. Following Thomas, the Fourteenth Court held that “[w]hen the record does not contain an order granting or denying a plea to the jurisdiction, but does include an order denying a motion for summary judgment in which the movant challenged the trial court’s jurisdiction, an interlocutory appeal may be taken under subsection (a)(8) irrespective of the selected procedural vehicle.” Id. at 797-98 (citing Thomas, 207 S.W.3d at 339). Unlike Lazarides, the trial court in this case explicitly stated, and the record confirms, that the denial of the County’s motion for summary judgment *76did not imply an adverse ruling on the jurisdictional issues. Instead, the issues remain before the trial court pending resolution of the disputed jurisdictional facts. Finally, the jurisdictional challenges in Thomas and Lazarides appear to have been raised in traditional motions for summary judgment.' Although a trial court’s jurisdiction may be challenged in a traditional motion for summary judgment, the record in this case demonstrates that Waller County’s alleged jurisdictional arguments only were raised in the no-evidence portion of its motion for summary judgment. But this court has previously held that “a court’s subject-matter jurisdiction cannot be challenged in a no-evidence motion for summary judgment.” Green Tree Servicing, LLC v. Woods, 388 S.W.3d 785, 794 (Tex.App.-Houston [1st Dist.] 2012, no pet.); accord Thornton v. Northeast Harris County MUD 1, 447 S.W.3d 23, 39 (Tex.App.-Houston [14th Dist.] 2014, pet. filed). Accordingly, no denial of a jurisdictional plea can be inferred from the denial of a no-evidenee summary judgment argued on jurisdictional grounds. Conclusion Because the trial court did not rule on the plea to jurisdiction (either expressly or implicitly through its denial of Waller County’s motion for summary judgment), we lack jurisdiction over this purported interlocutory appeal. We grant the appel-lees’ motions and dismiss the appeal for want of jurisdiction. See Tex.R.App. P. 42.3(a). CALH’s request for sanctions in the event that the appeal is not dismissed before December 1, 2014 is dismissed as moot. The Clerk is directed to issue the mandate immediately. See Tex.R.App. P. 18.1(c).

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283524/

OPINION SUE WALKER, Justice. I. Introduction Appellant the State of Texas perfected this appeal after the trial court granted Appellee N.RJ.’s petition for an expunction. See Tex.Code.Crim. Proc. Ann. art. 55.02, § 8(a) (West Supp.2014). We will address two issues in this appeal. First, we will determine whether this court’s opinion in S.J. v. State — holding that, to be entitled to an expunction, all charges arising from an arrest must satisfy the éx-punction statute’s requirements — applies to bar expunction in this case of a single charge from a multi-charge arrest. See 438 S.W.3d 838, 845 (Tex.App.-Fort Worth 2014, no pet.). Second, we will address whether an admission of guilt to an offense and a request that the trial court consider that admission as a plea in bar in determining punishment for another offense precludes expunction of the admitted, unadjudicated offense. See Tex. Penal Code Ann. § 12.45 (West 2011); Tex.Code. Crim. Proc. Ann. art. 55.01(a)(2) (West Supp.2014). Because both issues must be answered in the affirmative, we hold that an expuilction is not available in this case, and we reverse the trial court’s order of expunction and render judgment denying N.R.J.’s petition for expunction. II. Background N.R.J. was arrested on December 6, 2007, for the misdemeanor offenses of driving while intoxicated (DWI) and possession of two ounces or less of marijuana. See Tex. Penal Code Ann. § 49.04 (West Supp. 2013); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010). N.R.J. pleaded nolo contendere to DWI, and in the course of his plea, he admitted guilt to the possession offense pursuant to penal code section 12.45 and requested that the trial court take that offense into account in assessing punishment for the DWI offense. See Tex. Penal Code Ann. § 12.45. The trial court found N.R.J. guilty of DWI, considered the possession offense in assessing punishment for DWI, and placed him on community supervision for fifteen months. The trial court ordered that prosecution of N.R.J. for the possession offense be barred with prejudice. N.R.J. subsequently filed a petition for expunction of all criminal records and files relating to his arrest for the possession-of-marijuana offense. After a hearing, the trial court granted the petition and ordered that the records and files relating to the possession offense be expunged. The State perfected this appeal. In three issues, the State argues that the trial court abused its discretion by ordering an expunction for the possession-of-marijuana offense arising out of N.R.J.’s arrest because he was also arrested for and finally convicted of DWI, because he *79admitted his guilt to the possession-of-marijuana offense in the plea in bar, and because the possession offense remained pending.1 III. Standard of Review and Statutory Construction Rules We review a trial court’s decision granting or denying a petition for expunction for an abuse of discretion. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied). However, “[t]o the extent a ruling on ex-punction turns on a question of law, we review the ruling de novo because ‘[a] trial court has no “discretion” in determining what the law is or applying the law to the facts.’ ” Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476, 478 (Tex.App.-San Antonio 2013, no pet.). A trial court abuses its discretion if it orders an expunction of records despite a petitioner’s failure to satisfy all of the statutory requirements. In re O.R.T., 414 S.W.3d 330, 332 (Tex.App.-El Paso 2013, no pet.); Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923, 929 (Tex.App.-Austin 2011, no pet.) (en banc) (op. on reh’g). When construing statutes, we use a de novo standard of review, and our primary objective is to ascertain and give effect to the legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (West 2013); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007). To discern that intent, we begin with the statute’s words. Tex. Gov’t Code Ann. §§ 312.002-.003 (West 2013); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results that the legislature could not possibly have intended. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004). We consider statutes as a whole rather than their isolated provisions. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). We presume that the legislature chooses a statute’s language with care, deciding to include or omit words for a purpose. In re M.N., 262 S.W.3d 799, 802 (Tex.2008). IV. Article 55.01 of the Code of Criminal Procedure The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from the State’s records if he meets the statutory requirements of article 55.01 of the code of criminal procedure. See Tex.Code Crim. Proc. Ann. art. 55.01; Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex.App.-Austin 2010, no pet.) (op. on reh’g). A petitioner’s right to an expunction is purely a matter of statutory privilege, and the petitioner bears the burden of demonstrating that each of the required statutory conditions have been met. Nail, 305 S.W.3d at 674; Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.); see Tex.Code Crim. Proc. Ann. art. 55.01. Article 55.01 was most recently amended in 2011, and the amended article applies here. See Tex Code Crim. Proc. Ann, art. 55.01; Act of May 25, 2011, 82nd Leg., R.S., ch. 894, § 3, 2011 Tex. Sess. Law Serv. 2275, 2276 (West). Article 55.01 provides in relevant part: (a) A person who has been placed under a custodial or noncustodial arrest for *80commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if: [[Image here]] (2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor, provided that: (A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person’s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested: (i) has not been presented against the person at any time following the arrest, and: [[Image here]] [a certain amount of time has elapsed]; or (B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired. Tex.Code Crim. Proc. Ann. art. 55.01(a)(2). The statute entitles a petitioner to have “all records and files relating to the arrest expunged if’ certain conditions are met. Id. (emphasis added). Here, N.R.J. is not seeking, nor is he entitled to, an expunction of all records and files relating to his December 6, 2007 arrest because he was also arrested for DWI on that date and was finally convicted of that offense. See id. He instead seeks expunction of all records and files relating to the possession charge arising from that arrest. V. Expunction Statute is Arrest-Based The State argues in its first issue that the expunction statute does not provide for expunction of an individual charge (like N.R.J.’s possession charge) that arises out of a multi-charge arrest (like N.R.J.’s arrest) unless all charges satisfy article 55.01’s requirements. The State noted in its brief that this was an issue of first impression in this court, but after this case was submitted, we issued our opinion in S.J., holding that “for a petitioner to be entitled to expunction under article 55.01, all charges arising from the arrest must meet that article’s requirements.” 438 S.W.3d at 845. In S.J., the petitioner was arrested for a single offense — aggravated assault — but pleaded nolo contendere to terroristic threat in exchange for dismissal of the aggravated assault charge. Id. at 839. Although the case did not involve a multi-charge arrest like we have in this case, we find our holding in S.J. equally applicable here.2 Our sister courts have also reached the same conclusion as we did in S.J. in multi-charge arrest situations. See In re D.W.H., No. 08-12-00031-CV, — S.W.3d -,-, 2014 WL 5798204, at *3 (Tex. *81App.-El Paso Oct. 22, 2014, no pet. h.) (holding that expunction unavailable for individual charge arising out of arrest for improper relationship between an educator and student when petitioner convicted of possessing illegal firearms arising out of the same transaction); Dicken, 415 S.W.3d at 480 (holding that article 55.01 did not allow expunction of records concerning possession of controlled substance offense when petitioner was also arrested for, and pleaded guilty to, DWI); M.M., 354 S.W.3d at 924 (concluding that former article 55.01 did not provide for expunction of individual records relating to DWI and assault charges when petitioner was also arrested for, and pleaded nolo contendere to, resisting arrest). N.R.J. was arrested and charged with both DWI and possession of marijuana, and because his DWI charge does not satisfy article 55.01’s requirements, he is not entitled to an ex-punction for the possession offense. See 5.J., 438 S.W.3d at 845. The dissent treats N.RJ.’s DWI and possession charges as separate arrests, both occurring on the same date, and asserts that Appellee satisfied the ex-punction requirements for his “possession arrest.”3 Dissent at 78-79. An arrest occurs when a person has been actually placed under restraint or taken into custody by an officer. Tex.Code Crim. Proc. Ann. art. 15.22 (West 2005); see S.J., 438 S.W.3d at 841 n. 6. Regardless of whether multiple cases were filed or multiple bond amounts were set, there was but one arrest on December 6, 2007. Thus, because N.R.J.’s DWI charge arising from his December 6 arrest did not meet article 55.01’s requirements, he is not entitled to an expunetion for the possession offense. See S.J., 438 S.W.3d at 845. We sustain the State’s first issue. VI. No Expunction For Admitted, Unadjudicated Offense Even if the expunction statute contemplates expunctions for a single charge from a multi-charge arrest (or if each charge was considered as a separate arrest as asserted by the dissent), the State argues in its second issue that N.R.J. was not entitled to an expunction for the possession offense because he admitted guilt to that offense as part of a plea in bar. Texas Penal Code section 12.45 provides that during a sentencing hearing and with the State’s consent, a defendant may admit his guilt of an unadjudicated offense and request that the court take the offense into account in determining the sentence for the offense of which he stands adjudged guilty. Tex. Penal Code Ann. § 12.45(a). If the trial court takes into account an admitted offense under section 12.45, prosecution for that offense is barred. Id. § 12.45(c). Whether the records of an offense can be expunged when the petitioner admits guilt to that offense pursuant to penal code section 12.45 presents an issue of first impression in this court. To be entitled to an expunction under subarticle 55.01(a)(2), a petitioner must prove that (1) he has been released, (2) the charge has not resulted in a final conviction and is no longer pending, and (3) “there was no court-ordered community supervision under Arti-*82ele 42.12 for the offense.”4 Tex.Code Crim. Proc. Ann. art. 55.01(a)(2). Recognizing the discord between admitting guilt to an offense and asserting entitlement to an expunction for that offense, several of our sister courts have interpreted the statutory requirement that “the charge has not resulted in a final conviction” as prohibiting an expunction of a plea in bar offense; in other words, those courts have held that a plea in bar offense “resulted in a final conviction” for another offense by virtue of being considered in assessing punishment for the latter offense. Id.; see Dicken, 415 S.W.3d at 480-81; O.R.T., 414 S.W.3d at 336. But see Travis Cnty. Attorney v. J.S.H., 37 S.W.3d 163, 167 (Tex.App.-Austin 2001, no pet.), declined to follow by Tex. Dep’t of Pub. Safety v. G.B.E., — S.W.3d-,-, 2014 WL 1165854, at *7 (Tex.App.-Austin Mar. 20, 2014, pet. filed).5 While this interpretation of the has-not-resulted-in-a-final-conviction language seems somewhat stilted, we agree with our sister courts and similarly hold that when a defendant admits guilt to an offense in the course of pleading guilty or nolo contendere to a second offense, and requests that the trial court account for that admission in determining sentence for the second offense under penal code section 12.45, the admitted, unadjudicated offense is not expungeable; that is, the unadjudicated offense has resulted in a final conviction for purposes of the expunction statute because guilt for the offense was admitted and considered in determining punishment, albeit for another offense. Our interpretation of the expunction statute as a bar to expunction for a plea in bar offense considered under section 12.45 is consistent with another provision of article 55.01. See Sw. Bell Tel. Co. v. Pub. Util. Comm’n of Tex., 888 S.W.2d 921, 926 (Tex.App.-Austin 1994, writ denied) (stating that we do not construe a statutory provision in isolation or give one provision a meaning out of harmony or inconsistent with another provision). Article 55.01(c) prohibits expunction of arrest records for an offense of which the person is subsequently acquitted if that offense “arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.” Tex.Code Crim. Proc. Ann. art. 55.01(c). In this case, had N.R.J. been acquitted of the possession offense, article 55.01(c) would prohibit expunction of the records relating to that offense because he was convicted of DWI arising out of that criminal episode. See Tex. Penal Code Ann. § 3.01 (West 2011) (defining “criminal episode” to mean commission of two or more offenses committed pursuant to the same transaction). We see no reason for the legislature to allow expunction for an offense arising out *83of the same criminal episode as another offense for which a petitioner is convicted when the petitioner admits guilt for that offense pursuant to section 12.45 but not when the petitioner is acquitted of that offense. In fact, to so hold would constitute an absurd and nonsensical result. See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011). Our interpretation of the expunction statute, specifically the has-not:resulted-in-a-final-conviction requirement, is also consistent with our sister courts’ application of this statutory requirement to charges that have been dismissed in exchange for the petitioner’s plea of guilty or no contest to a lesser offense or a separate offense arising out of the arrest when the petitioner was convicted of that lesser or separate offense. Although the section 12.45 procedure does not provide for or require “dismissal” of the admitted, unad-judicated offense, section 12.45 requires that the State agree to its use and, consequently, to be barred from prosecuting that offense in exchange for the defendant admitting guilt to the unadjudicated offense and the trial court considering that offense in punishment for another offense.See Tex. Penal Code Ann. § 12.45. Thus, the section 12.45 procedure resembles a negotiated plea, analogous to the situation in which charges are dismissed in exchange for a defendant’s plea to a lesser or separate offense. See J.S.H., 37 S.W.3d at 164-65 (explaining that section 12.45 procedure saves the State “the cost and effort of prosecuting the additional offenses while the defendant enjoys the ‘slate cleaning’ benefit of disposing of the additional charges without formal prosecution”). Courts analyzing the availability of an ex-punction in the latter situation have unanimously held that an expunction is unavailable for the dismissed charges. See G.B.E., — S.W.3d at-,-, 2014 WL 1165854, at *1, *5-6; see also Ex parte M.G., No. 10-13-00021-CV, 2013 WL 3972225, at *2 (Tex.App.-Waco Aug. 1, 2013, no pet.) (mem. op.) (concluding that the petitioner failed to prove entitlement to expunction under current article 55.01 when he pleaded guilty to a lesser charge in exchange for dismissal); In re J.O., 353 S.W.3d 291, 294 (Tex.App.-El Paso 2011, no pet.) (concluding same under former article 55.01); Rodriguez v. State, 224 S.W.Sd 783, 785 (Tex.App.-Eastland 2007, no pet.) (holding that under former article 55.01, the petitioner was not entitled to an expunction for a theft charge dismissed pursuant to a plea bargain by which she pleaded nolo contendere to issuance of bad check); Tex. Dep’t of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex.App.-San Antonio 1999, no pet.) (concluding that the petitioner was ineligible for expunction where dismissal of the charge was obtained in exchange for plea of no contest to lesser charge). Most recently, the Austin court of appeals interpreted the has-not-resulted-in-a-final-conviction requirement in a case where the petitioner sought an expunction for his DWI charge that had been dismissed in exchange for his plea of no contest to reckless driving. See G.B.E., — S.W.3d at -,-, 2014 WL 1165854, at *1, *5-6. The Austin court held that the DWI charge, although dismissed, had resulted in a final conviction for reckless driving based on the plea bargain: Viewing the statute as a whole and keeping in mind its general purpose of permitting the expunction of wrongful arrests, we conclude that a person is not entitled to have any arrest records arising from a multi-charge arrest expunged under article 55.01(a)(2) when (1) one or more charges result in a conviction (for that particular charge) and (2) any remaining charge is dismissed, but that *84dismissal results in a final conviction of any charge arising from the same arrest. Id. at-, 2014 WL 1165854, at *6. Similarly, in the situation we are faced with today, N.RJ.’s DWI charge resulted in a final conviction and the possession charge is barred from prosecution because the trial court considered that offense — and N.R.J.’s admission of guilt to that offense — in determining the sentence for DWI. N.R.J. argues that the most recent amendments to article 55.01 and their legislative history reflect the legislature’s desire to expand the availability of the expunction remedy and provide for ex-punctions in situations like his. Section 55.01 was enacted “to permit the expunction of records of wrongful arrests.” Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991). And courts applying article 55.01 have consistently held that allowing a person to expunge individual charges arising out of an arrest that was not wrongful is contrary to the primary purpose of the expunction statute. See O.R.T., 414 S.W.3d at 335 (“When a defendant admits guilt to an offense arising out of an arrest, he concedes that the arrest was not wrongful for purposes of the expunction statute.”); Dicken, 415 S.W.3d at 480-81 (stating same); Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139, at *3 (Tex. App.-Waco Mar. 7, 2012, pet. denied) (mem. op.) (stating same); M.M., 354 S.W.3d at 928 (stating same). We acknowledge that the legislative intent behind the most recent amendments to article 55.01 was to lower the barrier to expunctions for cases that have been dismissed. See Senate Research Center, Bill Analysis, Tex. S.B. 462, 82nd Leg., R.S. (Apr. 8, 2011). Specifically, the bill analysis provides, Current law and court decisions have made it increasingly difficult for a person who has certain criminal charges that have been dismissed to receive an expunction. This was compounded by the July 2007, Texas Supreme Court ruling in State v. Beam where the Court ruled that even a Class C misdemeanor that has been dismissed through completion of deferred adjudication cannot be expunged until the statute of limitations for the offense has expired. Texas law allows the records of criminal charges to be expunged only under a narrow set of circumstances. Those circumstances include when a case has resulted in acquittal, when a person has received a pardon, and when the charges are the result of mistaken or misused identify. The ramifications of this legal barrier have negative consequences for persons seeking employment when confronted with employers who now routinely implement background checks. If a case has been dismissed, is no longer under investigation and the subject no longer faces prosecution for the offense, an individual should be able to have a record expunged. Id. The legislature made several amendments to article 55.01 in accordance with this intent. For example, a person may now obtain an expunction of arrest records for a felony or misdemeanor charge that did not result in a final conviction, that is no longer pending, and for which there is no court-ordered community supervision regardless of whether any statute of limitations exists for the offense or whether any limitations period has expired, provided a certain waiting period has passed. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(i)(a)-(c); see also House Comm. Report, Bill Analysis, Tex. C.S.S.B. 462, 82nd Leg., R.S. (Apr. 8, 2011). N.R.J. *85points out that the statute now requires that there was no community supervision ordered for “the offense,” whereas the former version required that there was no community supervision ordered for “any offense.” Compare Tex.Code Crim. Proc. Ann. art. 55.01(a)(2) (emphasis added), with Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3019, 3020 (amended 2011) (current version at Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)) (emphasis added). He argues that this change clarifies that courts should focus solely on the disposition of the offense sought to be expunged. But the requirement that “there is no court-ordered community supervision under Article 42.12 for the offense” is separate from the requirement to show that the charge has not resulted in a final conviction. G.B.E., — S.W.3d at -, 2014 WL 1165854, at *6 (rejecting same argument raised on appeal). Further, nothing in the most recent amendments to article 55.01 shows that the legislature intended to override the statute’s primary purpose of permitting expunction of wrongful arrests.6 And the legislature did not alter the requirement that “the charge, if any, has not resulted in a final conviction.” Compare Tex. Code Crim. Proc. Ann. art. 55.01(a)(2), with Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3019, 3020 (amended 2011); see also Molinet, 356 5.W.3d at 414 (“The Legislature expresses its intent by the words it enacts.”); AT & T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co., 186 S.W.3d 517, 528-29, n. 3 (Tex.2006) (“[T]he statement of a single legislator, even the author and sponsor of the legislation, does not determine legislative intent.”). Viewing the expunction statute as a whole and considering its primary purpose of permitting expunctions of wrongful arrests, we hold that an admission of guilt to an offense in the course of a plea to another offense arising out of the same arrest and a request that the trial court consider that admission in determining sentence for the other offense bars an expunction for the admitted to, unadjudi-cated offense. In this case, N.R.J. pleaded nolo contendere to DWI, and “in the course of [his] plea” and with the State’s consent, he admitted guilt to the possession offense pursuant to section 12.45. The trial court considered the possession offense in assessing punishment for DWI. By admitting guilt to the possession charge, N.R.J. admitted that the arrest was not wrongful. See O.R.T., 414 S.W.3d at 335; M.M., 354 S.W.3d at 926; see also J.T.S., 807 S.W.2d at 574. And because, pursuant to penal code section 12.45, the trial court considered the admitted possession offense in determining sentence for the DWI offense, the possession charge “resulted in” his DWI conviction.7 See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2). *86Based on the foregoing, we conclude that N.R.J. failed to sustain his burden of proving entitlement to expunction. See Nail, 305 S.W.3d at 674; 274 S.W.3d at 806. Accordingly, we hold that the trial court abused its discretion when it granted his petition for expunction. See Heine, 92 S.W.3d at 646; see also O.R.T., 414 S.W.3d at 336. We sustain the State’s second issue. VIL Conclusion Having overruled the State’s third issue and sustained the State’s first and second issues, we reverse the trial court’s judgment and render judgment that N.RJ.’s petition for expunction is denied. DAUPHINOT, J., filed a dissenting opinion. . Contrary to N.RJ.’s argument on appeal, a review of the State's answer and its arguments at the expunction hearing show that the State preserved these issues in the trial court. See Tex.R.App. P. 33.1(a). . In arriving at our holding in Swe considered the prefatory statement in subarticle 55.01(a) that expunctions must apply to all records of one arrest, the remaining provisions in chapter 55 indicating that the remedy of expunction is arrest-based and that partial, content-based removal or redaction of arrest files is not contemplated or sufficient, the decisions of the majority of our sister courts holding that individual charges within an arrest are not subject to expunction, and the long-recognized intent of chapter 55 to allow expunction of only wrongful arrests. Id. at 845. . The dissent states that there were "two separate warrants,” but Moore's arrest was not pursuant to a warrant. The dissent also claims that the officers arrested Appellee for DWI, subsequently found marijuana, and then arrested Appellee for possession of marijuana. This is simply not in the record on appeal; we cannot speculate as to the facts leading up to Appellee’s arrest for DWI and possession of marijuana. . The petitioner must also satisfy either (A) or (B) of subarticle 55.01(a)(2), which are quoted in full above. See Tex.Code Crim. Proc. Ann. art. 55.01 (a)(2)(A)-(B). . In J.S.H., the Austin court held that an admitted, unadjudicated offense considered by the trial court pursuant to section 12.45 is not a "final conviction.” See 37 S.W.3d at 167. We agree; as we have previously stated, "offenses barred under section 12.45 are neither convictions nor part of a defendant's prior criminal record.” See Ex parte Karlson, 282 S.W.3d 118, 127 (Tex.App.-Fort Worth 2009, pet. ref d). But J.S.H. did not consider whether an admitted, unadjudicated offense taken into account in punishment for another offense resulted in a final conviction for that other offense. See 37 S.W.3d at 167. Recently in G.B.E., the Austin court declined to follow its holding in J.S.H. to the extent that it conflicts with G.B.E., which we detail below. See G.B.E., - S.W.3d at -, 2014 WL 1165854, at *6 (emphasizing that subarticle 55.01(a)(2) does not require the petitioner to prove that the charge has not resulted in a final conviction “of that particular charge”). . As evidence that article 55.01 allows for expunctions in absence of a wrongful arrest, the dissent points to a provision in the statute that allows an expunction when the indictment or information was dismissed or quashed because the person completed a pretrial intervention program. Dissent at 78. We do not dispute that the legislature may— and has' — provided for expunctions in absence of a wrongful arrest, and has made amendments to the statute geared toward "rehabilitation,” see Nail, 305 S.W.3d at 682, but a plea in bar like that presented in this case does not serve a rehabilitative purpose, unlike a pretrial intervention program. See Tex. Gov’t Code Ann. § 76.011 (West Supp.2014) (providing for programs for the supervision and rehabilitation of persons pretrial). And the primary purpose of article 55.01 remains to apply to wrongful arrests. . The State argues in its third issue that the possession charge “remained pending” following his plea in bar. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2) (requiring that the *86charge “has not resulted in a final conviction and is no longer pending") (emphasis added). We fail to see how an offense remains "pending” following a plea in bar in which prosecution for that offense is barred. The State relies on M.M. for support, specifically its conclusion that although the State was not permitted to prosecute M.M. for an offense taken into consideration under section 12.45, the indictment for that offense "was not dismissed and remained pending." 354 S.W.3d at 925 (emphasis added). But M.M. specifically applied and dealt with former subarticle 55.01(a)(2)(A)’s requirement that any felony indictment be "dismissed," which is not applicable here. See id. at 925, 927. We overrule the State’s third issue.

