*1 dead, “Q at that Roy reason all think Ochoa was No to one sumed as fact boys might you those reason to be be after ? Ochoa’s brothers had appellant, questions rea- after the such and no, sir, He said he an- “The Court: the sonably and inferred insinuated question. swered the ques- appellant Numerous killed Ochoa. appellant tions if he didn’t No, were asked “The Witness: sir. boys to think that the Ochoa reason háp- “Q (By Attorney) State’s What questions were after These him. pened Ochoa?” Roy objection state con- repeatedly asked over veyed testimo- jury nature testimony The reveals that the as- after appellant ny that the had the information party, age 19, left his cousin saulted and wrongfully Roy that his killed and Ochoa m., they a tavern about a. stand- 12:15 were him. good brothers had reason to be after about ing facing the front of the tavern fifty away, feet when three Latin- saw perti- not foregoing testimony was them, as walking American men toward trial. It any nent issue raised on they passed, party heard assaulted prejudice reasonably calculated “click,” pistol then saw in the hand jury, rights appellant before de- him, the men shot three who trial, prived impartial him a fair scene; men fled from the he had requires reversal. never these and never seen men before knew them. out, judgment pointed For error is reversed the cause remanded. appellant testified that he never party, knew the assaulted never him saw

at the shooting, the scene of that as he shot,

walked from the he heard a tavern

began running, and other then he heard

shots. charge

No defensive was submitted thereto, jury, objections there were no requested charges presented. no & LOAN BRANCH SAVINGS SPRING ASSOCIATION, Appellant, On the the motion new hearing of

trial, attorney the state’s who cross-exam- trial, testi- ined on the main GERST, part Loan&

fied follows: Commis James O. al., Appellees. of Texas et sioner question “Q Well, you ask I’ll No. 11516. your you then. Did know own knowl- edge you questions time asked Appeals of Texas. Court of Civil Defendant been no-billed Roy Ochoa? offense of murder of Austin. Oct. 1967. “A I did.” Rehearing Denied Nov. testimony There is trial on no referring Roy merits about or Ochoa except by the boys as shown

the Ochoa propounded by

questions the state to questions

appellant. By these state as- *2 Gen., Martin, Atty. George C.

Crawford Cowden, Gen., Atty. M. First A. Asst. J. Gen., Carubbi, Jr., Legal Atty. Staff Asst. Flowers, Kelley and Robert Sam C. Asst. *3 Austin, Attys. Gen., appellees. for O’QUINN, Justice.

Appellant Spring Savings is Branch County, ap- Loan Association Harris pellees Savings are the and Loan Commis- Texas, court, sioner of defendant district Savings and Houston First Association and Savings and Loan As- sociation, intervenors.

' ap- questions presented by Two are peal. First, findings do the of the Sav- ings Commissioner, ap- denying and Loan pellant’s application for a branch support in sub- Second, stantial evidence? is estopped prosecute this suit because precludes is a and laches case stale demand appellant’s right? assertion of Appellant, principal with its Houston, sought Long Road in Point office, be locat- to establish a branch Hous- ed at 720 Milam Street Appellant’s was denied ton. in an and Loan Commissioner February 1963. On order entered original appellant filed March 22, petition seeking judicial court district the Commissioner review of the order of granting of compel and for mandamus to the branch office. October heard this cause

The trial court 18, 1966, judgment final and in a 17 and 21, 1966, plea of stale sustained October urged by Commis- demand and laches alternative, In the and intervenors. sioner the Com- that the order of the court held February, 1963, refusing ap- missioner office, plication was reason- for the branch Austin, Long, Long, R. & Jacobsen Joe ad- ably supported by evidence substantial Barber, Brown, Erwin, Sparks, Maroney & Austin, Erwin, appellant. at the trial. duced Jr., Frank C. neighbor- in the filed, additional office

Appellant’s original application was be served and proposed to hearing hood before Commissioner was held, country and the volume surrounding the order of the Commissioner was indicate entered, there is not such as to petition business judicial review probable operation is prior profitable January was filed that a the date 852a, time.” St., period of Article be- within a reasonable Vernon’s Ann. Civ. Act, came (Savings effective. and Loan appeal brought pursuant Since this Leg., 1, p. 269). Acts 58th sec. ch. 881a-3, provisions of Article Vernon’s appeal governed by provisions This Ann.Civ.St., applicable to and the case law prior savings and loan law found prior enact and loan statutes in Article 881a-l through Vernon’s Ann. 852a, ment the Commissioner’s of Article St., Civ. and cases decided under these stat- *4 subject judicial review under order is to utes. applied by the rule as substantial evidence 881a-2, Linder Article the Vernon’s courts this State administrative Ann.Civ. to St., the required grant including Savings and Commissioner was to orders those of the if, Cain, a savings upon finding and loan Tex. charter Loan Commissioner. Gerst that required 699, the capital Civ.App., minimum affirmed Austin, had been 379 S.W.2d paid in incorporators (Tex. cash and 1965). S.W.2d were of such integrity fitness and For reason that if the trial court was justify belief would conduct an honest sustaining plea correct stale de- and operation, efficient appeared it also laches, question mand and of substantial to the Commissioner that: decided, evidence give need not be we “ * * * public convenience and deciding attention first whether advantage promoted will allowing applicable doctrine of laches is to this proposed such building loan associa- case.

