*1 al., Petitioners, James O. GERST et al., Respondents. L. et
Orren NIXON No. A-II357. Supremo Court Texas. 30, 1966.
Nov. Rehearing Feb. Denied
proposed
will conduct its busi-
association
profitable op-
ness is such as to indicate
;
eration
“(4)
operation
as-
*3
unduly
sociation
not
harm
will
exist-
ing association.”
Among
holdings, the trial
court
neg-
concluded as
law that
a matter of
Austin,
Carr, Atty. Gen.,
Waggoner
ative findings of
Commissioner
were
Phillips,
Wright,
B.
W.
T.
Paul
Hawthorne
reasonably supported by
not
substantial
Fainter, Jr.,
Attys.
Phy,
W.
Asst.
John
evidence and hence
action was
his
null and
Gen.,
petitioner,
for
O. Gerst.
James
void.
judgment
This
was affirmed
Appeals,
Court of Civil
“(3)
a
need for the
there is
Act which
Savings and Loan
(b) of the
proposed association and the volume
and should
calls for
determination
our
community
in which
business
point
but no evidence shall be admissible which
consider the
before we
discussed
first
application.
not adduced at the
on
by the Commissioner’s
raised
matter before the Commissioner
be-
unusual
in this case is
The record
officially
noticed in
record of
as to the
judge’s doubt
the trial
cause of
hearing.”
provisions contained
certain
relating
Act
and Loan
judge
findings
pre-
The trial
by the
entered
of orders
ponderance of the evidence
basis
11.12
852a
agency. Art.
contrary
to those made
the Com-
provides
part:
missioner,
is,
judge
found that
there was
need for the
association,
Review
that there was a likelihood that
"Judicial
*4
operations
its
would
successful and that
in-
Any person with
11.12.
“Sec.
the operation
of such
associa-
who
thereof
subject matter
in the
terest
tion would not unduly
any existing
harm
ruling
act, order,
any
dissatisfied with
Also,
stated,
association.
as above
the trial
taken
of the Commissioner
or decision
judge concluded as a matter of law that
regulation
or
made,
any rule
or with
or
negative
findings un-
and
Commissioner
promulgated
der
2.08(3),
art. 852a
(4) were not rea-
§
and Loan Section
Building
sonably supported by substantial еvidence.
connection
Finance Commission
It
purpose
was the obvious
of the district
Act, may se-
this
the administration of
judge to
upon
pre-
decide the issues
a
in the fol-
thereof
judicial review
cure
ponderance of the evidence basis and also
* * *
manner:
lowing
in accordance with the substantial evidence
appellate
rule so that an
court could in all
Trial,
of an
“(5)
(a) The review
probability dispose of the case or remand
of
under
8.141
order issued
the same to the Commissioner for further
manner
Act shall be tried
same
proceedings, art.
11.12(6),
852a
§
complain-
generally and
civil actions
avoid remand
a
to the trial court.
jury.
to a
party shall be entitled
ing
rules
by the
governed
The trial shall be
provision
The
fact
issues
procedure and all
of civil
purports
which
to vest a court with the
such order
to the
of
material
power
preponder
to redetermine
a
pre-
de novo on
shall be determined
ance of the evidence basis the issues set
ponderance of
sub-
the evidence
forth in art.
2.08(3),
852a
is un
§
apply.
stantial
rule shall not
evidence
constitutional because it is violative of the
Any
competent
relevant
separation
powers provision
against
shall be admissible for or
Texas
provides:
Constitution which
order.
powers
“The
of the Government of
act,
any
The rеview of
“(b)
the State of Texas shall be divided into
order, ruling or
of the Com-
decision
three distinct
regulation
departments,
any
each of which
missioner or of
rule
jury
separate body
shall be confided
a
shall be tried
without
to
are
gen-
actions
which
the same manner as civil
to wit: Those
magistracy,
one;
erally
those which
Legislative
and all fact
material
to
issues
order, ruling,
another,
Act,
deci-
those
validity of
to
.Executive
another;
person,
complained
and no
regulation
sion or rule or
are Judicial
one of
persons, being of
in such trial on the
collection of
shall be redetermined
evidence,
departments,
exercise
shall
prepоnderance
competent
these
tags
under certain
and loan associations
1. This section
to the removal
relates
directors,
employees
prescribedconditions.
officers
of sav-
not
either
administrative act
whether or
power properly attached
reaching
agency
action
the dis-
except
herein
others,
in the instances
puted
supported
(Art.
conclusion
permitted.”
expressly
Ann.St.).