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283525/

LEE ANN DAUPHINOT, Justice, dissenting. I respectfully dissent from the majority opinion. Appellee was arrested for driving while intoxicated (DWI), and he was arrested for possession of marijuana.1 That is, there were two separate arrests pursuant to two separate warrants.2 Even though both arrests occurred on the same date, two separate cases were filed, and two separate bond amounts were set by the court. Ap-pellee could secure his pretrial release only by posting two separate bail bonds, BOND ID# 763645 in the possession case and BOND ID# 763646 in the DWI case.3 The possession case was designated Case No. CR-2008-00672-D, while the DWI case was designated Case No. CR-2008-00674-D. The majority correctly states that “[a]n arrest occurs when a person has been actually placed under restraint or taken into custody by an officer.”4 Appellee was arrested for DWI. Subsequently, the officer discovered the marijuana and arrested Ap-pellee for possession of marijuana. Yet, the majority reaches the puzzling conclusion, unsupported by any authority, that “[rjegardless of whether multiple cases were filed or multiple bond amounts were set, there was but one arrest on December 6, 2007.”5 Is the majority confusing trips to the jail for booking with arrests? If a defendant had been accused óf committing an offense in jail, would the majority argue that there was but one arrest because he had already been placed under restraint? The plea in bar permitted the trial court to consider Appellee’s admission of guilt in the possession case only to assess punishment in the DWI case, not to support the DWI conviction. Although the majority insists that the new expunction statute ap*87plies only to wrongful arrests,6 Article 55.01 specifically permits expunction when “the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code.”7 Admission to a pre-trial intervention program does not require actual innocence and may require an admission of guilt: taking responsibility for one’s actions.8 I suggest that the real question before us is the proper scope of the expunction. The original stop was for DWI. The circumstances of the original DWI detention are not subject to expunction. Any signs of intoxication are not subject to expunction. The DWI arrest and subsequent breath test are not subject to expunction. The only matters subject to expunction are the discovery of the contraband marijuana and those matters directly related to the marijuana possession arrest and prosecution. The expunction statute is clear.9 Appel-lee’s possession arrest did not result in conviction for possession, nor did it result in conviction for a lesser included offense of the possession charge. The possession arrest also did not result in deferred adjudication community supervision for that offense. We should affirm the trial court’s action. Had the legislature intended to add another requirement for expunction, such as the requirement that the case not have been considered in assessing punishment in a different case under penal code section 12.45, the legislature was quite capable of doing so. It did not. It is not the place of the courts to “improve on” the language of a statute, no matter how great the temptation.10 I therefore respectfully dissent from the majority opinion. . See Tex. Penal Code Ann. § 49.04 (West Supp.2014); Tex. Health & Safety Code Ann. § 481.121(b)(1) (West 2010). . See Tex.R. Evid. 201(b)-(c). . See id. . Majority Op. at 81. . Id. at 81. . Id. at 80 n. 2. . Tex.Code Crim. Proc. Ann. art. 55.01 (a)(2)(A)(ii) (West Supp.2014). . See, e.g., Tarrant Cnty., Tex., D.I.R.E.C.T.— Drug Impact Rehabilitation Enhanced Comprehensive Treatment Diversion Program, available at https://www.tarrantcounty.com/ direct/site/default.asp (noting that each participant is required to enter a guilty plea) (last visited Nov. 19, 2014). . See Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex.2004). .See Lamie v. U.S. Trustee, 540 U.S. 526, 542, 124 S.Ct. 1023, 1034, 157 L.Ed.2d 1024 (2004); Getts v. State, 155 S.W.3d 153, 158 (Tex.Crim.App.2005) (quoting Lamie, 540 U.S. at 542, 124 S.Ct. at 1034); see also In re M.N., 262 S.W.3d 799, 802 (Tex.2008) ("We ... presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.” (citations omitted)).