tion to be incorporated engaged * * * business, and popula- [that] support In of the trial action court’s tion neighborhood place of such sustaining plea demand and stale and in the surrounding country affords laches, appellees argue change of condi- promise reasonable adequate support part tions and diligence a want of on the * * * for association.” appellant in prosecuting this suit Ap- set aside the order. Commissioner’s The same statutory basic standards pellees urge appellant should be rel- governing the creation of egated to “the the Commissioner to allow associations control establishment their application Commissioner to consider the branch offices. Savings Southwestern upon actually ex- basis of conditions Falkner, Loan Association of Houston v. isting, upon purely instead of basis of 417, 917; 160 Tex. 331 S.W.2d Falkner v. Appellant fictitious it conditions.” denies Association, Gibraltar Savings Tex.Civ. unreasonably delayed asserting Austin, App., ref., (writ 348 S.W.2d 467 prosecuting claim in court and contends e.). n. r. appellees delay failed resulted to show in a good position faith their change refusing appellant’s application In for office, following hearing held detriment. 18, 1962, December the Commissioner After appel- Commissioner denied 25, 1963, February his order of found application lant’s for a branch office Feb- 25, 1963, advantage ruary “The public brought convenience and suit for promoted judicial month, will not be following establishment review the on 21, 11, March Attorney answered 1966. On March 22. The Commissioner Commissioner, Savings April 8, Benjamin Franklin General as counsel for in writing the trial court that the intervened advised and Loan Association June by agreement First case had Houston been reset 1963. The intervention of May 2, April 25 First filed until 1966. On Savings Association was not Savings aligned Association intervened and April 25, 1966. support itself order of the Com- April others L. D. Cain On thereafter, Shortly April missioner. the Commissioner filed Attorney Houston First and the General Metropolitan Savings seeking a charter for filed motion for continuance. The motion be located and Loan Association to granted and the cause was reset for downtown Houston. On trial 1966. June June American and Loan Association Attorney 1 the On General filed a applied for a branch Commissioner June original pleaded first amended answer and office to serve Houston. time the first stale demand and laches. applications, the Commissioner denied both When cause came to trial both Metropolitan being July order June intervenors, November, Houston First Both American order Savings, interposed a second mo- Metropolitan filed and and American *5 tion The for continuance. motion was successfully prosecuted appeals in court. court,

granted by subsequently trial the Metropolitan and With the two cases of the cause was set down for trial October appellant, acting pending, American on when the case was beard. representing the advice of counsel associa- evidence, After the close of

tion, decided to await the outcome First filed proceeding with other cases before two jointly, 21, pleas on amended in October appeal appeal. Metropolitan its own The adopting intervention Commissioner’s 1965, 10, after became final March decision plea of stale demand and laches. The trial Cain, by Supreme in Court Gerst day, judgment court entered its the same The American (Tex.1965). S.W.2d October dis- appeal April, final in was position Supreme applica- by the Court of April, Attorney From when this for of error from decision of tion writ suit, appellant’s General answered until Savings and American Court in Gerst v. Metropolitan disposition final of the Austin, Association, Tex.Civ.App., Loan cases, years during elapsed American two ref., e.). n. r. (writ S.W.2d 352 actively pursue its appellant which did not period Appellant delayed this on cause. management of attorney in active attorney advice who recommended of its case, from the appellant’s appeal withdrew would waiting what courts to see Metropolitan a time after within short Ameri- Metropolitan and the decide final, ac- and American cases became can cases. cept place Washington staff a Man- the United States. the President of until two-year period, and Following this in the hands was left agement case court about the case heard in district was November, 1965, an who died associate occurring later, delays eighteen months attorneys were following present appear beyond the control been to have prosecute employed by appellant charge attorney in appellant. After cause. upon the in 1965 and of the case withdrew him attorney succeeded death who 1966, appellant, through its January, In present employed case, appellant March setting trial attorneys, obtained promptly bring Testimony attorneys who set about to district court. was intro- prosec- period Any delay in duced to that 1963 was a the case to trial. show rapid growth money ten appellant’s the next when was cution of case for time through readily available, period that in by appellees but 1966the months was occasioned “money cause had come to a halt and postponement and continuances. tight.” was finally October, being heard after set for trial four times at the instance It changed was because of these condi- appellant, beginning January. tions, appellees argue, that the trial court suit, thereby relegating “abated