Constitution,
substantial evidence.
Vernon’s
The rule thus stated
been
has
consistent-
withholding of
granting
ly
In the recent
followed.
case of Gerst
authority to do
permit, certificate or
Cain,
v.
(Tex.Sup.1965),
S.W.2d 168
statutorily regulated com
in a
business
this court said:
func
is аn administrative
mercial endeavor
“The discretion
conferred on
Com-
provision
and under the constitutional
tion
grant
missioner to
or refuse charters
he
cannot
quoted,
function
above
881a-3,
Arts. 881a-2 and
Vernon’s
The judicial
delegated
judiciary.
Statutes,
Texas Civil
was not
un-
re
inquiry
regard
such matters is
discretion;
findings
bridled
could
his
employed by the
method
stricted
arbitrary
capricious,
but must
its
arriving
support
have had
in substantial evidence.
example,
By way
it is
decision.
Phillips Brazosport Savings
v.
and Loan
province
determine
administrator
Ass’n, Tex.Sup.,
929;
there is a
need for
whether
Gibraltar
Loan Ass’n
proposed association. The administrator
*5
Falkner,
548;
Tex.Sup., 371 S.W.2d
there is no
having determinеd that
Ass’n,
Benson v.
Savings
San Antonio
association,
ques
judicial
for such
need
Tex.Sup.,
358 pointed supported by
As out the of Commissioner “are not Court Civil the evidence, Appeals, the the Commissioner found that the substantial and that prerequisites, applicable, required forth find- conclusively set so affirmative where 2.02, 2.03, 2.04, in ings 2.05 and 2.06 the refusal .make them was Sections to with; arbitrary complied capricious”. of the had Act been proposed Incorporation the Articles of procedural change in substantial proper in form and that those as named this rule 1963 Act was to make the the initial directors fit in such articles were record of the Commissioner’s proper persons and direct the affairs produced originally rather than evidence proposed of the Livingston Savings and court in the basis from which it must Association, find- negative but made conclusively determined if the evidence ings as (3) (4) Sec- subsections of required findings relating to affirmative Cain, tion 2.08. In Gerst v. (3) the matters in subsections mentioned 168 (Tex.Sup.1965), art. we considered (4) Thesе of Section 2.08. 881a-2, (repealed Vernon’s Ann.Tex.Stats. provisions require findings there (a) that: 1963, p. 269, 113, Acts Leg., 58th ch. public proposed for is a associa- need the 2, Act,' the 1963 and Loan art. tion; the (b) the volume of business 852a, Ann.Tex.Stats.), Vernon’s re- community proposed in which associa- the quired charter, that before a granting the will tion its business is such as conduct Commissioner must affirmatively find that may profit- indicate that the association (1) advantage the convenience and operated; operation ably the of (3) promoted would be by allowing pro- the unduly proposed will association posed building and loan association to any existing harm association. incorporated business, and engaged in population neighborhood place of the of location and in the sur- “public need” We think the words rounding country afforded reasonable 2.08(3) have the as used same promise adequate support of for asso- meaning “public necessity” the words as ciation. The Commissioner in the Cain Banking used of as in the Texas Code negative findings upon these case made 1943, 342-305, Ann.Tex. c. art. Vernon’s grant and refused a charter. We issues Stats., is, or obvious a substantial judgments of ruled that before the associa community need circumstances, light Appeals tion of attendant Civil trial court and of Court distinguished mere conveniencе from a setting aside the order in affirmed, absolute or necessary the one hand could be it was dispensable need on other.6 negative findings hold that “public necessity” pro- Mor- forth set court and term is to be filed with the Nelson, N.W.2d 322 33 an v. Mich. evi- the introduction new hibits Supreme (1948), Court wherein the dence.” Michigan Registra- Department said: In Parker Education, N. I11.2d tion primary function “[S]ince Supreme (1955), E.2d banking involves welfare facilities Illinois said: portion of the and public convenience reviewing is limited to “The concerned, seem reason- it would record to deter- consideration ‘necessity’ ably used to follow that findings and of the if the orders mine controlling in- was not statute against legislature which enacted tended weight evidence.” manifest indispensa- mean absolute law Instead, opin- Chimney we are ble need. National Bank 6. In Rock import meaning Banking ‘ne- ion that Board of Tex- Houston v. State *9 employed cessity’ is (Tex.Civ.App.1964, in as, the statute 595 S.W.2d 376 justifying a substantial Appeals writ), or obvious need fol-' of no the Court Civil chartering exposition of bank in view a new of the definition lowed