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283526/

OPINION Bob Pemberton, Justice State Farm Lloyds appeals a district court judgment affirming a final order of the Commissioner of Insurance determining that it had charged consumers homeowners insurance premiums that were excessive for several years during the 2000s and ordering refunds with interest. We will affirm the Commissioner’s order with respect to the first year at issue, but must reverse as to the remaining years and remand for further proceedings. We also hold that there was reversible error in the Commissioner’s award of interest on refunds he determined to be due. BACKGROUND This appeal arises from the proceedings on remand this Court required in Geeslin v. State Farm Lloyds (State Farm Lloyds I),2 and we will refer the reader to that opinion for a comprehensive explanation of statutory context and procedural prologue. On remand, the Texas Department of Insurance (TDI) noticed a “re-hearing” to determine whether the Commissioner should affirm the reduction TDI had ordered in the “initial rate” State Farm Lloyds had filed under former art. 5.26-1 of the Insurance Code,3 or require a greater or lesser reduction instead.4 The Office of Public Insurance Counsel (OPIC) intervened. The hearing was ultimately conducted over several days in 2009, and the record was closed in November of that year. The State Farm Lloyds “rate” in dispute at the hearing referred to “the cost of insurance per exposure unit ... with an *92adjustment to account for the treatment of expenses, profit, and individual insurer variation in loss experience, and before any application of individual risk variations.” 5 Former art. 5.26-1 required that the “initial rate” filed by State Farm Lloyds and ultimately'approved by TDI be “just, reasonable, adequate, not excessive, and not unfairly discriminatory for the risks to which it applies.”6 These requirements, simply put, mean that an insurer charges consumers a price sufficient to recover both its projected expenses of asT suming risks under its policy and a profit yielding a “reasonable” rate of return on its capital, but not a profit “unreasonably” higher than this.7 The requirements also operate against a constitutional backdrop. This Court has held — most recently in State Farm Lloyds I — that government-set rates are deemed to effect an unconstitutional taking of an insurer’s property if the insurer cannot recover both its projected “operating expenses” and a “reasonable rate of return” on its capital.8 In advocating their views of a reasonable rate that would comply with these statutory and constitutional requirements, the parties, generally speaking, followed a common methodology in which they calculated an “indicated” rate comprised of the sum of several specified categories of projected expenses per exposure unit (e.g., estimated payments or losses related to hurricanes), plus an additional “underwriting profit” provision calculated so as to ensure that State Farm Lloyds obtained an overall profit (including net income from both premiums and investments) suf*93ficient to provide a rate of return on its capital equivalent to that which it could obtain in alternative investments of equivalent risk (i.e., a return compensating it for the “opportunity cost” of its capital).9 The indicated rate would then be compared to the premium State Farm Lloyds was projected to earn per exposure unit under the filed initial rate it had charged its customers. If the indicated rate was less than State Farm Lloyds’s projected premiums, its initial rate would be deemed excessive. Conversely, if the indicated rate equaled or exceeded the projected premiums, a rate reduction would be considered confiscatory. Although generally following the same method for calculating the indicated rate and any required reduction, the parties differed with respect to the cost or expense elements that should be included in the indicated rate and their amount. The issues were further framed by an unusual procedural posture on remand. As explained in State Farm Lloyds I, former art. 5.26-1 (a component of the 78th Legislature’s watershed S.B. 14) had governed the first of three phases through which the Legislature imposed rate regulation on what had become a largely unregulated Texas homeowners insurance market.10 Under former art. 5.26-1, effective June 11, 2003 through August 31, 2004, insurers were required to file their initial regulated rates within 20 days of the statute’s effective date and implement them.11 After this initial filing, former art. 5.142, effective June 11, 2003, through November 30, 2004, provided temporary rate-regulation procedures.12 Under former art. 5.142, insurers were required to file their rates with TDI and await the Commissioner’s approval before implementing them.13 Then, beginning on December 1, 2004, a permanent file-and-use regime, governed by former art. 5.13-2 of the Insurance Code (now codified as chapter 2251 of that code)14 took effect whereby insurers file their rates with TDI and implement them, subject to the Commissioner’s power to disapprove the rates before they go into effect or disapprove further use of the rates after they go into effect.15 In State Farm Lloyds’s case, TDI had ordered, and the Commissioner had affirmed, a 12% reduction in the insurer’s initial filed rate. This reduction, all other things being equal, would have taken effect on September 7, 2003. However, in former art. 5.26-I, the Legislature had allowed an insurer who sought judicial review of a rate-reduction order, as State Farm Lloyds had, the *94option of charging its filed rate while litigation was pending,16 subject to mandatory refunds of “the difference in overcharged premium to each policyholder, plus interest,” if “on final appeal the court upholds the commissioner’s determination that the insurer’s rates are excessive.”17 State Farm had availed itself of this option and continued charging its initial filed rate (which we will term its “implemented rate”), notwithstanding the Commissioner’s opposition to it, pending litigation over its validity. As events turned out, the first round of litigation over State Farm Lloyds’s implemented rate had not concluded until 2008, when this Court issued its State Farm Lloyds I decision. In remanding the case to the Commissioner for further proceedings despite former art. 5.26-1’s expiration on September 1, 2004, this Court observed that the Legislature had provided that the expiration ‘“does not affect an action or proceeding against an insurer subject to that law for failure to comply with that law before its expiration, regardless of when the action or proceeding was commenced, and that law is continued in effect for that purpose.’”18 In the meantime, however, State Farm Lloyds’s implemented rate has remained in effect not only as its operative initial rate under former art. 5.26-1, but also as the insurer’s operative rate under former art. 5.142, which had contained parallel provisions authorizing the insurer to charge its desired rate • pending appeal, subject to refunds with interest if the rate was later found excessive.19 State Farm Lloyds had similarly continued charging the implemented rate as the file-and-use regime began on December 1, 2004, and would ultimately do so, despite TDI’s attempts to restrict the insurer from continuing to charge the rate and the insurer’s efforts to obtain rate increases,20 until mid-2008, when the Commissioner finally approved increased rates effective on June 1 for new business and August 1 for renewal business. Consequently, the dispute on remand concerned whether State Farm Lloyds, through its implemented rate, had overcharged its policyholders not only between September 7, 2003, and August 31, 2004, the period in which former art. 5.26-1 had been in effect, but whether it had continued to do so for several years thereafter. The statutory standards governing the “excessiveness” of State Farm’s “rate” after September 1, 2004, were essentially identical to those applicable under former art. 5.26-1.21 But while the hearing on remand thus concerned whether State Farm Lloyds had overcharged its customers in the past, the Commissioner emphasized that “ratemak-ing is a prospective endeavor,” alluding to the longstanding principles barring retroactive ratemaking, the making of “a retrospective inquiry to determine whether a prior rate was reasonable and imposing a surcharge when rates were too low or a refund when rates are too high.”22 He *95likewise observed that both the relevant Insurance Code provisions23 and actuarial principles24 contemplated prospective ratemaking based on estimates of future costs, and he additionally deemed it “unfair to judge the reasonableness of any of the parties’ estimates of future costs based on information that was unknowable” at the time the estimates were made.” (Emphases in original.) Thus, the proper rate-making inquiry on remand, as the Commissioner reasoned, centered not on real-life events that had occurred while the implemented rate was in effect, viewed in hindsight — as he put it, “retrospective evidence ... has no business in a rate hearing” — but on the rate or rates the Commissioner should have set prospectively from the perspective of a time preceding the period or periods in which the rate was used. To that end, the Commissioner focused the inquiry on information known or “knowable” as of early September 2003, the date of the original hearing.25 However, the Commissioner did conclude that evidence of State Farm Lloyds’s financial condition as of the time of the rehearing would be relevant to assessing the impact of any refunds he might order. A related question concerned the time intervals for the rate or rates the Commissioner would determine — not only the period in which former art. 5.26-1 had been in effect, and for which the cost estimates underlying State Farm Lloyds’s implemented rate had been made, but almost four years thereafter, far longer than the typical one-year term of a homeowner’s insurance policy. The Commissioner ultimately focused the inquiry primarily on determining the rate that should have applied during an “initial term” between September 7, 2003 and August 31, 2004, corresponding roughly to the period in which former art. 5.26-1 had been in effect and for which the implemented rate had been designed. Then, utilizing his initial-term indicated rate as a starting point, the Commissioner considered the extent to which adjustments or modifications to the indicated rate should be made during the “subsequent period” between September 1, 2004 and July 31, 2008. A further development impacting the hearing’s procedural posture had been the 2004 discovery of an error in State Farm Lloyds’s original premium projections under the implemented rate that had caused it to significantly overstate the figure. TDI had also relied on the same premium projections, and the error had correspondingly skewed upward the amount of rate reduction it determined necessary to conform State Farm’s Lloyds’s implemented rate with the agency’s view of the proper *96indicated rate. The Commissioner deemed this error to be “knowable” at the time of the first hearing, and TDI agreed that its calculations should be revised and abandoned its advocacy of the original 12% rate reduction. Accordingly, the Commissioner found that TDI’s original 12% reduction would “produce a confiscatory rate” and, as such, that State Farm Lloyds had met its initial burden under former art. 5.26-1 (as modified by State Farm Lloyds I) to show by clear and convincing evidence that TDI’s rate would not be “just, reasonable, [and] adequate ... for the risks to which it applies.”26 And with that burden being met, the Commissioner reasoned, the relevant “issue for determination” became simply “the development of rates chargeable by SFL [State Farm Lloyds] which are just and reasonable and neither confiscatory nor excessive for the risks to which they apply.” In the Commissioner’s view, “[n]either [TDI] Staff nor SFL bore the burden of production or persuasion on this issue.” After correcting for the erroneous premium projections, TDI determined that State Farm Lloyds’s implemented rate had been excessive by over 9% through June 2004. OPIC, on the other hand, did not correct for the error and urged rate reductions in line with TDI’s original position. In contrast, State Farm Lloyds insisted that the Commissioner adopt its implemented rate in lieu of any reduction because its costs had actually justified a 12% rate increase over its implemented rate, had it opted to seek one.27 Although there were other areas of divergence in the parties’ respective calculations of the indicated rate, this appeal would ultimately center on two. The first, presenting what the Commissioner would term the most “vexing and difficult” issue in the proceeding, concerned a provision State Farm Lloyds had included in its rate to aid its recovery from large financial losses it had incurred a few years earlier. Between 2000 and 2002, State Farm Lloyds had incurred almost $2 million in underwriting losses from unanticipated mold claims and a multitude of non-hurricane catastrophes (e.g., tornadoes, hailstorms, and ice storms).28 The aggregate losses had dwarfed the preexisting amount of State Farm Lloyds’s surplus, the cash reserves that insurers are required to maintain beyond the amounts reserved for incurred and expected claims, which serve as a “cushion” against losses not anticipated in the existing rate. By statute, State Farm Lloyds was required to maintain a minimum surplus equaling one-third of its total premiums — 33$ for every $1 of premium, or a 3:1 premium-to-surplus ratio — or else be deemed “statutorily insolvent” and potentially subject to supervision or conservatorship.29 Amid its losses, there is no dispute that State Farm Lloyds would have been rendered statutorily insolvent absent large cash infusions, and thus it had turned to an affiliate, State Farm Mutual Automobile Insurance Com*97pany (State Farm Mutual), and obtained three advances — in November 2001, February 2002, and September 2002 — in amounts totaling over one billion dollars. When State Farm Lloyds filed its initial rate in June 2003, its surplus was just below $467 million, giving it a premium-to-surplus ratio of roughly 2.8:1. The advances from State Farm Mutual had formed the consideration for a $1.05 billion “consolidated surplus debenture” that State Farm Lloyds had issued to State Farm Mutual. The parties agree that the terms of this instrument distinguish it as a “surplus note,” a type of financial instrument that evidently has been used in the insurance industry for decades30 and has specifically been addressed by TDI rule.31 As the term suggests, a “surplus note” is in the nature of a debt instrument, but the interests of the creditor are subordinated in a manner permitting the proceeds to be initially treated for accounting purposes as unencumbered surplus, similar to equity capital. In the case of State Farm Lloyds’s surplus note, it reflects that the insurer owes State Farm Mutual a principal amount of $1.05 billion, plus interest accruing at 7% per annum, compounded and payable semiannually, with a maturity date of December 31, 2016. However, tracking requirements from TDI’s rules,32 the instrument conditions State Farm Lloyds’s payment obligation on the existence of surplus exceeding specified threshold amounts — principal is to be repaid only out of “excess surplus funds” that exceed $900 million, while semi-annual interest payments are to be made only from surplus, if any, that exceeds $700 million. Similarly, only if and to the extent these payment obligations actually arise is any offsetting liability recognized.33 Of final note, TDI’s rules require that the Commissioner give prior approval to any surplus notes before issuance,34 and State Farm Lloyds obtained such approval here. State Farm Lloyds had included in its rate indication a “surplus note” provision in the amount of 9% of premium. This amount, as explained by the insurer’s witnesses during the hearing, was intended to (1) capture the annual costs of repaying the principal on the surplus note, plus interest, amortized over a 15-year term,35 plus (2) provide additional funds to increase State Farm Lloyds’s surplus (net of the funds going toward the surplus-note payments) at a rate so as to equal the amount of the company’s projected annual premiums (i.e., 1:1 premium-to-surplus ratio) within nine years. Both TDI and OPIC opposed the inclusion of the surplus-note provision in the rate, urging that State Farm Lloyds was entitled to recover only the opportunity cost of the surplus-note proceeds, not additional sums to recapitalize the company, and that the compa*98ny’s rate would already ensure it this recovery through the rate of return secured by the underwriting-profit provision. In addition to its surplus-note provision, State Farm Lloyds had included an underwriting-profit provision in its rate, equal to 5% of premiums, determining that this amount would provide it a rate of return on its capital equivalent to alternative investments of similar risk. TDI had agreed that this underwriting-profit figure was appropriate for recovering State Farm Lloyds’s costs of capital — including any recoverable costs related to the surplus note. In contrast, State Farm Lloyds insisted that the costs of amortizing the surplus-note principal and “rebuilding” the company’s surplus, as it sought to recover through the surplus-note provision, were instead in the nature of expenses of providing homeowner’s insurance in the volatile Texas market, akin to projected payments on claims, and were appropriately compensated in the rate separately and apart from its costs of capital recovered through underwriting profit and rate of return. The second material disputed rate component was a “contingencies” provision, equal to 2% of premium, that State Farm Lloyds had included in its rate. The Commissioner heard evidence, and the parties appear generally to agree, that a “contingencies” provision, like underwriting profit, is an accepted means by which ratemak-ers account for the cost of capital in light of risk.36 Underwriting profit is said to account for the undifferentiated risk that an insurer’s actual expenses will turn out to vary from the estimates that the rate is designed to recover within any given period.37 But where deviations between an insurer’s estimated and actual expenses can be shown to persist systematically over time and be incapable of being eliminated by changing other components of the ratemaking process, it is considered appropriate to include in the rate an additional contingencies provision to compensate for the expected range of unanticipated losses.38 Thus, to summarize the difference between the two types of provisions, a contingency provision seeks to recover an expected range