Appellees point out that when the Com- appellant to the Commissioner.” appellant’s application missioner heard February, location in downtown Houston agree changed We do not that these con- there seven pointed by appellees prop- ditions out are operating offices in downtown erly chargeable appellant as to consti- so when the case was tried proof plea tute affirmative of stale there were nine such facilities in down- demand and laches. increase, course, town Houston. The by was occasioned the addition of Metro-

politan American, applications, whose Any changes in conditions subse already pointed out, were considered and quent to the order entered the Commis denied Commissioner 1963 short- February, sioner in would be irrele ly after was refused a branch vant to the issue of whether order was office. reasonably supported by substantial evi question dence. On the of whether court,” “But appellees the trial argue, applicable, changed doctrine of laches required “was validity to test the by appellees conditions shown eco relate to *6 upon Commissioner’s order the basis of changes city nomic in the of the facts that existed when the order was Houston, appel and are unrelated to what entered and for that give reason could no lant did to do that or failed could consideration to the change in condition appellees position change caused their by caused the two additional offices.” their detriment. “On the hand,” appellees assert, other changed Evidence in conditions down- “when the Commissioner acted he could not period town between the in and did not change consider the in condi- appellant’s ap- the Commissioner denied by tions caused opening the addi- of two plication in 1963 and the time of trial in tional offices because that time such of- 1966, actually in shows remarkable fices not in existence. In other in- banking savings the loan the words, neither Commissioner nor dustries, favorably affecting inter- the two trial court has ever considered whether or venors. not is entitled to the branch of- sought by fice it considering the fact that period deposits In this there savings are nine facilities loan $288,000,000. by Between banks increased in the central business district Houston.” the time order and Commissioner’s savings in Harris beginning of 1966 change In addition to the from seven to in- County savings and loan associations installations, appellees nine argue that con- $327,000,000, $431,000,000 from creased savings industry ditions un- County $758,000,000. Savings in Harris derwent change a radical between Febru- year $250,000,000 up in a two banks went acted, ary, when Commissioner October, 1966, period ending June, when this case was tried The workday population capital, profits surplus undivided 30,000 period $6,171,000, persons increased loss reserves in this was be- tween early October, 1966, $4,853,000 $11,024,000. 1963 and from when climb tried, being 170,- was gain case from Appellees rely upon Burlington Truck 200,000 000 to parking workers. Off-street States, Lines v. United 371 U.S. spaces 4,000, 30,000 34,000, rose arguing S.Ct. 9 L.Ed.2d period. this space Downtown office at the changed support conditions remand of this beginning 17,700,000 square of 1963 was cause to the further con- Commissioner for feet, and at the time of trial these accom- Supreme sideration. In that Court case 2,200,000 grown by square modations had found that the Interstate Commerce Com- 19,900,000. feet to a total of More office mission in any its order did not state ra- space was constructed in downtown Hous- tional it connection between the facts ton from 1955 to 1966 than had been con- found and the choice of remedies made structed in history the entire of Houston disposing and the order prior to 1955. supported by not substantial evidence. Changed Court noted that Congress conditions in about four industry, loan appellees assert, months support after had the Commission’s order passed action type outlawing trial court in statute sustaining the plea agreement case, making laches. involved in

order of the Commission moot in that case. William Richards, George chief execu- The Court remanded case Com- tive officer Benjamin Franklin Sav- mission for proceedings consistent with the ings, testified regarding changed conditions opinion. industry It since 1963. was his testi-

mony that In the although there before there has case this Court been in- competition legislation creased been rendering no the order from the banking industry, competition are Commissioner moot. There no in- in 1966 facts, had “largely tervening been brought created about through govern- erased” or regulation. parties, courts, mental legislature, or the capital requiring aon re- $1,150,- justifying investment of that this case be profit 000 made a net manded $523,000, in 1965 to the Commissioner for further being a return percent light changed consideration condi- excess of *7 Burlington The tions. Truck Lines case is year. the investment for that Accounts of point. not in 13,931 this association increased from late 16,914 by 1966, in 1962 to July, growth a of controlling The basic rules of 2,983 Savings deposits accounts. by laches doctrine of courts of this period association in the same increased by Supreme State have been settled $19,463,000, $26,647,000 a from to cases, in three the most Court recent $46,140,000. capital, period In the same Pick decided in 1964. Culver v. which was profits, surplus undivided and loss reserves ens, 87, (Tex. 142 176 167 Tex. S.W.2d $1,420,294, $957,573 $2,377,867. rose from to Sup.Ct., adopted by Com.App., opinion Ry. Gulf, and Santa Fe 1944); Colorado Savings, Houston First the other inter- McBride, 442, 322 159 Tex. S.W.2d Co. v. venor, early from 1963 to middle of 6,991, City Fort v. (1959); 1966 increased accounts 492 Worth John 17,960 24,951 a accounts. (Tex.1964). from to son, 388 S.W.2d deposits The of this association su Johnson, City Fort v. In Worth $48,- period gain a

the same achieved that laches is Supreme held pra, Court 908,000, $81,594,000 to an increase defense, the burden an affirmative $130,502,000. association’s Growth delay in each case the bringing suit and pleader prove the essential ele- on to party’s other itself was cause (388 2). col. ments. S.W.2d detriment. being Court described laches akin to and, estoppel, citing defense of Culver v. Smith, 493, In 21 Tex. suit Flanagan v.