359 Livingston paper general that a We are in accord mill and other Appeals plants may of industrial holdings the Court of Civil in located Polk County. need, This of likelihood of would as a the issues matter of course result in existing increasing as non-injury success and to an business and house building repeat need activities in the Livingston sociation. We area. opinion County adjoins Tyler Polk County detailed in the intermediate court’s and the intervenor-petitioner, by way summary. other than The rec of Southeast Texas Sav- ings County mortgages Association, ord of and liens for Polk is located Woodville, county aggregating Tyler County, show that a total of 655 loans seat of $6,089,979.28 which is 38 miles Livingston. on real made for from estate were Should 1962, activity years up including business 1963and in the Livingston area September Only County increase, 1964. 64 loans Polk op- of of these an additional by portunity profitable savings operations loan by made associations Lufkin, Huntsville, Liberty, Woоdville located in Or association would become avail- able ange, num and there Woodville and Houston. This is evidence County that Polk percentage-wise regarded as expansion ber well the na by below area of average. expectations tional association. profit There uncontroverted These of would testimony experienced difficulties diminished by op- to some extent expense savings extra incurred of erations of new residents and loan associa- Polk tion County obtaining in at Livingston. loans from non located appears, It how- ever, resident during institutions. It was that years stated 1962, 1963 and Supreme Mississippi Court of Planters first 1964, nine months оf the Polk Garrott, 248, County Bank v. 239 Miss. 122 So.2d area had developed not been as a territory appreciable 256 (1960), is not “mere convenience of import- economic satisfy requisite ance sufficient to Southeast Texas and Loan * * * But, ‘necessity’. sup of when Association (Woodville)7. substance, In plemented by proof the “injury” of facts and circum resulting to Southeast Texas * * * which, persuasive the granting stances are of a charter Livingston to a ‘necessity’, proper it is con to take into association would be related solely to com- petition testimony sideration as to the for future probable element business. The slowing down growth the rate of оf an convenience”. The an ex evidence shows existing association because of a lessened market; isting mortgage that the opportunity to obtain prospec- business in a capitalized; properly association is and that tively developing competi- area because of per competent it would be controlled tion regarded cannot be as an injury to such Upon injury ex sonnel. to an issue Cain, existing In 388 association. Gerst v. association, isting large we think the case is said: (Tex.Sup.1965), this court S.W.2d 168 ly Cain, controlled Gerst v. (Tex.Sup.1965). appears there It free “Competition is the lifeblood of may strong probability is a only that a dam systеm. enterprise It is economic savings loan Trinity near because associations constructed River justi- disclosed relevant circumstanc- is ‘a substantial or obvious need fying chartering a new bank es.” Moran case also been followed of the disclosed relevant circum- has view ” Mississippi. Supreme Court stances.’ Garrott, In Bank Miss. Planters County concerned, 248, (1960), Polk it the court Insofar as So.2d speaking Moran, appears Southeast said: agree $22,- only aggregating made with the statement made three loans “We Michigan opinion $8,000.00 in its In 000.00. it made one meaning case, during the Moran loan and 1964, first months of nine ‘necessity’, import as the word loans. here, used in a statute such as we have *10 interest, support finding affected with a Brazos- evidence to of undue port injury L. v. American Sav. Sav. & Ass’n to the association.” Ass’n, S43, L. 161 Tex. The judgments of the courts below are af- they protected injury that from undue firmed. competition. brought about excessive Sav. & L. Ass’n of Houston Southwestern ON Falkner, REHEARING 160Tex. S.W.2d 917. is here that char- There no evidence Savings and Southeast provide Metropolitan tering would that the Association asserts competition existing as- excessive for hearings be governing and rules undue which would result in sociations * * * and Loan Commissioner fore injury to them. procedure for adequate are defective no proof nothing doubt that more “We or attendance of witnesses compelling the chartering a new association