of losses and is thus not expected to be realized as profit, while an underwriting-profit provision yields an expected profit that accounts for variability in results.39 In attempting to establish the requisite systematic deviations between estimated and actual expenses, State Farm Lloyds relied in part on evidence of past court decisions that had effectively broadened coverage beyond what was contemplated in its rate structure. Initially, both TDI and OPIC opposed inclusion of a contingencies provision. Although TDI eventually acceded to the provision, OPIC maintained that State Farm Lloyds had failed to demonstrate any pattern of deviations that had not been addressed by intervening regulatory changes. It emphasized, for example, that the Commissioner in 2002 had approved new homeowners-policy forms that unequivocally excluded mold coverage. The Commissioner determined that neither State Farm Lloyds’s 9% surplus-note provision nor its 2% contingencies provision should be included in the insurer’s *99rate. Regarding the former, the Commissioner agreed with TDI and OPIC that State Farm Lloyds was entitled to recover only the cost of the surplus-note proceeds that would already be compensated through a reasonable return on capital ensured through the underwriting-profit provision. Consequently, he reasoned that “[a]llowing a separate provision for a write-down or amortization of SFL’s surplus note and related interest would be tantamount to allowing two returns on capital in the ratemaking formula.” The Commissioner similarly concluded that “[i]t is unreasonable to include principal and interest payments oh the surplus note as an expense in SFL’s rates” and that doing so “in addition to rate provisions which already contemplate SFL’s expected future costs, including its cost of capital, will produce excessive rates.” As for the contingencies provision, the Commissioner found that “[t]he evidence does not support a conclusion that there is a systematic variation between expected costs and actual costs.” Accordingly, he concluded that “[i]nelusion of a contingency provision over and above a reasonable underwriting profit provision which reflects the risks of SFL writing homeowners insurance in Texas in 2008 will produce excessive rates.” But while deciding that these specific rate provisions were unwarranted and inappropriate, the Commissioner determined that the underlying evidence was nonetheless probative of risk that had not yet been sufficiently accounted for in State Farm Lloyds’s calculation of underwriting profit. Although stopping short of finding that a “systematic variation between expected costs and actual costs” actually existed so as to warrant a contingencies provision, the Commissioner found that there “may be ” such a variation (emphasis in original), that this “conclusion ... implies risk,” and that “this risk can be considered and addressed in deriving an appropriate underwriting profit ... provision.” Similarly, with respect to the surplus-note obligation, the Commissioner found that: While the inclusion of the separate 9.0% surplus note provision in the ratemaking formula would be unreasonable, it is reasonable to consider the existence of the surplus note, and the need for both the principal and related interest to be paid by December 31, 2016, in considering the reasonableness of the underwriting profit provision. Specifically, the Commissioner finds it is reasonable to consider the existence of the surplus note, and SFL’s obligation to timely repay it when determining: (1) the level of risk faced by SFL in writing homeowners insurance in 2008; (2) an appropriate premium to surplus ratio [as explained below, a method of weighing risk] or cost of capital; and (3) an appropriate underwriting profit provision. The Commissioner additionally found that the analysis should also consider another “indication of risk” that had been “brought forth in the record”: “[t]he fact that SFL is a single-state insurer deriving almost its entire premium from a single line of insurance which includes catastrophe coverage in a catastrophe-prone state.” And while the Commissioner acknowledged evidence that “SFL is making significant provision for catastrophe reinsurance” (i.e., shifting the risk of such losses to the reinsurer)— in fact, the Commissioner ultimately approved including a rate component to fund such coverage — he also found that “some catastrophe exposure” faced by State Farm Lloyds “is not fully covered by reinsurance.” 40 *100In light of these indicators of additional risk he had identified, the Commissioner, to summarize his analysis, recalculated underwriting profit using the same basic methodology that State Farm Lloyds had utilized, but with greater weighting of risk in the equation. Based on this analysis, the Commissioner concluded that an appropriate underwriting profit for State Farm Lloyds during the initial period was 8.5% of premium — in other words, an underwriting profit 3.5% higher than the company itself had sought, and 1.5% higher than the combined total of the company’s underwriting-profit and contingencies provisions. Despite this increase in the underwriting-profit component of the Commissioner’s rate indication, State Farm Lloyds’s implemented rate remained excessive by comparison. In accordance with the difference, the Commissioner concluded that a “rate reduction of -6.2% ... produces rates that are both just and reasonable and neither excessive nor confiscatory for the period September 7, 2003, through August 31, 2004.” He then turned to the “subsequent period” between September 1, 2004 and July 31, 2008. The Commissioner rejected arguments by OPIC that he should merely extend the initial-period rate indication unchanged through the subsequent period, finding that “[tjhere is no evidence in the record to suggest that SFL’s rates remained at the same level of excessiveness for the entire period” and that, to the contrary, the “evidence ... suggests] the level of excessiveness of SFL’s rates declined over time.” To account for these changes, the Commissioner, relying on the same data set of September 2003 information from which the initial rate had been derived, projected trends of increases in several cost components of the rate (which would tend to justify a higher rate) into the subsequent period to determine a single rate for that entire period. But while determining these cost elements prospectively from the perspective of September 2003, the Commissioner also reduced the underwriting-profit component of the rate based on events that had occurred much later. In 2006 and 2007, State Farm Lloyds’s non-hurricane catastrophe losses had turned out to be significantly lower than the projections built into its implemented rate, causing the insurer’s surplus to increase to an extent that it had been able to pay both accrued interest on the surplus note and large amounts of principal. Finding that “[djuring the subsequent period SFL [had] repaid approximately $400 million, or more than one-third, of the surplus note principal,” the Commissioner deemed it “reasonable to consider the repayment of $400 million of surplus note principal during the subsequent period when evaluating the risk associated with the repayment of the $1.05 billion surplus note.” On that basis, he determined that a “reasonable underwriting profit provision used to determine the rate in the subsequent period is 8.0%,” a reduction of one-half of one percent from the underwriting profit in the ordered rate for the initial period. Incorporating the lower underwriting profit into the flat rate the Commissioner had calculated for the subsequent period yielded an indicated rate that was 3.4% lower than State Farm Lloyds’s implemented rate throughout the entire subsequent period. *101In light of his determinations that State Farm Lloyds’s implemented rate had been excessive during both the initial and subsequent periods, the Commissioner ordered that the insurer refund the difference to its policyholders. He estimated the gross amount of these refunds to be $256.7 million, plus accrued interest of approximately $53.0 million. The Commissioner found, however, that the insurer could provide these refunds in the form of credits to policyholders during the initial or subsequent period who renewed their coverage. State Farm Lloyds timely sought judicial review of the Commissioner’s final order in the district court below.41 On evidence consisting solely of the administrative record, the district court affirmed the Commissioner’s order in full. State Farm Lloyds then perfected this appeal. ANALYSIS State Farm Lloyds brings six points of error on appeal. Collectively, the points challenge, based on an assortment of evi-dentiary and constitutional grounds, (1) the Commissioner’s refusal to include the surplus-note provision in State Farm Lloyds’s rate; (2) the Commissioner’s refusal to include the 2% contingencies provision in the rate; (3) the Commissioner’s determination of the underwriting-profit component of the rate for the initial period; (4) the rate the Commissioner imposed for the “subsequent period;” (5) the refunds ordered by the Commissioner; and (6) interest awarded by the Commissioner on amounts he held to be due. Standard of review The parties agree that judicial review is governed by the familiar standard set forth in section 2001.174 of the Administrative Procedure Act (APA): [A]court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but: (1) may affirm the decision of the agency in whole or in part; and (2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (A) in violation of a constitutional or statutory provision; (B) in excess of the agency’s statutory authority; (C) made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.42 Essentially, this is a rational-basis test to determine, as a matter of law, whether an agency’s order finds reasonable support in the record.43 “The test is not whether the agency made the correct conclusion in our *102view, but whether some reasonable basis exists in the record for the agency’s action.”44 We apply this analysis without deference to the district court’s judgment.45 We presume that the agency’s findings, inferences, conclusions, and decisions are supported by substantial evidence, and the burden is on the contestant to demonstrate otherwise.46 Substantial-evidence analysis entails two component inquiries: (1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency’s decision or action and, in turn, (2) whether the findings of underlying fact are reasonably supported by evidence.47 The second inquiry, which has been termed the “crux” of substantial-evidence review,48 is highly deferential to the agency’s determination: “substantial evidence” in this sense “does not mean a large or considerable amount of evidence” — in fact, the evidence may even preponderate against the agency’s finding — but requires only “such relevant evidence as a reasonable mind might accept as adequate to support a [finding] of fact.”49 Likewise, we “may not substitute [our] judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion.” 50 In contrast, the first inquiry, concerning the extent to which the underlying facts found by the agency logically support its ultimate decision or action, may entail questions of law that we review de novo.51 State Farm Lloyds’s points of error implicate both deferential aspects of substantial-evidence review and issues that we must examine de novo. Foremost among the latter are State Farm Lloyds’s arguments grounded in constitutional takings principles, which substantially overlap and interrelate with their non-constitutional grounds.52 Although these principles derive from both the Texas and federal constitutions,53 the parties have not suggested *103any material substantive difference between these provisions as they impact this case, so we will assume there are none.54 Similarly, in invoking competing views of these principles and their application here, both sides have relied primarily on jurisprudence from the United States Supreme Court applying the Takings Clause of the federal constitution, with much emphasis on its seminal Hope Natural Gas decision.55 Under these authorities, the United States Supreme Court has explained, “[t]he guiding principle has been that the Constitution protects [regulated entities] from being limited to a charge for their property serving the public which is so ‘unjust’ as to be confiscatory,” a charge that is “ ‘so unjust as to destroy [the] value of the property for all the purposes for which it was acquired,’ and in so doing ‘practically deprive[s] the owner of property without due process of law.’”56 But above this constitutional floor, a rate “may reduce the value of the property which is being regulated” or “limit stringently the return recovered on investment.”57 “All that is protected against, in a constitutional sense, is that the rates fixed by the [government] be higher than a confiscatory level.”58 Starting with Hope, the Supreme Court began focusing this inquiry not on the precise methodology through which a rate is formulated, but on a rate order’s “end result”: It is not theory but the impact of the rate order that counts. If the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry ... is at an end. The fact that the method employed to reach that result *104may contain infirmities is not then important.59 Thus, as far as constitutional takings principles are concerned, a governmental rate-maker “[i]s not bound to the use of any single formula or combination of formulae in determining rates.”60 Hope further explained that evaluating the justness and reasonableness of a rate’s “end result” entails “a balancing of the investor and the consumer interests.” 61 In that analysis: [T]he investor interest has a legitimate concern with the financial integrity of the company whose rates are being regulated. From the investor or company point of view it is important that there be enough revenue not only for operating expenses but also for the capital costs of the business. These include service on the debt and dividends on the stock. By that standard, the return to the equity owner should be commensurate with returns on investments having corresponding risks. That return, moreover, should be sufficient to assure confidence in the financial integrity of the enterprise so as to maintain its credit and to attract capital.62 In short, courts consider “whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection for the relevant public interests.”63 A rate whose end result effects a reasonable balancing of insurer and investor interests relative to ratepayer or broader public interests “cannot properly be attacked as COnfiSCatO-py ” 64 In reviewing whether the Commissioner’s order effected a reasonable balancing of these interests, we give deference under the substantial-evidence standard to his findings regarding “initial questions of historical fact,” but review de novo his “second-order analysis [of] applying] th[e] historical facts to the legal standards.”65 *105Surplus note We will begin with the single most pivotal question in this rate appeal, and the one on which State Farm Lloyds places the greatest emphasis — the validity of the Commissioner’s decision not to include the 9% “surplus note” provision in the ordered rate. State Farm Lloyds challenges this determination principally through its first two points of error. Interest In its first point of error, State Farm Lloyds insists that without the surplus-note provision, the ordered rate, in both the initial and subsequent periods, is confiscatory and unconstitutional because it fails to account for the interest it owes on the surplus note. This is so, State Farm Lloyds reasons, because interest on the surplus note is properly considered an “operating expense” distinct from the costs of capital compensated through rate of return on capital and underwriting profit, and must be compensated as such in the rate.66 To support this premise, State Farm Lloyds points to TDI’s rule governing surplus notes, which requires accounting recognition of interest payments as “liabilities” when they come due67 and accounting principles, generally incorporated into TDI’s rules,68 requiring that interest “shall be expensed in the statements of operation when approved for payment.”69 State Farm Lloyds also emphasizes Texas Supreme Court decisions involving utility ratemaking that, in its view, approve or contemplate recovery of interest or other “carrying costs” on debt as specific components of the rate separate from a return on capital.70 In response, TDI and OPIC continue to *106maintain that, as the Commissioner found, State Farm Lloyds is seeking to double-recover a cost of capital for which it is already being compensated in the rate. To address State Farm Lloyds’s assertions, we begin by noting that the Hope court characterized “service on the debt” as a component of the “the capital costs of the business,” as opposed to “operating expenses,”71 and that interest on debt is commonly accounted for through the rate of return on capital in other ratemaking contexts.72 The Commissioner heard evidence that the same is true in insurance ratemaking — interest on an insurer’s debt is considered to be a cost of capital that is properly and customarily compensated through the rate of return secured through underwriting profit, not as a type of operating expense. We cannot conclude the Commissioner’s decision to address State Farm Lloyds’s surplus-note interest the same way is without reasonable support in the evidence. But the more critical feature of Hope, as it relates to State Farm Lloyds’s ultimate constitutional complaint, is the Supreme Court’s emphasis on the “total effect of the rate order,” not the “theory” or “method employed,” in determining a rate’s constitutionality.73 Under Hope, whether the ordered rate addressed interest on the surplus note as an “operating expense,” a “cost of capital” addressed through underwriting profit and rate of return, or through some other means, is singularly of little constitutional significance. What matters is whether the rate, in its ultimate effect, sufficiently accounted for the cost in some fashion. To the extent State Farm Lloyds contends that the ordered rate fails altogether to account for interest -on the surplus note, it overlooks that the reasonable cost of capital contemplated by the insurer’s own underwriting-profit model, later utilized by the Commissioner, would include the cost of the surplus-note proceeds. That is, the ordered rate provided State Farm Lloyds a return on its capital, including the surplus-note proceeds, calculated so as to approximate the returns the funds would have garnered in alternative investments of similar risk. TDI’s witnesses testified that these earnings are the cost or value of State Farm Lloyds’s capital in economic effect, and for ratemaking purposes, inasmuch