Pickens, supra, ele- stated two essential 1851, promissory brought on a note was ments of laches: years” plaintiff “nearly five waited principle judgment. The demanding before “Two of the essential elements of been sum- announced in this case has (1) delay by laches are unreasonable one marized as follows: having legal equitable rights or in assert- ing them, (2) good change faith “ * * * plaintiff in a case where position by another his detriment be- to of a to on the docket court fails pending delay.” (388 cause of the S.W.2d years, take action therein for four 2). col. be which time of action would the cause limitation, by barred the defendant prove burden both these ele should be released from fur be held to appellees, ments was they having assert ther defense to or case.” attention ed the doctrine as an affirmative defense. Hardee, Supply Tex.Civ. Brooks Co. prove element, If failed to either Beaumont, App., 32 S.W.2d defense fails. (writ col. 2 ref.). Carey Bros., Tex.Civ.App., In Reese v. apparent It is under the rule an Amarillo, (writ claim dsmd.), 286 S.W. nounced Supreme Court that there development to an interest in an oil must an delay by unreasonable party enter- awaiting withheld outcome of the that has injury worked party. another money prise spending in which this case others proof there adequate In is want of obligations for the benefit incurring inconvenience, show prejudice, injury project. After matters took a decided to either the Commissioner or inter- claimant, the turn in favor of interest was venors, and the lapse mere of time will not asserted. held that claim The court a presumption raise of such detriment. should earliest have been asserted possible time, especially since it was We can find nothing in the record tend- mining property fluctuating character ing to show that the Commissioner or the deliberately which avoided the claimant changed positions their intervenors enterprise. risks theft- any detriment delay reason of oc- casioned in this cause. believe there We injunction An was filed suit in Stoewer upon any appellees no basis Enamel, v. Porcelain 199 Md. 85 A.2d any point could have concluded at plaintiff but (1952) “allowed pro- had abandoned its effort *8 1950,” the matter at which time to rest until cure a branch in office downtown Houston. plant plaintiff the of the whole business complained changed. plant of had The was hand, the appellant other was able On to management under different and its busi- solely that it show was not at fault same, plant nor ness was not was delays support that did In occur. of practices engaged alleged in the to be argument appellant prosecute that did not appeal appellees rely nuisance. this with diligence, upon in ap- cases which courts several contractor, A claiming be actual

plied doctrine of laches or stale de- job, low bidder on a construction brought delay mand. In each cases, of these suit party Jersey (Somers shown fault in New v. the sole Const. Co. 626 facts in Education, the trial D.C., F.Supp. proof

Board of made at includes 198 en the Commissioner 732), injunction at the time preliminary filed for a existence denied, Com hearing order, which was or not the final his whether before tered opinion reached, aware the merits have been is shown to missioner voluntarily Phillips Brazosport contractor his com- Sav withdrew facts. v. of those plaint. Association, supra, He until contractor 366 S. ings waited another and Loan completed 2, 937, seek- 1. construction before 1 and col. cols. W.2d money damages board. ing from the school stated, in previously As Commissioner it The court held that would “not allow February de- order in following his improper contractor who is aware an appellant’s nying voluntarily intentionally de- award to Houston, denied downtown also lay in valid- seeking determination as to the in down- Savings American a branch office ity only of such an award and after con- a charter July town Houston in and refused completed money dam- struction seek Metropolitan to Cain and others to establish ages.” (198 F.Supp. 737). Savings in Houston in Novem- downtown none In these cases can we find au- later ber. action of the Commissioner thority case. controlling facts of this respect by the courts with was overturned Appellees have not shown that Metropolitan Savings American Sav- delayed unreasonably asserting rights, upon facts ings. decided These cases were proof any change nor have made existing July Houston position by the Commissioner or November, 1963, case before this and the any them intervenors the detriment of upon existing must be Court decided facts delay. because of the February in downtown Houston in year. appellant’s assignment We sustain appellees’ sustaining trial court erred Cain, Supreme su Court Gerst v. plea stale affirmative demand pra, observed that “Each evi substantial

laches. dence own case must be decided on its facts, and the will facts two such cases order, deny the Commissioner’s Whether rarely be the 388 same.” S.W.2d a branch ing application for col. 2. support has evidence must he decided substantial however, facts, Certain with reference principles review Court under the this com- economic of Houston are Supreme Texas prescribed by the Court of all growing mon to three cases out of (Tex. Cain, 168 in Gerst v. 388 S.W.2d In Commissioner’s orders Asso Savings Loan 1965); Gibraltar case, supra, Savings American this Court Falkner, (Tex. ciation v. 371 S.W.2d “ * * * in- observed the evidence ; Phillips Brazosport 1963) and phenomenal growth of all dicates associa- (Tex. Association, Loan S.W.2d concerned, pro- applicant tions whether 1963). testant, city in a are located such past has been whose presume will This Court equally phenomenal projected and whose was valid. The order the Commissioner growth portends (Emphasis the same.” may discretion of Court not be substi added) In the S.W.2d col. 2. This tuted for that of Commissioner. *9 Cain, Metropolitan Savings (Gerst case if must the his Court sustain Commissioner Austin, 699, Tex.Civ.App., af- 379 S.W.2d reasonably supported by order is substantial 168), firmed in 388 de- this Court may S.W.2d that this Court evidence. The evidence presumption validity the clined to recite or “the evi- consider under of discuss mass of * * * Memorial access affords to the Rusk Street bearing on produced dence east, Milam Street and Freeway the status growth or economic population, north freeway system to the he ties into the appears to that it Houston, except say the into South- and feeds and extends south added) 379 S. (Emphasis phenomenal." streets, adjacent Freeway. the All of west 699, 701-702. W. east, block Louisiana block Travis one city Ellifrit, formerly west, director of Ralph into tie two blocks west Smith Houston, qualified city of planning freeway system. for the Ellifrit tes- Houston independent an may trial this case as at the movements that left-turn tified consultant, one-way, concern- planning and testified easily, are made since all streets Hous- development ing growth proposed that the location with the result use, ton, trends, pat- population its land near appellant’s branch office is for trends, emanating It and economicbase. was terns and traffic flow center of downtown prior testimony years in 13 freeways his that Houston. into downtown from 533,876, by population increased Houston’s growth in build- reference to With years this during and that last three Houston, Ellifrit ing space in downtown 107,701 period growth persons, was or early testified that between 1955 twenty percent of the total more than 1,560,000 square feet total of office 13-year period. growth for the space part down-