than that deposition testimony by means of securing difficult’ an ex- will make it ‘more for that showing is no provided for. There its isting new increase association to sav- discovery the lack of witness attendance can, satisfactory’ under ings to ‘a level operated any be, to procedures, if there protesting association. circumstances, prejudice constitute substantial said agency relating- judicial policy. Thus, if an A to comment five appearing ir- consideration in its decisions to within of administrative include Pennsylvania factors, if to ex- it were LJEtev. 40 U. of relevant Congress following pertinent intended which makes the observa- a factor clude pol- enforcing federal Ad- in Federal it consider tions with reference icy, discre- its it ‘abused’ ministrative Procedure Act: would have 1) agency give meaning tion, would “In order to a reasonable because: congression- 10(e) (of acting longer Administrative under to section 1009), mandate; 2) Act, ex- an and its 5 U.S.O. and value Procedure al light legislative body pert to ex- for deference reason reluctance —the congressional judicial review, trust— most rational clude courts and 10(a) would construction of section would lost. agency question way an which to be once a has third seem that “A agency discretion, might tobe committed to its would been abuse discretion only weight ground give more one for reversal would unreasonable ‘arbitrary’, presumably Congress agency an decision which is factors. relevant not, delegate words, not, possibly or in an of discre- could abuse and did authority agency act arbitrari- tion. an agency question Thus, ly capriciously. an of what constitutes if “The discretion, however, completely re- abuse of unreasonable reached facts, easy Clearly weighing of dis- the relevant one. existence after sult finding agency aside. cretion in an demands set the court should agency Admittedly task for a decisions dеlicate to some it is a deference agency acted which ferently court have made dif- to decide that would pur- arbitrarily despite it ‘Abuse the fact the first instance. discretion’, then, weighed ported those consid- all must mean more to have considerations, erations, agency, considering only than those after congressional weighing facts, all the relevant which are relevant purpose; probably one task is struck a balance different from that but the willing per- must be which court would have reached. which the courts advantages hand, agen- of admin- if vast On the other form the agencies lost to be are not cies are vested with discretiоn istrative Con- gress primarily through balance ex- misuse. Because because of their delicate, pected however, expertise divining the courts effectu- so striking do, agen- should, probably ating congressional policy. avoid they cy’s only agency expertise probably feel unless of value action down long weighs competent has so as it those considera- to find thereby tions, only considerations, unreasonably, clearly those acted Congress take discretion’.” intended that ‘abused its effectuating legisla- into account
361 Texas, Cir., Apparently developed 5 326 F.2d the facts Trevino v. State all pertinent it deemed 403. circumstances inquiry is in before Commissioner. It Petitioner seeks to invoke rule position they prej- to contend that 108, Texas, Aguilar v. State of 378 U.S.
udiced because a lack of 1509, 723, 84 12 S.Ct. L.Ed.2d rule-making empowering the 15, 1964, long decided after ex- June compel Commissioner to the attendance of piration days mentioned above. testimony witnesses, deposition secure Walker, 5 in See footnote Linkletter v. discovery. present enforce record does 1731, 618, U.S. L.Ed.2d 601. S.Ct. present question procedural due process upon pure- and we decline to rule holding We are aware of no of the Su- ly hypothetical case. preme making Court of the United States Texas, Aguilar supra, the rule v. Stаte of rehearing
The motions for are overruled. retroactive. prayed The relief for is denied. Jessie Ex TREVINO. parte No. 40131. Don McCALLUM et Bobby al., Appellant, Appeals of Texas. Criminal
Court Feb. 1967. The STATE of Texas, Appellee.
No. 40062. Trevino, pro se. Appeals of Texas. Court Criminal
Jessie Feb. 1967. Austin, Atty., Douglas, State’s B. Leon for the State.
OPINION MORRISON, Judge. of habeas application for writ
This anis Peti- corpus directly this Court. filed by this affirmed tioner’s conviction State, Tex.Cr.App., 380 in Trevino v. on Rehearing was denied S.W.2d 118. Petitioner, according to 29, 1963. June us, application made no before States the United Supreme Court of days the 90 within for writ of certiorari U.S.C.A., Supreme Court provided by 28 Instead, petitioner Rules, Rule corpus to habeas application for writ of District Court United States denied, and District, which was Northern affirmed. denial was appeal, the order