as they represent the rate of return that must be paid to investors to risk their funds in the enterprise. While the Commissioner did not attempt to distinguish or specifically account for the actual amount of State Farm Lloyds’s interest obligations under the surplus note in determining the rate of return on the proceeds74 — in effect, he “costed” all of *107State Farm Lloyds’s capital as if it were equity75 — TDI presented expert testimony that this was the norm in insurance rate-making. Further support for the Commissioner’s approach is found in the evidence that the surplus note, while a debt instrument, also had attributes of equity — the debt obligations are subordinated so as to ensure that the proceeds can be used to supply minimum levels of surplus first. Yet even if there were any error in failing to differentiate surplus-note interest from its other costs of capital, State Farm Lloyds has not demonstrated any harm from the Commissioner’s approach. To the contrary, according to projections prepared by one of State Farm Lloyds’s own experts, Dr. David Appel, the 5% underwriting profit originally advocated by the insurer and TDI would generate earnings sufficient to cover the same amortized costs of repaying the surplus note that the insurer had built into its surplus-note provision — including both interest and principal — -plus grow additional surplus at a rate of at least 4% annually through 2008. Ap-pel also prepared a similar set of projections that assumed a 7.8% underwriting profit, which generated surplus growth of at least 9% annually above the amortized costs of repaying the surplus note through the same period. The rate ultimately ordered by the Commissioner, as noted, provided State Farm Lloyds an even higher underwriting profit in both the initial and subsequent periods. This evidence reasonably supports the Commissioner’s findings that the ordered rate fully accounts for interest on the surplus note (and, indeed, also principal) through the return on capital secured through underwriting profit. It would follow that allowing a separate provision to recover interest would, as the Commissioner found, amount to a double-recovery and render the rate excessive. In light of these findings and their evidentiary support, we cannot conclude that the Commissioner’s refusal to separately provide for recovery of surplus-note interest renders the ordered rate unreasonable or confiscatory. Accordingly, we overrule State Farm Lloyds’s first point of error. Recapitalization In its second point of error, State Farm Lloyds asserts that the ordered rate, in both the initial and subsequent periods, “failed to adequately and measurably provide for [its] principal payments on the surplus note.” By this, significantly, State Farm Lloyds does not mean that the ordered rate failed to provide it sufficient earnings to repay principal owed on the surplus note — again, Appel’s projections tended to show that the rate would cover the annualized amortized principal and interest on the note even with a lower underwriting profit than the Commissioner ultimately ordered. Instead, the insurer’s contention is that the rate must also enable it to build additional surplus at a rate that would increase its total surplus (net of amounts reserved for surplus-note payments) to a 1:1 premium-to-surplus ratio within nine years. Unless the rate enables it to do both, State Farm Lloyds insists, it would be forced to operate with “depleted” levels of surplus for an inordinately prolonged period of time, and run the risk in the meantime that further catastrophes would derail its repayment of the surplus note. Such developments, it adds,- would undermine confidence in its financial integrity and prevent it from attracting future investment to an unreasonable and unconstitutional degree.76 *108This was the real point of Appel’s projections, as State Farm Lloyds emphasizes. According to Appel’s calculations, a rate with a 5% underwriting profit and no surplus-note provision would require 21 years (2024) to grow State Farm Lloyds’s surplus, net of surplus-note payments, to reach a 1:1 premium-to-surplus ratio. With a 7.8% underwriting profit, according to Appel, such “recapitalization” would take 17 years (2020). The Commissioner was unpersuaded that State Farm Lloyds was entitled to recover any costs related to the surplus note beyond the aforementioned return on its capital secured through underwriting profit. Assuming the rate provided State Farm Lloyds returns on its capital commensurate with those to be earned in alternative investments of similar risk, as the Commissioner observed in his order, there would be incentives for investors to provide capital to State Farm Lloyds going forward.77 The Commissioner was similarly skeptical that there was any immediate financial compulsion to provide State Farm Lloyds anything more. Although aeknowl-edging that having a 1:1 premium-to-surplus ratio would be “ideal,”78 the Commissioner cited Appel’s projections indicating that the ordered rate (and even a rate providing a lower underwriting profit) would enable the insurer to gradually rebuild its surplus to that 1:1 level while amortizing the surplus note, albeit at a slower pace than would be possible with the surplus-note provision. In light of this evidence, the upshot of State Farm Lloyds’s arguments, as the Commissioner saw it, was that he should “establish a rate so [the] insurer can expect to grow its surplus to a pre-determined level over a specified period of time over and above its cost of capital.” He rejected that notion, emphasizing the Supreme Court’s holdings that “[a]ll that is protected against, in a constitutional sense, is that the rates ... be higher than a confiscatory level.”79 He similarly viewed the surplus-note provision as an unjustified attempt by State Farm Lloyds not only to recoup its legitimate costs of providing insurance to its then-current policyholders, but also to effectively shift its past losses to them as well. *109On the other hand, the Commissioner was given some pause by evidence that State Farm Lloyds’s premium-to-surplus ratio in 2003 was relatively low, noting a concession by TDI’s expert that the insurer’s premium-to-surplus ratio was only 2.35:1 around the time of the original hearing. Until State Farm Lloyds regained more solid financial footing, the Commissioner acknowledged, further unanticipated catastrophes would have had potentially “severe” repercussions for the insurer’s ability to fund repayment of the surplus note, obtain additional capital, and ultimately maintain financial viability. But the Commissioner remained unconvinced that he should approve the surplus-note provision for these reasons, a provision that, in his view, purported to provide State Farm Lloyds extraordinary returns above its cost of capital. Rather, the Commissioner viewed these considerations as going to the cost of capital itself, more specifically risk — the potential that State Farm Lloyds’s actual costs would vary from the expected costs anticipated in its rate — that is factored into determination of the reasonable return on its capital and underwriting profit. Additionally, the Commissioner determined that the parties themselves had not sufficiently accounted for these and other considerations bearing on risk when determining cost of capital and underwriting profit. To determine the appropriate rate, then, the Commissioner recalculated underwriting profit with greater weighting of risk and determined that State Farm Lloyds should receive a substantially higher underwriting profit of 8.5% of premium during the initial period and 8.0% in the subsequent period. Thus, the net effect of these rulings was to provide State Farm Lloyds an additional 3.0% to 3.5% of premium on top of the 5% it had sought as underwriting profit during the initial period, but not the full 9% of premium it had sought in the form of the surplus-note provision.. As State Farm Lloyds recognizes, our ultimate consideration in addressing its constitutional challenge to the ordered rate is whether the “end result” represents a reasonable balancing between the interests of the insurer and its investors (chiefly State Farm Mutual) on one hand, and those of its policyholders and the broader public interest on the other. With respect to State Farm Lloyds’s second issue, that inquiry focuses on whether the Commissioner’s refusal to permit State Farm Lloyds recovery of the full 9% of premium it sought through the surplus-note provision caused the ordered rate to unreasonably disfavor its financial and investor interests relative to those of ratepayers and the public. On the company and investor side of the equation, a rate that provided State Farm Lloyds returns reflecting the opportunity cost of its capital would, as the Commissioner observed, tend to attract funds from economically rational investors, at least in theory. Moreover, as TDI and OPIC emphasize on appeal, the Commissioner heard evidence that if the expense and earnings estimates anticipated in the rate held true, State Farm Lloyds would be able to cover the annualized amortized costs of the surplus note and gradually grow its surplus. And while the Commissioner acknowledged the potentially troubling consequences if actual events did not turn out that way, especially during the initial term, he took account of this risk through a substantial increase in the underwriting profit provided in the rate. On the other side of the equation, furthermore, were concerns that a higher rate would effectively force State Farm Lloyds’s then-current policyholders to bear the costs of the company’s past losses. The Supreme Court has long held that a “company may not insist as a matter of *110constitutional right that past losses may be made up by rates to be applied in the present and future.”80 On the other hand, State Farm Lloyds insists that the surplus-note provision would actually benefit, not harm, its ratepayers, and should accordingly be weighed favorably in the constitutional balance. Because accelerated rebuilding of its surplus would tend to reduce the risk of future financial perils, State Farm Lloyds urges, its current ratepayers should appropriately bear these along with other costs of providing them insurance. More broadly, State Farm Lloyds insists that if its rate fails to include the surplus-note provision, it and other insurers will be discouraged from seeking this sort of extraordinary financing to survive future perilous times, opting instead to simply withdraw from the market,81 and that future investment to aid financially strapped insurers in such circumstances will likewise be chilled. These outcomes, State Farm Lloyds argues, would in turn not only harm Texas consumers (especially if a large homeowners insurer like itself were to leave the market), but thwart the regulated private-market approach to homeowners insurance that the Legislature has heretofore generally preferred over more government-intensive policy alternatives. We echo the Commissioner’s assessment that these are “vexing” and “difficult” questions of insurance regulation, economic theory, and public policy. But resolution of such issues within our governmental framework is vested first in the Commissioner or the Legislature, and it is only at the margins of the other Branches’ lawful powers that the Judiciary properly has a say. We are unpersuaded that the Commissioner, in refusing to afford State Farm Lloyds recovery of the full 9% of premium it sought through the surplus-note provision, has effected such an unreasonable balancing among the interests of State Farm Lloyds, its investors, ratepayers, and the public as to violate the constitutional norms.82 Consequently, we cannot conclude this decision renders the rate confiscatory. Accordingly, we overrule State Farm Lloyd’s second point of error. Contingencies In its third point of error, State Farm Lloyds challenges the Commissioner’s refusal to include the 2% contingencies provision in the rates for the initial and subsequent periods. Alternatively, it urges that to the extent the Commissioner effectively included a contingencies provision in the increased underwriting profit he awarded, he deprived it of a reasonable *111rate of return on its capital because contingencies are in the nature of anticipated expenses rather than anticipated profit. The predicate for both arguments is that the Commissioner’s failure to find the required systematic variation between State Farm Lloyds’s projected and actual expenses was arbitrary and not supported by substantial evidence. This is so, according to the insurer, because it presented “un-contradicted” and “unimpeached” evidence establishing the required systematic shortfalls. Even accepting State Farm Lloyds’s view of the record, the Commissioner was not obligated to accept or credit the insurer’s evidence regarding the contingencies provision as long as he provided an explanation or findings that would establish a reasonable basis for his doing so.83 And, although State Farm Lloyds asserts otherwise, the Commissioner made underlying findings demonstrating a reasonable basis for his rejection of the carrier’s evidence of systemic variations. Among other facts, the Commissioner pointed to a significant intervening change in the ratemaking process — in 2002, he had approved the use of policy forms that unequivocally excluded most mold losses from basic coverage, thereby addressing a key driver of the adverse court decisions that State Farm Lloyds had cited as proof of a systemic pattern of unforeseen losses. In the face of such facts, State Farm Lloyds’s argument goes ultimately to the weight the Commissioner ascribed to its evidence, and we cannot conclude he acted unreasonably or exceeded his discretion in that regard.84 We overrule State Farm Lloyds’s third point of error. Underwriting profit We next consider State Farm Lloyds’s challenge to the Commissioner’s determination of underwriting profit in the initial period, a component of its fifth point of error. In addition to being an independent ground for reversal, our preceding analysis of State Farm Lloyds’s arguments regarding the surplus note rested, in part, on the assumption that the underwriting-profit provision in the ordered rate had sufficiently secured it a rate of return consistent with its cost of capital. State Farm Lloyds argues that the Commissioner’s determination of underwriting profit is not supported by substantial evidence because “he used a method that no witness proposed and no record evidence supports as an acceptable method for determining the profit provision.” It thus invokes the principle that substantial-evidence review, however deferential its factual aspects may be, still requires that an agency decision find ultimate support in evidence or facts officially noticed, and mere “agency expertise cannot be a substitute for proof.”85 It follows from this *112principle, as State Farm Lloyds emphasizes, that an agency’s methodology for calculating a rate or a rate component must find ultimate support in the evidence, facts judicially noticed, or an agency rule.86 But this does not necessarily mean that there must be explicit testimony or evidence of a particular methodology or calculation — in a given case, for example, the evidence might well enable the agency to reasonably infer an appropriate method that combines elements presented by different witnesses but no single witness.87 Similarly, even where no single witness testifies that the calculation should yield a specific figure, competing testimony may present a range of reasonable options from which the agency has discretion to choose.88 The primary focus of State Farm Lloyds’s argument is that the Commissioner took account of the surplus-note obligation and the possibility of contingencies as factors probative of risk that should bear upon underwriting profit rather than viewing them as justifications for the specific rate provisions it had advocated. In State Farm Lloyds’s view, the evidence afforded the Commissioner only one alternative for addressing these issues — adopt the solution advocated by its experts and include the 9% surplus-note provision and 2% contingencies provision in the rate. State Farm Lloyds overlooks that TDI and OPIC’s experts advocated an alternative method for addressing the surplus-note obligation and the possibility of contingencies, albeit not the one the insurer preferred — regard any such costs as costs of capital and relegate State Farm Lloyds to recovering these costs through the underwriting-profit provision of the rate. As previously indicated, there was ample evidence to support the Commissioner’s rejection of State Farm Lloyds’s proposed *113alternative. In this respect, State Farm Lloyds’s complaint about underwriting profit is merely a corollary to its other arguments challenging the Commissioner’s refusal to include the surplus-note and contingencies provisions in the rate. State Farm Lloyds is correct, however, that no witness explicitly advocated taking account of the surplus-note obligation and the possibility of contingency as additional elements of risk to be factored into underwriting profit above the risk that would already be reflected in the 5% underwriting profit State Farm Lloyds had advocated. But to the extent State Farm Lloyds is arguing that the Commissioner should have refrained from making his upward adjustments to underwriting profit after having rejected the two rate provisions, any error would only have been to the insurer’s benefit.89 Regardless, the evidence reasonably supported the Commissioner’s decision to make an upward adjustment to underwriting profit. A key underpinning of TDI and OPIC’s opposition to the surplus-note provision (and, ultimately, of the Commissioner’s rationale in rejecting it) was that the rate’s underwriting-profit provision already compensated State Farm Lloyds for its cost of capital. This reasoning logically presumes a reasonably accurate calculation of State Farm Lloyds’s cost of capital and underwriting profit. A key determinant of the cost of capital (and, in turn, underwriting profit), everyone agrees, is the level of risk the insurer faces (i.e., the potential for future random deviations between the estimated costs accounted for in the insurer’s rate and what its actual costs turn out to be). Hence, if the Commissioner found the existence of additional risk that had not been factored into the determination of underwriting profit and was material to it, it would follow that an adjustment to that provision would be necessary to ensure that the insurer was reasonably compensated for its cost of capital. The Commissioner found such an adjustment to be warranted here, and this finding is reasonably supported by at least two evidentiary bases. First, and most obviously, State Farm Lloyds itself had viewed the surplus-note obligation and contingencies issue