floor was added that exhibits, prepared Ellifrit proposed From testified surrounding town freeway system location, about in Houston and by early 1963 an additional system upon of the 3,200,000 effect square feet had been constructed. of downtown Houston. It shown that increase was Included in newest loop freeway sys- central of Houston’s Building Tennessee with 33 contain- stories early tem in 950,000 1963afforded traffic access to space square feet floor ing and from the central district on 450,000 square business Building the Federal freeway system greatly all sides. The so em- Building feet. The Federal with 1400 improved traffic access in 1963 the ployees, is located one and a blocks half central great growth business district had a site, proposed from the Tennessee potential. testimony It was Ellifrit’s that Building is two south of the loca- blocks early had, downtown Houston in tion. have, future will the best access study parking spaces From a avail- any city

automobile of in the United States February, able in in the area sur- population within the same bracket with office, Elli- rounding proposed branch Ellifrit Houston. testified eight along frit found that in blocks Rusk reason the Houston central business district site, 1,279 proposed nearest Street many years will for dynamic, remain parking spaces a re- were available. As contrast to other cities where the down- parking spaces sult of the in the area and town streets are narrow and not connected people parking movement from sites satisfactory system freeways leading shopping the central district on Main city. to other areas of the All of the Streets, ap- Travis Ellifrit concluded streets the Houston central business dis- pellant’s proposed site was located in parts one-way trict system, are of a street large central business area with a foot-traf- with most of the feeding streets into passing fic the location. found He also major out of one expressways. past foot traffic flowed site site Building. Federal office is at the corner of Rusk and Milam Streets, Street, two Main blocks west of Future central business the central business district district in of Houston. Ellifrit viewed

628 city department in after planning Yeager and the in Dr. testified that II, city limits by following testi- best described close of World War square mony incorporated about 70 : of Houston miles, by grown 350 which had to 1960 * ** Feb- “Q (by counsel) as of square Yeager Dr. defined the Hous- miles. ruary, according studies region ton downtown area as between you City Hous- had made of Gray Avenue on the south and Buffalo area, you had ton and east Bayou north, on the bounded on not judgment formed a as to whether or by by west Crawford Street and on the peaked in the downtown area had out freeway large interchange. “In other growth it as whole or whether would words,” is, my in Yeager testified, Dr. “that any develop you continue to or did view, where the in downtown action is all, judgment that that about at as of Houston.” time? area Yeager

Dr. the downtown considered square in 100 1950 to consist about * * * No, (Ellifrit) thought A we blocks, in 160 or 170 blocks increasing to keep that it every and felt had reason to Yeager 1958. The area described Dr. because, place, growing in the first as action downtown Houston “where the growth the trends of have been con- comprises square is” 225 blocks. almost, except tinuous for the normal peaks valleys you in eco- workday popula- and find placed the Yeager Dr. conditions, 80,000 nomic and also as the floor tion in of downtown Houston 116,000 85,000 area tends to be flooded a little and then persons, to which increased to scarce; space felt becomes and we workday population 1958. In that the trends the entire 170,000, approximately reached an increase metropolitan area, normally which would 50,000 of more than downtown workers be reflected the Central Business Dis- years. five trict, grow, that it would continue to we felt because of the access to the parking in 1950 totaled spaces Off-street Central Business District and its wide 11,000 Houston, to increasing in downtown system street fact for some more than that number double years access, come ingress to traffic 22,300 spaces. number In 1962 the egress, actually improve, will would 20,000 30,000. spaces exceeded Between cause the central area and Core Area 30,000 parked during cars all grow expand. to continue And part day downtown Houston this has been borne out since time.” later, eight years 45,000. 40,000 number had climbed to testimony Further as to parked Yeager Dr. cars estimated development economic of Houston was re- 70,000. By prepared ex- about ceived at the trial from Dr. Francis S. hibits, park- appellant showed all downtown Yeager, qualified independent who as an vicinity ing of its expert. economic It was shown that Dr. per- and demonstrated about professor finance

Yeager, of economics and be con- University parking cent of downtown would engaged at the independent consulting work connec- veniently respect situated with chartering tion with of banks and prospective location to serve customers. years, and loan associations for a number of feasibility Yeager extensively Dr. and had conducted ten economic testified past years. studies in the five other economic indicia relative to

629 483,000 employed proximately people economy ef- growth and its Houston December, 1962, this County. By industry. Harris savings fect on the 560,000 peo- approximately increased to had testimony portion Yeager’s Dr. This ple.” ex- following in the twelve is condensed

cerpts from brief: 5 “ the income re- ‘Disposable income’ is

1 payment of in- maining persons after Yeager dis- taxes. Dr. estimated come per- the total “As of December County posable income Harris $2.3 County in Harris savings sonal financial 1962, year By per in 1958. billion 1955, they billion; by amounted to $1.25 per year.” had risen billion $3 billion; end of totaled $2.1 1960, At grown had billion. $3.2 1962, personal total financial

the end of 6 billion, a dramatic amounted to $3.9 increase billion since 1955.” of $1.8 space showed ex- “Downtown office plosive years question. growth in the * * * 1955, December, In there were

2 only square space feet 9 million of office At end downtown Houston. “Plaintiff’s Exhibit 6 the increase shows approximately there were 10 million ½ deposits in the banks. square However, only years feet. two approximately In there was bil- $1.7 later, December, 1962, million 7.7 deposits, December, lion in but square feet more had been added to the of- deposits grown billion, those an to $2.6 space fice downtown Houston.” increase of almost billion.” $1 7 3 “Plaintiff’s Exhibit 13 shows the new growth “Plaintiff’s Exhibit 7 shows space office built in downtown Houston deposits in demand growth and the in sav- from 1950 to from 1960 to ings deposits County of all Harris banks. * * * from 1963 to 1966. The bars on chart deposits individuals, Demand again show that from 1960 to there partnerships, corporations grew from square were more than 7 million feet of billion in 1954 to billion in 1963. $1.1 $1.45 space new office constructed in downtown deposits grew million $150 space which was more than dy- 1954 to million in 1963. This $775 was constructed in Houston from namic increase in in banks of $600 * * 1930 to 1959.” years million in nine space “The fact the new office con- impressive “Those increases in demand structed in downtown Houston from 1960 deposits savings deposits were irrefuta- through greater proof rapidly growing ble than all of Houston’s population, together rising family in- space constructed in downtown Hous- employment comes and increasing ton previous during thirty years is city. December, 1958, ap- In there were dramatic and convincing evidence of the explosive downtown Houston im- which to achieve is the location of mediately prior places refusal their offices in to the order of is- make them con- *12 people they sued and Loan Commission- venient are trying to er in serve. In economic this case.” view of conditions as in County existed Houston and Harris February, in Yeager Dr. testified

9 public that advantage convenience and promoted would been by allowing ap- surge in in growth “The dramatic pellant’s proposed placed branch to be economy growth is reflected in the at the corner of There Rusk and Milam. County savings of Harris and loan associa- were no associations located on Milam tions. Street at time, there was none at the time of the trial. no There were * * * “Plaintiff’s Exhibit 8 shows the located on associations Louisiana Street growth savings County in total in Harris time, and none at the time of the savings and loan associations from 1935 trial.” through 1965. In there were mil- $44 savings lion in deposits savings and loan County; associations in Harris million;

there were there $97 million; upon foregoing million. “Based $170 economic $263 As of December there were data, $431 it Yeager’s opinion was Dr. that the million. Although savings deposits in Har- population neighborhood County ris savings and loan associations in- place where this office was to be located spectacularly by creased million from $334 country and in the surrounding afforded December, 1955, December, 1962, there promise adequate support reasonable only were still seven savings and loan fa- proposed for the facility proposed at the cilities in downtown Houston in December February, location in 1963. He stated that just as there had been seven sav- statutory phrase neighborhood ‘the ings and loan facilities in downtown Hous- surrounding country’ appel- includes all of December, ton as of 1955.” depositors coming lant’s who have business freeway system.

into town picked parking site was relation lots and in relation to the feeder streets “All foregoing evidence indicated into and out feed downtown Yeager economy to Dr. that the in Houston easy it area to make convenient and County grown Harris at a much appellant’s present customers to do business faster rate than had savings downtown at the downtown office. He stated that and loan opinion, facilities. In his phrase surrounding ‘neighborhood and growth savings deposits, and loan while country’ also included the thousands spectacular, has no wise satisfied the who use the workers public savings need for additional and loan during day there neighborhood while per- offices when considers the total savings Milam or are no offices on Street savings expanding sonal available in the Street, none Louisiana Street Smith economy dynamic County of Harris and the population on Rusk The downtown Street. savings in commercial banks.” growing. It was large in 1962 large in terms' of whether it was measured vertically it area or whether was measured people buildings on principal in terms of in office Yeager’s “In Dr. view the tool Louisiana, Milam, and Travis Streets. companies have with Street, Thus, about five blocks proposed savings office would people site. serving the convenience surrounding ‘in neighborhood Lammers, Through executive vice James ” country.’ association, president appel- lant introduced evidence February 1963, In the Commission- when loan vigor associations denying appellant’s er’s order was entered It was shown that downtown Houston. application, savings and loan five associa- regard figures were not available tions and offices, two branch a total of the two offices *13 facilities, savings operating seven in testimony main Houston, but as five The downtown Houston. nearest office to savings offices adduced appellant’s proposed Benjamin site was through an officer one exhibits and of Savings, intervenors, Franklin one association. Street, with an Travis about office on proposed testimony, to one and a half blocks from The Lammers’ shown ex- intervenor, hibits, may part The location. other Houston be summarized in fol- as Savings, First office on Fannin lows : had its Savings Deposits