as justifying separate rate provisions and presumably would not have factored them into the risk bearing on its underwriting-profit calculation. Second, the Commissioner heard evidence to the effect that the 5% underwriting-profit figure advocated by State Farm Lloyds was to some extent a standard or industry figure commonly used when fashioning property-insurance rates. This case was different, the Commissioner reasoned, finding that “[t]he element of risk associated with repaying a surplus note, plus interest, would not be present in a typical insurer, which has no surplus notes, and would not be prominent in an aggregation of all insurers, as most insurers do not have surplus notes.” State Farm Lloyds has not challenged that finding. In sum, while not advocated specifically by any one witness, the Commissioner’s decision to consider the surplus-note obligation and possibility of contingencies as indicia of additional risk and accordingly revisit underwriting profit is nonetheless grounded in reasonable inferences from the evidence the parties did present.90 State Farm Lloyds further contends that the specific methodology through which the Commissioner adjusted underwriting profit lacks support by substantial evidence. To the extent State Farm *114Lloyds is urging that the Commissioner should have adjusted underwriting profit to some amount higher than it did, we will' proceed to address its contention.91 To determine the necessary adjustments to underwriting profit, the Commissioner utilized the same basic formula that State Farm Lloyds had itself employed to calculate underwriting profit, a method that the evidence further indicates is widely accepted among actuaries.92 Under this method, simply described, State Farm Lloyds solved for the amount of underwriting profit the carrier would have to obtain to yield, when combined with estimated investment income and other income, and after taxes, what would be a reasonable average rate of return on a hypothetical risk-adjusted level of capital.93 According to State Farm Lloyds’s witnesses, the hypothetical level of capital — customarily expressed in terms of a premium-to-surplus ratio, with a lower ratio signifying higher risk and vice versa — represents a level at which the risk associated with the amount of capital allocated to each exposure unit is of a targeted average intensity. In determining its underwriting profit, State Farm Lloyds had chosen a hypothetical 1:1 premium-to-surplus ratio. With that input, State Farm Lloyds had determined that 5% underwriting profit, when combined with its estimated investment and other income, and after taxes, would yield an average rate of return on surplus of 12.4%, which it had adjusted to an estimated return on equity calculated under GAAP of just under 10%. Although OPIC advocated a lower underwriting profit of 2.5%, TDI staff ultimately concurred with State Farm Lloyds that a 5% underwriting profit was appropriate and that the rate of return it had achieved was reasonable. The Commissioner found that “[i]t is reasonable to use SFL’s profit model in deriving an underwriting profit provision for use in this case,” with “further consideration of the premium to surplus ratio used in the profit model” in light of various risk factors he had identified. The Commissioner then made the following specific findings: 136. SFL’s theoretical [1:1] premium to surplus ratio was described by SFL as being “minimally prudent” [for purposes of determining underwriting profit]. 137. One SFL witness testified that analyses of premium to surplus ratios for professional reinsurers and Bermuda property reinsurers, combined with “the fact that SFL is not charging anything in the rate for catastrophe reinsurance” could justify a premium to surplus ratio as low as 0.5 to 1.0. Elsewhere in his testimony, the same witness acknowledges that SFL has made some provision for catastrophe reinsurance, but that “since many exposures are not covered by the catastrophic reinsurance coverage and since in Texas, many catastrophes are too small to exceed the reinsurance deductible (or ‘attachment point’), the coverage is incomplete.” 138. Other evidence in the record demonstrates that SFL is making significant provision for catastrophe reinsurance. 139. The fact that SFL is making significant provision for catastrophe reinsurance greatly diminishes *115SFL’s assertion that a premium to surplus ratio as low as 0.5:1.0 could be justified; but the fact that some catastrophe exposure is not fully covered by reinsurance offers some support for using a ■ premium to surplus ratio of modestly less than 1.0:1.0. 140. The justification for using a premium to surplus ratio of less than 1.0:1.0 is strengthened significantly when other elements of risk are considered. 141. The fact that SFL is a single-state insurer deriving almost its entire premium from a single line of insurance which includes catastrophe coverage in a catastrophe-prone state was brought forth in the record as an indication of risk. 142. As noted earlier ... the existence of a surplus note, and the obligation to repay such note by a date certain, along with related interest, is an element of risk inherent in SFL’s writing of homeowners insurance in 2003. 143. The element of risk associated with repaying a surplus note, plus interest, would not be present in a typical insurer, which has no surplus notes, and would not be prominent in an aggregation of all insurers, as most insurers do not have surplus notes. 144. SFL’s surplus note, and the obligation to repay it, along with related interest, suggests that an otherwise reasonable premium to surplus ratio, or what might be construed as a “minimally prudent” premium to surplus ratio, may not be reasonable to determine an appropriate underwriting profit provision with respect to SFL’s writing of homeowners insurance in 2003. 145. SFL’s surplus note, and the obligation to repay it, along with related interest, by December 31, 2016, suggests that the use of a lower premium to surplus ratio to determine the underwriting profit provision may be, in consideration of SFL’s writing of homeowner’s insurance in 2003, more reasonable than the 1.0:1.0 ratio used in SFL’s analysis. 146. As noted earlier [in regard to the contingencies provision], the conclusion that there may be a systematic variation between expected costs and actual costs implies risk. 147. To the extent such risk is not contemplated in the l.Orl.O premium to surplus ratio used in the SFL profit model, there is a basis for using a premium to surplus ratio lower than 1.0:1.0. With that prologue, the Commissioner found that: 148. ... (1) SFL is a single-state writer, writing almost exclusively homeowners insurance, which includes catastrophic coverage, in a catastrophe-prone state; (2) SFL faces an element of risk associated with the obligation to repay the $1.05 billion surplus note, along with related interest by a date certain; and (3) there may be systemic variation between expected costs and actual costs which has not been addressed in the rate-making process. For these reasons, it is reasonable to accord to SFL’s writing of homeowners insurance in 2003 [emphasis in the original] a greater measure of risk than is contemplated in the 1.0:1.0 *116premium to surplus ratio contained in SFL’s profit model. As for what that specific ratio should be, the Commissioner further found that a “reasonable premium to surplus ratio for use in this proceeding would be somewhere below 1.0:1.0, but well above 0.5:1.0.” This range of hypothetical premiums-to-surplus ratios, the Commissioner observed, translated into “profit provisions ... in the range of 7.0% to 10.0%.” The Commissioner then selected 8.5% as “a reasonable profit ... provision, including a provision for hurricane risk, for SFL in conjunction with its writing of homeowners insurance in Texas in 2003.” Although State Farm Lloyds is correct that no witness explicitly testified in support of the upward adjustment to underwriting profit the Commissioner ultimately made, this was hardly a case where the Commissioner “embarked on [his] own method that goes beyond anything in the record.”94 To the contrary, the Commissioner utilized a formula that had been supplied by the insurer’s own witnesses and adjusted but a single input — the appropriate hypothetical amount of risk-adjusted capital, expressed as a premium-to-surplus ratio — which all agree is the means by which risk is accounted for in that formula. While State Farm Lloyds had assumed a 1:1 premium-to-surplus ratio, the Commissioner heard evidence that a ratio as low as 0.5:1 could be appropriate depending on the extent to which the insurer was able to shift its risks of catastrophe losses through reinsurance. The Commissioner chose a ratio (and a corresponding underwriting profit) in the middle of this range, reasoning that while a 0.5:1 ratio was inappropriate in light of State Farm Lloyds’s provision for catastrophe reinsurance, there remained risks of losses that had not been fully addressed by that reinsurance, along with the additional risks presented by the surplus note and possible contingency.95 While State Farm Lloyds would insist on greater exactitude in correlating specific adjustments to the premium-to-surplus ratio to particular risk factors, we cannot conclude that the Commissioner “selected a figure that is outside the range of the applicable evidence, or that is otherwise unsupported by any evidence.”96 Accordingly, we overrule State Farm Lloyds’s challenge to the 8.5% underwriting profit the Commissioner awarded in the ordered rate for the initial period. Subsequent period The foregoing holdings resolve each of State Farm Lloyds’s challenges to the ordered rate for the initial period. We now turn to State Farm Lloyds’s arguments regarding the rate the Commissioner determined for the “subsequent period” between September 1, 2004 and July 31, 2008, which are further components of its fifth point of error. As a threshold matter, State Farm Lloyds questions (although does not extensively brief or argue) whether the Commissioner had statutory authority to reduce its implemented rate with respect to *117any period after August 31, 2004, the last day former art. 5.26-1 remained in effect. While State Farm Lloyds is correct that the legality of its implemented rate, as applicable to periods after August 31, 2004, is necessarily governed by statutes other than former art. 5.26-1, it overlooks that each of the successor statutory regimes also empowered the Commissioner to order refunds based on a final determination that State Farm Lloyds’s implemented rate had been excessive. Under former art. 5.142, as previously noted, the Legislature provided for refunds with interest in a manner identical to former art. 5.142 in the event the Commissioner’s rate determination was upheld on appeal.97 Similarly, under the file-and-use regime, former art. 5.144 of the Insurance Code (now codified as chapter 2254 of that Code)98 has authorized the Commissioner to order refunds of any filed rate he determines to be excessive.99 State Farm Lloyds suggests that the latter provision is inapplicable here because it contemplates a right to a rate hearing before the State Office of Administrative Hearings, as opposed to the Commissioner alone,100 the procedure followed here. This assertion is in the nature of an unpreserved complaint of procedural error rather than a basis for holding former art. 5.144 inapplicable in the first instance. In short, the Commissioner has had statutory authority to determine whether and the extent to which State Farm Lloyds had charged its policyholders excessive rates, and to order refunds accordingly, not only with respect to the initial period in which former art. 5.26-1 was in effect, but also in the subsequent period that followed. Assuming the Commissioner’s statutory authority to determine the appropriate rate for the subsequent period, State Farm Lloyds’s core complaint is that the Commissioner, in setting a rate that was flat or uniform throughout the entire subsequent period, failed to take account of significant intervening increases in its costs of providing insurance. State Farm Lloyds points to evidence that, beginning in 2006, its reinsurance costs had significantly increased as world markets responded to Hurricanes Katrina and Rita in late 2005 and eight other hurricanes that had hit Florida in 2004 and 2005. In fact, one of TDI’s experts, Dr. Mark Crawshaw, maintained during the hearing that State Farm Lloyds’s initial rate had ceased to be excessive from July 2006 onward and thereafter became inadequate. Based in part on these cost increases, State Farm Lloyds would ultimately obtain Commissioner approval for the rate increase that took effect in mid-2008. State Farm Lloyds attacks the ordered rate through two primary legal theories. First, similar to its arguments regarding underwriting profit in the initial period, it asserts that the Commissioner’s formulation of a flat rate for the entire subsequent period was founded on a methodology that no witness had proposed and no evidence *118supported. Second, State Farm Lloyds insists that the Commissioner acted arbitrarily and capriciously in imposing a flat rate that excluded consideration of its significant cost increases during the subsequent term. Relatedly, it contrasts the Commissioner’s failure or refusal to account for these cost increases with his reduction of underwriting profit for the entire subsequent period — i.e., beginning September 2004 — based on surplus-loan repayments that did not occur until 2006.101 Such “arbitrary hindsight,” State Farm Lloyds urges, represented a selective departure from the prospective rate-making on which the Commissioner had otherwise insisted, forcing it to absorb rate reductions based on actual post-2003 events while simultaneously depriving it of the benefit of actual post-2003 events that would have increased its rates. We are compelled to agree that the Commissioner’s reduction of underwriting profit based on post-2003 events, in the context of imposing a single flat rate for the entire subsequent period, was arbitrary and capricious. This becomes apparent when considering the methodology the Commissioner used to set the rate. Having found that the evidence “suggests the level of excessiveness in SFL’s rates declined over time,” the Commissioner considered two alternative methodologies for accounting for the changes that had been proposed by State Farm Lloyds’s actuary, Rob Kelley. Both methodologies were prospective in nature, although their points of reference differed. In the first, which the Commissioner would term the “Trend Projection Method,” Kelley had utilized the data known and knowable as of September 2003 (i.e., the same information from which the initial-period rate had been derived) and extended projections originally used to develop certain cost components of the initial-period rate. Applying these projections to State Farm Lloyds’s rate indication for the initial period, Kelley devised rates for each of three successive annual periods beginning on September 1, 2004, 2005, and 2006, and a final period between September 1, 2007, and the end of the subsequent period, July 31, 2008. In Kelley’s second method, termed the “Augmented Data Method,” he determined these annual rates based on data that would have been available at each interval. The Commissioner found that the Trend Projection Method — the one relying solely on September 2003 information — “is most suitable for determining a rate for SFL for the subsequent period.” Taking the ordered rate for the initial period as his starting point, the Commissioner, similar to Kelley, “trended” increases in State Farm Lloyds’s estimated earned premiums and four cost components in the rate — (1) non-catastrophe loss and loss adjustment expense (LAE); (2) hurricane catastrophe loss and LAE; (3) non-hurricane catastrophe loss and LAE; and (4) fixed expenses — and made specific findings as to the annual percentage increases that should be applied to each.102 However, rather than determining a rate for each of the four annual segments within the subsequent period, as had Kelley, the Commissioner determined a single rate for the entire subsequent period by trending the aforementioned rate components up to February 15, 2007. *119The Commissioner offered two justifications for this departure from Kelley’s approach. First, he explained that February 15, 2007, represented the “average date of loss” under the State Farm Lloyds policies that would have been sold during the subsequent period, represented by the midpoint between the first day such a policy could have been effective (September 1, 2004) and the date the last policy could have expired (July 31, 2009).103 According to the Commissioner, it was “common actuarial practice” to trend cost projections underlying a rate to the average date of loss under the policy, and he pointed out all parties had accordingly trended their projections underlying the initial period rate until September 1, 2004, the midpoint between the first day the initial-period policies could have been effective and the last day they could have expired. On the other hand, the Commissioner also acknowledged that “formulating a homeowner’s rate for such a long duration,” as he was doing in the subsequent period, “is simply unheard of.” The Commissioner’s second justification was that “there is no substantive difference,” in terms of the amounts State Farm Lloyds would ultimately owe as refunds, between his trending of the rate components for the entire subsequent period as a whole and Kelley’s delineation of annual segments. “This is especially true,” the Commissioner added, in light of evidence that State Farm Lloyds “has ‘extremely high’ renewal rates.” In essence, the Commissioner reasoned that while the ex-cessiveness of State Farm Lloyds’s initial rate would differ at any given time within the subsequent period, the differences would average out at 3.4% over the. entire period, at least when viewed from the perspective of September 2003 looking forward. While urging that no evidence supports the Commissioner’s departure from Kelley’s year-by-year approach, State Farm Lloyds does not appear to dispute the Commissioner’s math. In sum, the Commissioner set a flat rate for the entire subsequent period founded on cost projections made from the perspective of September 2003, approximately a year before the period to which the rate applied began. This model foreclosed consideration of actual cost increases that might occur during the subsequent period. From that standpoint, State Farm Lloyds’s evidence of significant increases in reinsurance costs beginning in 2006 would have had no bearing on the appropriate rate for the subsequent period. For that matter, these subsequent developments would have had no bearing upon rates determined in annual segments under Kelley’s original Trend Projection Method, either, because that method likewise relied on September 2003 data. But having deprived State Farm Lloyds of the benefit of any intervening developments that could favorably impact its indicated rate, the Commissioner also forced it to bear the unfavorable consequences to underwriting profit that he derived from the 2006 surplus-note repayments. TDI and OPIC insist that both the Commissioner’s method in setting a single flat rate for the entire subsequent period and his downward adjustment of underwriting profit were supported by substantial evidence, and that it likewise supported the “amalgam” of rating methodologies the Commissioner devised.104 *120Even if so, the Commissioner’s actions are independently subject to reversal if arbitrary and capricious.105 An agency’s decision may be held arbitrary and capricious if, among other defects, “it is based on legally irrelevant factors or if legally relevant factors were not considered or if the agency reached an unreasonable result.”106 In the context of the single rate he established for the entire subsequent period, the Commissioner’s reduction of underwriting profit was based on a factor that he had acknowledged to be legally irrelevant and inappropriate — the use of 2006 and 2007 data to determine a rate that applied prior to that time. In effect, the Commissioner engaged in prohibited retroactive ratemaking with respect to those earlier periods. He also did so selectively and unreasonably, in essence cherry-picking post-September 2003 data where it served to reduce State Farm Lloyds’s indicated rate while excluding consideration of post-September 2003 data that could have increased it, with no evident justification for the differential treatment. Even while recognizing the constitutional leeway afforded to an agency’s choice of ratemaking methods, the Supreme Court has cautioned nonetheless that a “decision to arbitrarily switch back and forth between methodologies in a way which requires investors to bear the risk of bad investments at some times while denying them the benefit of good investments at others would raise serious constitutional questions.” 