“Association Reserves Dec. 1957 Dec. 1962 1957 Dec. Dec. Benjamin 6,000,483 $26,641,277 Franklin 957,672 300,876 $ $ $ 41,244,000 (12-58) 80,829,727 Houston First 2,821,056 5,018,563 1,609,759 16,538,176 770,069 San 220,075 Jacinto 3,799,578 Savings 13,769,162 Home 326,246 636,391 respect With to all above “reserves,” listed general asso- to in as amounted to ciations, permanent represent $449,527.15. ‘reserves’ re- serve association, stock of surplus, loss Appellant argues testimony reserves, profits. ge- and undivided Lammers demonstrates that all and Lewis neric term ‘reserves’ is used to denote the savings having main loan associations capital structure of the association.” offices in downtown Houston were in a The summary on the based Lammers’ strong February financial condition .of testimony prin- included four of five 1963. Appellant avers from this evi- cipal savings offices Houston. dence the associations were shown to have association, Surety The fifth Savings Asso- dramatic, spectacular, had even ciation, savings facility was the newest savings five-year during period prior February, 1963, downtown Houston in hav- appellant’s application and that all five as- ing commenced business March substantially sociations had added to their Lewis, president Surety Keith Sav- J. retained reserves. ings, February the end testified that intervenors, Benjamin The two year, Franklin following association had Savings 1,509 accounts, First savings showed sub- representing total - profits years stantial deposits $4,222,410.14. By immediately pre- the end of ceding appellant’s Surety 2,855 accounts, application. Savings Benjamin $130,832.53 profit Franklin aggregating $7,193,841.62 de- showed $65,189.27 1965, savings 1961 and posits. At de- in 1962. the close of Houston First posits profit $470,606 had a net $14,415,355.03. At the totaled close 1962. Rich- ards, president capital, Benjamin Franklin, undivided business for tes- reserves, February, 1963, tified that profits, surplus referred and loss his associa- Benjamin at the trial that period of It was shown just gone through tion had hours $26,000,- maintained office strong Franklin vigorous growth, m., p. a. m. until 4 $27,000,000 deposits, profitable 9 o’clock o’clock 000 to oper- through Friday. Appellant Monday operation, always, its adding, as 8:30 Monday Friday from reserves, through and that far he knew ates as p. m. and on Sat- operating in a. m. to o’clock other o’clock associations p. m. a. m. to 3:30 strong urday open from 8:30 in a fi- downtown Houston were same hours for Appellant proposes the nancial condition. in hours This difference branch office. Lammers, president ap- executive vice contends, shows operation, appellant pellant Savings, Spring Branch testified advantage would public convenience and that the association business commenced proposed by appellant’s greatly served June, with its home office about office, even if nine to ten west Hous- miles of downtown its new location move to Savings did not its branch of- ton. site for five blocks south. fice was because of its convenient chosen Savings is Although Benjamin Franklin *14 pattern, location in the traffic downtown is office whose the downtown association west, major with the arteries from traffic of location proposed located nearest to southwest, leading and northwest into office, intervenor appellant’s branch this proposed downtown area near the location. this harm in inject the of declined to issue popula- Lammers that much stated “ * * * Richards testified that case. appellant’s surrounding tion in the area have frankly think we would very I don’t composed junior home office ex- is deposits any amount lost substantial Houston, employed in ecutives downtown are more we very fact that because of the many living and that of the housewives ** *.” convenient shop

the home downtown office area proposed area. The location downtown public that con- Appellant contends would serve the convenience served advantage be venience and would “ * * * present shop customers work or down- who the fur- for its branch office town. that testified ther reason that Richards Frank- quarter Benjamin the last appellant At beginning of 1963 had four and rate from lin its dividend reduced $10,300,000 acquired in savings deposits, because, at percent percent a half to four years operation. Ap- half four a attracting time, was the association pellant during period had established rate than associa- savings faster type in the money out tion could loan branch office in Houston which make.” they desired to loans profitable operation. been a It was opinion proposed of Lammers that rates,” lowering dividend “It was that branch would office in downtown Houston asserts, Benjamin appellant “that caused offer the association to services of savings deposits decrease Franklin’s public area as a whole in $3,000,000 quarter in the of 1962.” last readily was accessible because its location quar- that in the last Lammers testified principal to the business area downtown paying four easily reached ter of 1962 was and because location was savings deposits percent many and a half parking areas in downtown quarter of in the first continued the rate Houston. Both Lammers and Richards public,” segment “Clearly that Savings Benjamin testified that Franklin $3,000,- appellant argues, “which withdrew prior acquired a site five blocks to 1963 Benjamin Franklin would 000 from south on Travis Street as of its location of a near- cost, by the existence office, been well served at a Rich- future new home four facility paying a rate of stated, by savings of about one million dollars. ards Savings at its percent, percent Spring and a half Branch or one half business with * * * higher office, the would Benjamin proposed than Franklin site shoppers. pay desires to its savers.” convenient location Testimony in showing rebuttal existing sufficiency of sav Mere by appellant made through was introduced neighborhood in the ings and loan facilities Benjamin Richards of Savings. Franklin usually to take care of business opinion It important was his that the most ad is not of itself comes to such offices source in a downtown office Commis equate upholding the basis for people was the who work denying appellant a branch sioner’s order buildings immediately adjacent to the This Court Houston. facility. said Richards reviewing an principle in followed this that he had survey made no actual addi chartering an respect order with Benjamin Franklin accounts to determine Chimney National tional bank in Rock opinion respect whether this to source Board, Banking Bank v. State of Houston was accurate. position It was his Austin, no (Tex.Civ.App., 376 S.W.2d readily principle applicable writ). people accessible to in buildings surrounding respect facts of this case with office, the savings this association savings and loan facilities. was closer to some buildings than would economy city of general be the appellant. branch office for area, for and of its downtown Richards recognized appellant’s pro- five-year preceding period immediately