107 The Commissioner’s determination of the rate for the subsequent period was arbitrary and capricious, and must be reversed.108 To that extent, we sustain State Farm Lloyds’s fifth point of error. Interest Having determined that State Farm Lloyds’s initial rate was excessive during both the initial and subsequent periods, the Commissioner ordered refunds of the “overcharged premiums,” plus interest, citing the refund provisions of both former art. 5.26-1 and chapter 2254 (the former art. 5.144) without distinguishing between overcharges for the initial versus subsequent periods or, with respect to the latter, those occurring while former art. 5.142 was in effect (i.e., before December 1, 2004) as opposed to thereafter. The Commissioner similarly conflated the statutory provisions in awarding interest on the refunds he held to be due, determining that interest on all refunds should be awarded in accordance with former art. 5.26-1 for each year during both the initial and subsequent periods, but only for the interest that accrued up • to the date of his order. Interest accruing from the date of the Commissioner’s order forward, he reasoned, would accrue under chapter 2254, regardless of when the overcharge occurred. The statutory distinction is not merely formal or technical. Under former art. 5.26-1, the Legislature had specified that “[t]he interest rate is the prime rate plus one percent as published in the Wall Street Journal on the first day of each calendar year that is not a Saturday, Sun*121day, or legal holiday.”109 An identical interest provision appeared in former art. 5.142.110 In contrast, beginning in 2005, chapter 2254 (or its predecessor, former art. 5.144) have specified that an “interest penalty” accrues on refund amounts at a rate that is the lesser of 18 percent or the sum of six percent and the prime rate for the calendar year in which the Commissioner’s order finding the rate excessive is issued.111 Apart from State Farm Lloyds’s complaints regarding the propriety of the refunds themselves and the Commissioner’s underlying rate determinations, none of the parties have challenged the Commissioner’s award of interest on all refunds at the rate of one percent over the prime rate for each year at issue, consistent with the rate prescribed by former art. 5.26-1, up to the date of his order (a/k/a “pre-order” interest). However, in its sixth issue, State Farm Lloyds urges that the Commissioner reversibly erred in awarding post-order interest accruing on all refunds at the higher rate specified in chapter 2254. In State Farm Lloyds’s view, interest on any refunds, both before and after the date of the Commissioner’s order, is governed exclusively by former art. 5.26-1 regardless of when the overcharge occurred. With respect to the overcharges the Commissioner found to have occurred during the initial period, we agree — as previously explained, former art. 5.26-1, which continues in effect for these purposes, governs the validity of State Farm Lloyds’s implemented rate during the initial period, its policyholders’ right to refunds of “overcharged premium,” and interest on those amounts. To this extent, we sustain State Farm Lloyds’s sixth issue. As for interest on any refunds for overcharges during the subsequent period, our definitive resolution of that issue must await the proceedings on remand to determine the appropriate underlying rate or rates during that time and whether or for what times any refunds are owed." We note, however, that we have held above that the Commissioner’s authority to order refunds during the subsequent period is governed by former art. 5.142 with respect to any overcharges between September 1, 2004 and November 30, 2004, and by former art. 5.144 and chapter 2254 for periods *122thereafter. On the other hand, appellees have not preserved any complaint in this appeal regarding the propriety of the Commissioner’s awarding of pre-order interest on all refunds held to be due in accordance with former art. 5.26-1. We likewise observe that the Legislature did not authorize interest awards under the former art. 5.144, at the higher prime-plus- ■ six-percent rate or otherwise, until 2005.112 On remand, if the Commissioner again finds that refunds are owing for the subsequent period or a portion of it, the parties will have the opportunity to address whether or how these observations bear upon the appropriate interest rate or rates. Refunds In its sole remaining point of error, its fourth, State Farm Lloyds argues that the refunds with interest ordered by the Commissioner were confiscatory in light of their impact on the insurer’s financial condition at the time of the order. Because we have reversed and remanded the Commissioner’s determination of an appropriate rate for the subsequent period, any constitutional challenge based on the financial impact of any refunds and interest ultimately awarded by the Commissioner must await those further proceedings. CONCLUSION We affirm the portion of the district court’s judgment affirming the Commissioner’s order determining a rate for the “initial period” and that State Farm Lloyds’s implemented rate was excessive by 6.2% during that time frame. However, we reverse the portion of the judgment affirming the Commissioner’s order setting a rate for the subsequent period and holding that State Farm Lloyds’s implemented rate was 3.4% excessive then. We remand the question of the appropriate rate and reductions for the “subsequent period,” as well as the ultimate determination of refunds and interest awards, to the Commissioner for further proceedings consistent with this opinion. We further hold that interest awarded on refunds for the initial period will be governed exclusively by the rate specified in former art. 5.26-1, both before and after the date of the Commissioner’s order. Justice Henson not participating . 255 S.W.3d 786 (Tex.App.-Austin 2008, no pet.). . Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 4.01, 2003 Tex. Gen. Laws 907, 921 ("former art. 5.26-1”). .See former art. 5.26-1, § 4; State Farm Lloyds I, 255 S.W.3d at 800-01. . See Act of June 2, 2003, 78th Leg., R.S., ch. 206, §§ 1.01, 2(7), 2003 Tex. Gen. Laws 907-8 ("former art. 5.142”) (defining "rate”); former art. 5.26-1, § 1(b) (incorporating definitions from former art. 5.142). . Former art. 5.26-1, § 2(b) ("Initial Rate Filing”); see also former art. 5.142, § 3 (requirements applicable to initial filed rates calculated by the insurer). Specific considerations in setting this "rate” were to include "past and present loss experience”; "the insurer's historical premium, exposure, loss, and expense experience”; "catastrophe hazards within this state"; "operating income”; "investment income”; and "a reasonable margin for profit.” Id. § 3(b). . See former art. 5.142, § 2(b) (defining "excessive,” "inadequate,” and "unfairly discriminatory”); State Farm Lloyds I, 255 S.W.3d at 801 (construing "just, reasonable, adequate, not excessive, and not unfairly discriminatory for the risks to which it applies” to mean that "the rate must allow for a 'reasonable profit’ but not one that' is ‘unreasonably high in relationship to the insurance coverage provided’") (quoting former art. 5.142, §§ 2(b)( 1 — 3), 3(d); former art. 5.26-1, § 2(b)); see also American Alliance Ins. Co. v. Board. of Ins. Comm'rs, 126 S.W.2d 741, 744 (Tex.Civ.App.-Austin 1939, writ ref’d) (reasoning that “unreasonable, unjust, excessive, or inadequate” in context of insurance rate-making implies “a duty both to the insuring public and the insurance carriers" to promulgate rates “which shall be as low to the insured as is consistent with a reasonable return to the insurer”). .State Farm Lloyds I, 255 S.W.3d at 795 ("A government-set rate must allow a regulated company to not only recover its operating expenses, but also to realize reasonable returns on its investments sufficient to assure confidence in the continued financial integrity of the enterprise. A rate that does not allow for a reasonable rate of return is confiscatory and unconstitutional.” (citing Duquesne Light Co. v. Barasch, 488 U.S. 299, 307, 109 S.Ct. 609, 102 L.Ed.2d 646 (1989); Jersey Cent. Power & Light Co. v. Federal Energy Regulatory Comm’n, 810 F.2d 1168, 1181 (D.C.Cir.1987); Railroad Comm'n v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559, 572 (1956)); see also American Alliance, 126 S.W.2d at 742 (holding that fire insurance rates "must be reasonable and nonconfiscato-ry ... [tjhat is, the rate prescribed, whether maximum or fixed, must be sufficient to yield a reasonable net capital return, áfter deducting all necessary and proper expenses.... Otherwise, the rate is confiscatory and viola-tive of the stated constitutional inhibitions.”). . See Actuarial Standards Board, Actuarial Standard of Practice: Documentation and Disclosure in Property and Casualty Insurance Ratemaking and Loss Reserving, at 9 (1989) (superseded 1991) (incorporating "Statement of Principles Regarding Property and Casualty Insurance Ratemaking” adopted by the Board of Directors of the Casualty Actuarial Society in 1988) (currently available at http:// www.actuarialstandardsboard.org/pdf/ superseded/asop9_l 989.PDF) (hereinafter “ASOP 9”); Actuarial Standards Board, Actuarial Standard of Practice No. 30: Treatment of Profit and Contingency Provisions and the Cost of Capital in Property/Casualty Insurance Ratemdking, at §§ 1.1, 2, 3.1 (1997) (currently available at http://www.actuarialstandards board.org/pdf/asops/asop030_057.pdf) (hereinafter "ASOP 30”). . See State Farm Lloyds I, 255 S.W.3d at 792. . See id. (citing former art. 5.26-1, § 2(a)). . See id. (citing former art. 5.142). . See id. (citing former art. 5.142, § 5). . See Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 6.04, sec. 3(a)(5), 2003 Tex. Gen. Laws 907, 926 (currently codified at Tex. Ins. Code §§ 2251.00-252) ("former Art. 5.13-2”). . See State Farm Lloyds I, 255 S.W.3d at 792 (citing former art. 5.13-2, §§ 5, 7). . See former art. 5.26-1, § 5(b). . Id. § 6. . See State Farm Lloyds I, 255 S.W.3d at 805 (quoting former art. 5.26-1, § 7). . See former art. 5.142, §§ 13(b), 14; State Farm Lloyds v. Geeslin, 267 S.W.3d 438, 443-46 (Tex.App.-Austin 2008, no pet.) (State Farm Lloyds III). . See Texas Dep't of Ins. v. State Farm Lloyds, 260 S.W.3d 233, 238-49 (Tex.App.Austin 2008, no pet.) (State Farm Lloyds II); State Farm Lloyds III, 267 S.W.3d at 441-47. . See former art. 5.142, §§ 2, 3(d); former art. 5.13-2, §§ 1, 3. . State v. Public Util. Comm'n, 883 S.W.2d 190, 199 (Tex.1994). These principles derive in part from the view that ratemaking is in the nature of a legislative act, having only *95prospective effect, as opposed to being an adjudication of rights in a controversy that has previously arisen. See Railroad Comm'n v. Houston Natural Gas Corp., 155 Tex. 502, 289 S.W.2d 559, 562-63 (1956); see also Central Power & Light Co. v. Public Util. Comm’n, 36 S.W.3d 547, 554 (Tex.App.-Austin 2000, pet. denied) (citing City of Alvin v. Public Util. Comm’n, 876 S.W.2d 346, 362 (Tex.App.-Austin 1993), judgment vacated w.r.m. sub nom. Public Util. Comm’n v. Texas-N.M. Elec. Co., 893 S.W.2d 450 (Tex.1994)). .See former art. 5.142, § 2(b) (defining an “excessive” rate as one "likely to produce a long-term profit that is unreasonably high” and an "inadequate” rate as one "insufficient to sustain projected losses and expenses”); accord former art. 5.13-2, § 3(b)(a)-(b) (same). . See ASOP 9, at 6 ("A rate is an estimate of the expected value of future costs.”). . See, e.g., Southwestern Bell Tel. Co. v. Public Util. Comm’n, 615 S.W.2d 947, 954-55 (Tex.Civ.App.-Austin 1981, no writ) (distinguishing retrospective ratemaking from administrative proceedings on remand to set rates prospectively from date of the original agency order that had been reversed on appeal). . Former art. 5.26-1, § 4; see State Farm Lloyds I, 255 S.W.3d at 800-01. . To be clear, State Farm Lloyds was not seeking an increase from its implemented rate (nor could it do so retroactively), but only to oppose any reduction in its implemented rate. See State Farm Lloyds I, 255 S.W.3d at 792 (noting that the insurer had filed its then-current rate as its "initial rate" under former art. 5.26-1). . "Catastrophe” in this context refers, according to the Commissioner, to "large and fortuitous occurrences that cause widespread property damage,” such as a hurricane or "large hailstorm in a major metropolitan area.” . See Tex. Ins. Code §§ 441.051(1) (circumstances constituting insolvency), 822.205 (requiring surplus); see generally id. §§ 441.001-.351 (“Supervision and Conservatorship”). . See, e.g., Harlan v. United States, 409 F.2d 904, 906-07 (5th Cir.1969). . See 28 Tex. Admin. Code § 7.7 (2014) (TDI, Subordinated Indebtedness, Surplus Debentures, Surplus Notes, Premium Income Notes, Bonds, or Debentures, and Other Contingent Evidences of Indebtedness). . See id. § 7.7(c), (e), (f); see also id. § 7.7(a)(3) (defining "surplus note"). . See id. § 7.7(f)(1). . See id. § 7.7(b)(1). .However, because the liability for and timing of the payments themselves were tied to minimum surplus levels, State Farm Lloyds was not projected to actually make any payments of interest or principal during the initial period, nor for some time thereafter. Rather, the schedule reflected the amortized cost of paying the required principal and interest over the course of the 15-year term as surplus levels increased past the threshold mínimums. . See ASOP 30, at § 1.1 (observing that both underwriting provisions and contingency provisions "provide for the cost of capital”). . See id. at § 3.7 (recommending inclusion of contingency provision), App. 1 at 6-7 (discussing role of contingency provision). . See id. at § 3.7. . See id. . Elaborating, the Commissioner credited testimony that "since many exposures are not covered by the catastrophic insurance coverage and since in Texas, many catastrophes are *100too small to exceed the reinsurance deductible (or ‘attachment point’), the coverage is incomplete.” .See former art. 5.26-1, § 5(a) ("Not later than the 10th day after the date of receipt of the commissioner’s order under Section 4 of this article, an insurer may file a petition for judicial review in a district court of Travis County.”). . Tex. Gov’t Code § 2001.174; former art 5.16-1, § 5(a); see also former art. 5.142, § 13; Tex. Ins. Code § 2254.004(d). . See Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452-53 (Tex.1984). . Slay v. Texas Comm'n on Envtl. Quality, 351 S.W.3d 532, 549 (Tex.App.-Austin 2011, pet. denied). . See Texas Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex.2006) (per curiam). . See Slay, 351 S.W.3d at 549. . See Vista Med. Ctr. Hosp. v. Texas Mut. Ins. Co, 416 S.W.3d 11, 26-27 (Tex.App.-Austin 2013, no pet.) (citing Charter Med.-Dallas, 665 S.W.2d at 453). . See Granek v. Texas State Bd. of Med. Exam’rs, 172 S.W.3d 761, 778 (Tex.App.-Austin 2005, no pet.) (citing John E. Powers, Agency Adjudications 163 (1990)). . Slay, 351 S.W.3d at 549. . Tex. Gov’t Code § 2001.174(1). . See Railroad Comm’n v. Texas Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex.2011); Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 565 (Tex.2000) (citing Charter Med.-Dallas, 665 S.W.2d at 453); City of El Paso v. Public Util. Comm'n, 344 S.W.3d 609, 619 (Tex.App.-Austin 2011, no pet.); Buddy Gregg Motor Homes, Inc. v. Motor Vehicle Bd., 156 S.W.3d 91, 99 (Tex.App.Austin 2004, pet. denied). . To this extent, we make an exception to the general rule that we reach constitutional issues only after exhausting non-constitutional grounds. See AEP Tex. Commercial & Indus. Retail Ltd. P'ship v. Public Util. Comm'n, 436 S.W.3d 890, 907 (Tex.App.-Austin 2014, no pet.) (citing In re B.L.D., 113 S.W.3d 340, 349 (Tex.2003) (“As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds.’’)). . The prohibitions against confiscatory government-imposed rates derive from Article I, Section 17 of the Texas Constitution, see Tex. Const. Art. I, § 17(a) ("No person’s property shall be taken ... for or applied to public use without adequate compensation being made .... ”), and the Fifth Amendment to the United States Constitution, see U.S. Const. Amend. V ("private property [shall not] be taken for *103public use, without just compensation"), as applied to the states through the Fourteenth Amendment. . See Sheffield Dev. Co. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004) (characterizing the counterpart Texas and federal constitutional takings protections as "comparable"); City of Corpus Christi v. Public Util. Comm’n, 51 S.W.3d 231, 242 (Tex.2001) (observing that federal case law is instructive on whether rates constitute an unconstitutional taking of regulated entity’s property under the Texas Constitution); see also Bentley v. Bunton, 94 S.W.3d 561, 577-78 (Tex.2002) (noting that where parties do ■ not argue that differences in state and federal constitutional guarantees are material to a case, and none is apparent, "we will limit our analysis to the First Amendment and simply assume that its concerns are congruent with those of article I, section 8"). . See Federal Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed. 333 (1944). Although relying on these principles in State Farm Lloyds I to partly invalidate former art. 5.26-1, this Court did not have occasion to explore their parameters in detail. Instead, as State Farm Lloyds observes, the State Farm Lloyds I analysis "was based on a straightforward syllogism” that followed from the requirement that a government-set rate afford a regulated entity a reasonable rate of return on its capital — “rates can be confiscatory without necessarily leading to insolvency.” See State Farm Lloyds I, 255 S.W.3d at 794-95. Beyond its recognition of the basic constitutional concepts and that they apply to insurance rate regulation, State Farm Lloyds I provides us little guidance here. . Duquesne, 488 U.S. at 307-08, 109 S.Ct. 609 (quoting Federal Power Comm’n v. Natural Gas Pipeline Co. of Am., 315 U.S. 575, 585, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); Covington & Lexington Tpk. Rd. Co. v. Sandford, 164 U.S. 578, 597, 17 S.Ct. 198, 41 L.Ed. 560 (1896)). . Federal Power Comm’n v. Texaco, Inc., 417 U.S. 380, 391-92, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974) (citing In re Permian Basin Area Rate Cases, 390 U.S. 747, 769, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Hope, 320 U.S. at 601, 64 S.Ct. 281). . Id. (citing Natural Gas Pipeline, 315 U.S. at 585, 62 S.Ct. 736). . Hope, 320 U.S. at 602, 64 S.Ct. 281 (internal citations omitted). . Id. In the same vein, the Supreme Court would later observe: The economic judgments required in rate proceedings are often hopelessly complex and do not admit of a single correct result. The Constitution is not designed to arbitrate these economic niceties. Errors to the detriment of one party may well be cancelled out by countervailing errors or allowances in another part of the rate proceeding. The Constitution protects the [regulated entity] from the net effect of the rate order on its property. Duquesne, 488 U.S. at 307, 109 S.Ct. 609. . 320 U.S. at 603, 64 S.Ct. 281. . Id. (internal citations omitted). . Permian Basin, 390 U.S. at 792, 88 S.Ct. 1344. . Id. at 770, 88 S.Ct. 1344 (citing Hope, 320 U.S. at 603, 64 S.Ct. 281); see also Jersey Cent., 810 F.2d at 1189 (Starr, J., concurring) (suggesting that "confiscatory” "is a shorthand way of saying that an unreasonable balance has been struck in the regulation process so as unreasonably to favor ratepayer interests at the substantial expense of investor interests”). .See City of Dallas v. Stewart, 361 S.W.3d 562, 568 (Tex.2012). Stewart concerned an administrative determination that private property was a nuisance, a determination tantamount to holding that constitutional takings protections were inapplicable. See id. at 569. While granting that judicial scrutiny of the agency's findings of "historical facts” (e.g., "whether or not the structure had foundation damage”) could be limited to assessing whether there was reasonable support by substantial evidence, the Texas Supreme Court held that due process required de novo review of the agency’s construction and application of the property owner's substantive rights under the takings clause (e.g., "Did the damage to the structure make it a threat to public *105health or safety such that the government may deprive a citizen of her ownership in the structure?”). Id. at 578-79 & n. 24. The court reasoned that such de novo review was required because agencies lacked delegated power to construe constitutional provisions and any legislative attempt to delegate them such power “ 'would raise serious and grave issues of a separation of powers violation.’ " Id. at 568 (quoting Ronald L. Beal, Texas Administrative Procedure & Practice § 9.3.1 [c] (2011)); see also id. at 577 (further emphasizing the "subordinate status” of administrative agencies “in our system of government” and "the ‘legitimacy deficit’ inherent in administrative adjudication”) (quoting Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L.Rev. 229, 239 (1985)). As State Farm Lloyds emphasizes, its constitutional challenges are grounded in the same substantive constitutional rights as in Stewart, and that case, consequently, guides our review of those aspects of the Commissioner's order. Cf. Permian Basin, 390 U.S. at 792, 88 S.Ct. 1344 (indicating that reviewing court should "not ... supplant the [ratemakerj's balance of these interests with one more nearly to its liking, but instead [merely] assure itself that the [ratemaker] has given reasoned consideration to each of the pertinent factors”). . See State Farm Lloyds I, 255 S.W.3d at 795 ("A government-set rate must allow a regulated company to not only recover its operating expenses, but also to realize reasonable returns on its investments sufficient to assure confidence in the continued financial integrity of the enterprise.”). . See 28 Tex. Admin. Code § 7.7(f)(1) ("[T]he terms for payment of ... interest shall result in the reflection of a financial statement liability.”). . See id. § 7.18 (2014) (TDI, National Association of Insurance Commissioners Accounting Practices and Procedures Manual) (adopting all Statements of Statutory Accounting Principles, except to the extent they contradict the Insurance Code or TDI rules). . See National Association of Insurance Commissioners, Accounting Practices <& Procedures Manual of2005, Statements of Statutory Accounting Principles No. 41, par. 5, at 41-3. . See Texas Indus. Energy Consumers v. CenterPoint Energy Houston Elec., LLC, 324 S.W.3d 95, 97 (Tex.2010); CenterPoint Energy, Inc. v. Public Util. Comm’n, 143 S.W.3d 81, 83 (Tex.2004). . See Hope, 320 U.S. at 603, 64 S.Ct. 281. . See, e.g., Central Power & Light, 36 S.W.3d at 553 (describing how costs of gas utility's capital, including debt capital, are determined in calculating the rate of return) (citing Southern Union Gas Co. v. Railroad Comm'n, 692 S.W.2d 137, 141 (Tex.App.-Austin 1985, writ ref'd n.r.e.)); Texas Water Comm’n v. Lakeshore Util. Co., Inc., 877 S.W.2d 814, 819, n. 6 (Tex.App.-Austin 1994, writ denied) (noting that “utility’s interest payments on long-term debt are used to compute the utility's rate of return”) (citing Southern Union, 692 S.W.2d at 141). . See Hope, 320 U.S. at 602, 64 S.Ct. 281. . Cf., e.g., Southern Union Gas, 692 S.W.2d at 141 (distinguishing different methods for "costing" long-term debt capital, common stock capital, and preferred stock capital within determination of gas utility's rate of return, and explaining that the cost of long-term debt capital is simply "the interest rate contractually agreed upon by the investor and the [regulated entity]”). . See id. . State Farm Lloyds summarizes its contentions as follows: *108Regardless of how "capital costs” might ordinarily be treated for accounting or ratemaking purposes, and regardless of whether an insurer’s replenishing surplus depleted by catastrophes can properly be considered an "investment in capital” in the traditional sense (a company investing in an asset to turn a profit), the fundamental point is this: unless the rates set for the insurer allow it simultaneously to (1) rebuild and maintain its surplus at prudent levels, and (2) timely pay off both interest and principal on its surplus note, the financial integrity of the insurer will be crippled. Without rates allowing for both (1) and (2), the insurer will not be able to "operate successfully” (because it will have surplus below prudent levels) and it will not be able to "maintain its credit” and attract capital” (because lenders don't renew loans to deadbeat clients). Reply br. at 20-21 (citing Hope, 320 U.S. at 603, 64 S.Ct. 281). . See Hope, 320 U.S. at 603, 64 S.Ct. 281 ("[T]he return to the equity owner should be commensurate with returns on investments having corresponding risks.”). . State Farm Lloyds suggests that the Commissioner conceded in his order that nothing short of a 1:1 premium-to-surplus ratio would be "prudent” in its insurance operations. This is not entirely accurate. The Commissioner did accept a characterization by Appel that a 1:1 premium-to-surplus ratio was "minimally prudent,” but this was only with respect to the hypothetical, risk-adjusted level of capital that was utilized in calculating underwriting profit. See infra at 40-41. The Commissioner explicitly rejected the 1:1 ratio as a requirement or minimum benchmark in assessing State Farm Lloyds's financial condition. Order at 101 & n.276. . Texaco, 417 U.S. at 391-92, 94 S.Ct. 2315. .Bluefield Waterworks & Improvement Co. v. Public Serv. Comm’n, 262 U.S. 679, 694, 43 S.Ct. 675, 67 L.Ed. 1176 (1923); see also Market St. Ry. Co. v. Railroad Comm’n of State of Cal., 324 U.S. 548, 567, 65 S.Ct. 770, 89 L.Ed. 1171 (1945) ("The due process clause has been applied to prevent governmental destruction of existing economic values. It has not and cannot be applied to ... restore values that have been lost by the operation of economic forces."); Galveston Elec. Co. v. City of Galveston, 258 U.S. 388, 395, 42 S.Ct. 351, 66 L.Ed. 678 (1922) (rate cannot be held confiscatory merely on the basis that it is insufficient to enable the company to recoup prior losses). . State Farm Lloyds offers the cautionary example of an affiliate, then the largest homeowners insurer in Florida, who elected to withdraw from that market after it "was denied adequate rates after unanticipated surplus-draining hurricane losses [reduced] its surplus ... to dangerously low levels despite a multi-million dollar surplus-note loan from State Farm Mutual.” . See, e.g., Permian Basin, 390 U.S. at 770, 88 S.Ct. 1344 ("... any rate selected ... from the broad zone of reasonableness permitted by the Act cannot properly be attacked as confiscatory”). .See CenterPoint Energy Entex v. Railroad Comm’n, 213 S.W.3d 364, 373 (Tex.App.-Aus-tin 2006, no pet.) ("An agency may accept or reject the testimony of witnesses. An agency is not obliged to accept opinion testimony from an expert- — even if it is the sole evidence on the issue. But an agency must provide a basis for its rejection of uncontradicted, un-impeached testimony that is neither inherently improbable or conclusory. The [agency] can reject such uncontradicted evidence if it explains or makes findings that permit courts to review the reasonableness of that rejection, but a failure to explain can result in reversal.’’) (internal citations omitted). . See, e.g., Pioneer Natural Res. USA, Inc. v. Public Util. Comm’n, 303 S.W.3d 363, 367-68 (Tex.App.-Austin 2009, no pet.) (agency " 'is the sole judge of the weight to be accorded the testimony of each witness ...’”) (quoting Central Power & Light, 36 S.W.3d at 561). . Railroad Comm'n v. Lone Star Gas Co., 618 S.W.2d 121, 124-25 (Tex.Civ.App.-Austin 1981, no writ). . See Railroad Comm'n v. Moran Util. Co., 728 S.W.2d 764, 766-67 (Tex. 1987); Central Power & Light, 36 S.W.3d at 557-58; Lone Star Gas, 618 S.W.2d at 124-25. . See Pioneer, 303 S.W.3d at 367-70 (although no witness testified specifically that 35% of utility's computer system should be considered used and useful and included in its rate base, agency could reasonably infer that calculation from evidence that (1) 70% of the system’s cost was allocable to its regulated operations and (2) 50% of the system had been used and useful during the test year; observing that "even where no evidence suggests a specific figure explicitly, the [agency] may infer that figure if it is supported by the body of evidence on that issue”); see also Central Power & Light, 36 S.W.3d at 547 (observing that because an agency "may accept or reject in whole or in part the testimony of the various witnesses who testify ... [i]t follows ... that substantial evidence will support a method of calculating [a rate component] that is an amalgam of methods proposed by different witnesses”). . See City of El Paso v. Public Util. Comm'n, 883 S.W.2d 179, 185-86 (Tex.1994) (where evidence "ranged from expert testimony that no imprudence disallowance should be imposed, to testimony that a 50% imprudence disallowance should be imposed, and finally to testimony that there is no known theory to quantify the flaws in [the utility’s] decision making process,” and "because of the admitted complexity in valuing decisional imprudence in this case," holding that "there is a reasonable basis for the Commission to, in its discretion, select an amount within the range of figures provided by expert testimony of the parties”); Pioneer, 303 S.W.3d at 373-74 (where parties presented competing evidence as to whether utility’s capital structure for purposes of ratemaking should be its actual 83/17% debt-to-equity ratio versus a hypothetical 60/40% ratio, holding that Commission's selection of a hypothetical 75/25 figure was supported by substantial evidence, as “the evidence presented in favor of any against each endpoint was such as would allow for a hypothetical capital structure to be selected between those endpoints”); cf. id. at 370 (also acknowledging that, in a particular case, the evidence might conceivably permit only a binary choice between two end points). . See Tex. Gov't Code § 2001.174(2) (reversal required only "if substantial rights of the appellant have been prejudiced”). . See Pioneer, 303 S.W.3d at 367-70. . See Tex. Gov’t Code § 2001.174(2) (reversal required only "if substantial rights of the appellant have been prejudiced”). . See ASOP 30, at 7. . See id. . See Central Power & Light, 36 S.W.3d at 557-58. . See City of El Paso, 883 S.W.2d at 185-86. . Pioneer, 303 S.W.3d at 370; see also id. at 373 & n. 1 (rejecting complaints that no evidence established that a 75/25 capital structure "was more correct than a 77/23 structure, a 79/21 structure, or a 81/19 structure,” as "our inquiry is not whether the evidence establishes that the capital structure selected was the best option available,” only whether there was a reasonable basis for it, and in that regard "the record evidence may preponderate against the agency’s decision and yet still ... satisfy the substantial evidence standard) (emphasis in original). .See former art. 5.142, § 14. In fact, State Farm Lloyds acknowledged as much in State Farm Lloyds III, observing that "[i]f [it] loses, and the Commissioner’s rate reduction order is reinstated on appeal, then Articles 5.26-1 and 5.142 provide their own remedy for any overcharges during that period ... [it] will be required to refund the 'overcharged premium’ to each policyholder, plus interest, in accordance with the terms of those statutes.” 267 S.W.3d at 446. . See Act of June 2, 2003, 78th Leg., R.S., ch. 206, § 1.01, 2003 Tex. Gen. Laws 907, 912-13 (currently codified at Tex. Ins. Code §§ 2254.001-.004) (“former art. 5.144”). . See former art. 5.144(b). . See former art. 5.144(c). . State Farm Lloyds also argues that the specific 0.5% downward adjustment the Commissioner made was not supported by substantial evidence. We need not reach this contention. . The Commissioner found that both earned premiums and non-catastrophe loss and LAE would increase by 1.3% each year, hurricane catastrophe loss by 1.8%, non-hurricane catastrophe loss and LAE by 4.85%, and fixed expenses by 3%. . I.e., one year after the last day in which State Farm Lloyds’s implemented rate had been in effect, July 31, 2008. . See Central Power & Light, 36 S.W.3d at 547. . See, e.g., State Farm Lloyds II, 260 S.W.3d at 245 ("Even if supported by substantial evidence, however, an agency’s order may be arbitrary and capricious... . Id. at 245 (citing City of El Paso, 883 S.W.2d at 184; Dunn v. Public Util. Comm'n, 246 S.W.3d 788, 791 (Tex.App.-Austin 2008, no pet.)). . Duquesne, 488 U.S. at 315, 109 S.Ct. 609. . See Tex. Gov't Code § 2001.174(2)(f) (requiring reversal of agency "findings, inferences, conclusions, or decisions” that are” "arbitrary or capricious”); Granek, 172 S.W.3d at 782 (reversing agency decision that was arbitrary and capricious). . Former art. 5.26-1, § 6. . Former art. 5.142, § 14. . As originally enacted in S.B. 14, former art. 5.144 contained no requirement that interest be awarded on refunds held to be due. See former art. 5.144. During the Legislature's following regular session, it twice amended former art. 5.144 to require interest on refunds at the rate described above. See Act of May 29, 2005, 79th Leg., R.S., ch. 291, § 1, 2005 Tex. Gen. Laws 869; Act of May 29, 2005, 79th Leg., R.S., ch. 899, § 16.01, 2005 Tex. Gen. Laws 3098, 3112. However, during the same session, the Legislature recodi-fied the underlying provisions of former art. 5.144 — minus the amendments adding the interest requirement — into chapter 2254 of the Insurance Code. See Act of May 24, 2005, 79th Leg., R.S., ch. 727, § 2254.002, 2005 Tex. Gen. Laws 1752, 2145. Although omitted from the recodification, the new interest requirement was nevertheless preserved and effective by operation of law. See Tex. Gov’t Code § 311.031(c) (“The repeal of a statute by a code does not affect an amendment, revision, or reenactment of the statute by the same legislature that enacted the code. The amendment, revision, or reenactment is preserved and given effect as part of the code provision that revised the statute so amended, revised, or reenacted.”). The Legislature corrected the omission from the recodification during its next regular session with amendments to section 2254.003 of the Insurance Code, see Act of May 23, 2007, 80th Leg., R.S., ch. 484, § 3, sec. 2254.003, 2007 Tex. Gen. Laws 850, 851, and the provision has remained in substantially this form through the present time, see Tex. Ins. Code § 2254.003. . See supra note 111.

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283528/

"OPINION\n\nTHOMPSON, JUDGE:\nThis action was filed by the appellees, Banner Industries of N.E., Inc(...TRUNCATED)

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283529/

"OPINION\n\nDIXON, JUDGE:\nAppellants, Walter M. Butt and Karen Petigo, co-administrators of the est(...TRUNCATED)

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283530/

"WILLIAM W. FRANCIS, JR., J.\nSheri Stephens (“Stephens”) appeals the motion court’s “Judgme(...TRUNCATED)

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283531/

". WILLIAM W. FRANCIS, JR., C.J./P.J.\nPlaintiff Jerry Jacob McClain, by and through his mother and (...TRUNCATED)

01-04-2023

01-07-2022

https://www.courtlistener.com/api/rest/v3/opinions/5283532/

"DANIEL E. SCOTT, Judge.\nI concur in affirming the judgment as to Counts II through X. I respectful(...TRUNCATED)

01-04-2023

01-07-2022