posed branch office would not be incon- order, experienced the Commissioner’s venient persons working in the Tennes- phenomenal *15 ad- growth, with remarkable see Building, who could walk two blocks re- population and economic vances of to transact business Spring with Branch period no During sources. this there was Savings proposed at the location. savings increase whatever in the number of Richards Benjamin testified that Frank- and in downtown Houston. loan facilities lin was conveniently located serving for existing savings The and associations loan traffic, vehicular pedestrian as well as area, during this same downtown traffic, and some he instances consid- period, prospered grew and never before. as ered his association office more conven- iently economy, located It to vehicular was under this state of ap- traffic than pellant’s growth, potential site. It and downtown Houston was his testi- mony that public Benjamin Commissioner found facilities of Frank- lin Savings adequate advantage were convenience and would not be receiving for savings promoted by establishment quarters accounts and its were ample neighborhood proposed branch “in the attractive. Richards said that his surrounding country,” every association offered be served and in service every facility that and that “the there” savings a volume of business and loan as- profit- sociation public could offer was not such .as to “indicate a operation” probable a able was within Savings fully was equipped period to take care reasonable of time. of the needs of its present customers and future customers as

well. It was Richards’ by view findings We hold that these savings and loan serving February offices downtown Commissioner in his order Houston in February, were reasonably supported sufficient are not to take care of all the that might business substantial evidence. have decided We come to such institutions. in sustaining Richards did be- that the trial court erred lieve that shoppers if plea were shopping in demand and laches of stale asserted downtown and wanted by appellees finding transact that the Com- reasonably missioner’s supported Association, order was American and Loan therefore, We, substantial evidence. 161 Tex. 342 S.W.2d 747. reverse and judgment render the public The interest of the here is obvi- district court. many savings ous. how and loan Just public re- associations does interest Reversed and rendered. quire in downtown Houston? is This primarily matter for the determination

DISSENTING OPINION the Commissioner. When the Commission- er entered in this his order case there HUGHES, Justice. savings seven Houston loan pleaded The in his Commissioner answer offices. there are nine. The Com- Now long delay, January March instance, should, be missioner in the first 1966, by Spring prosecuting Branch in decid- allowed to exercise his discretion judicial deny- for a suit review his order savings ing whether ten there should be application ing the Spring Branch for and loan Houston. offices a branch in downtown Houston as opinion, Presumably, majority under the being public detrimental to interest and applications if there were a dozen denied welfare and constituting laches and a association offices primary stale ruling, demand. In its appeal to in downtown trial pleading. court sustained this exist Court under the same conditions as majority ruling, has overturned this consider in this case we would have it is from that I this action court regard separately case each without respectfully dissent. if to each other one would granted entitled to be then all only by Spring excuse offered an in- create granted. This would was, long delay Branch for the on advice I have tolerable situation and counsel, that it await the outcome sane in a no doubt would resolve courts Metropolitan cases and Great American manner. each of which cases establishment downtown Houston appeal prosecuted its If It upheld. and loan association was undoubtedly dispatch it would have my opinion *16 is an excuse. that this invalid applications the later been successful since Metropolitan Great American is applied rule in this case to be Surely, finally granted. since as Equity stated Vol. 30A § C.J.S. identical first in time and facts follows: unjustly treated. it not have been would party required to dili- “A is exercise however, the situation inaction, its Due to seeking to and not inaction when gence It is longer first. changed. no is It is proceeding challenge legality third. interest, failure involving public should, it de- if Branch Spring I believe laches.” do so constitutes the Commis- sires, renew its can, right it establish, if sioner and support statement Cited association Education, savings and loan establish Board of Constr. Co. v. Somers condi- Houston under F.Supp. D.C.N.J. re- the time of such as exist at tions operate associations loan newal. and are con public interest field of judgment of would affirm the Brazo I institutions. quasi-public sidered court. trial Loan Savings and Association sport Austin, Tex.Civ.App. (Tex.S.Ct.1965). S.W.2d S.W.2d 168 1. 388 ref. n.r.e. writ