Bay City Federal Savings & Loan Ass'n v. Lewis

463 S.W.2d 268, 1971 Tex. App. LEXIS 2750
CourtCourt of Appeals of Texas
DecidedJanuary 27, 1971
DocketNo. 11797
StatusPublished
Cited by8 cases

This text of 463 S.W.2d 268 (Bay City Federal Savings & Loan Ass'n v. Lewis) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bay City Federal Savings & Loan Ass'n v. Lewis, 463 S.W.2d 268, 1971 Tex. App. LEXIS 2750 (Tex. Ct. App. 1971).

Opinion

SHANNON, Justice.

Bay City Federal Savings and Loan Association and Wharton County Savings and Loan Association have appealed from a judgment of the 167th District Court of Travis County sustaining the order of the Savings and Loan Commissioner of Texas, granting a charter for Matagorda County Savings and Loan Association to be located in Bay City.

We affirm the judgment of the trial court.

Appellants’ brief contains five points of error, the first being procedural and those remaining inquiring whether or not the [269]*269Commissioner’s order is supported by substantial evidence.

Appellants complain by their first point that the form of the Commissioner’s order renders it invalid. Specifically, their complaint is that the Commissioner failed to set out the underlying facts- supporting his finding that the prerequisites set out in Sections 2.02, 2.03, 2.04, 2.05 and 2.06 of the Act1 had been complied with, and appellants maintain that by virtue of Sec. 11.11 (4)2 of the Act such omission vitiates the entire order. Among other things, Section 2.02 prescribes the range of the par value of shares of permanent reserve fund stock issued by an association and the minimum amount of permanent reserve fund stock which must be issued and outstanding. Section 2.03 requires that the amount of permanent reserve fund stock required by the Commissioner, within the range established by Section 2.02, be subscribed to and paid for in cash as a prerequisite to approving a charter. Section 2.04 permits the Commissioner to require an applicant for a new charter to pay in capitalization, additional to the amounts paid in for permanent reserve fund stock, in the form of paid-in surplus. Sections 2.05 and 2.06 relate to mutual associations and are not applicable inasmuch as the proposed association is a permanent reserve fund stock association.

The finding under attack was made by the Commissioner in basically the statutory language of Subsection (1) Section 2.08 of the Act.3»4

This is the second case in which this Court has recently considered the effect of the omission by the Commissioner to set out underlying facts supporting a required finding. In Gonzales County Savings and Loan Association et al. v. Lewis et al., Tex.Civ.App., 461 S.W.2d 215 (1970), this Court held such omission was error requiring reversal. Subsections (a), (b), (c) and (g) of Sec. 2.4 of the Rules and Regulations for Savings and Loan Associations 5 and Sec. 2.08(2) of the Act were at issue in that case. In Gonzales the findings of the Commissioner, made pursuant to these subsections of the Rules and this section of the Act, were contested on the merits in the administrative hearing, the trial court, and in this Court.

In the present case, unlike Gonzales, the Commissioner’s finding that the prerequisites set out in Sections 2.02, 2.03, 2.04, 2.05 and 2.06 had been met, were never seriously at issue at the administrative level or in the trial court. Appellants did allege in the trial court that the Commissioner’s finding that the prerequisites set out by the above sections had been met, was not supported by substantial evidence, but the trial court ruled adversely to appellants, and by not assigning as error the trial court’s holding, appellants abandoned that claim.

Appellants do not contend that they were harmed by the omission in the order. That [270]*270the appellants were on notice of the basis of the Commissioner’s order is evidenced by their brief and argument. This Court in reviewing the Commissioner’s order is to determine whether or not challenged findings are supported by substantial evidence. Here this Court is not called upon to examine the substantial evidence questions with respect to Sections 2.02, 2.03, 2.04, 2.05 and 2.06 of the Act since appellants abandoned this position, and, since these findings were not really in issue below. We feel that neither appellants nor this Court would benefit by remanding this case to the Commissioner with instructions to set out the underlying facts supporting a finding which in fact is not contested.

We hold that the omission by the Commissioner to detail underlying facts supporting a finding which is not, in fact, in issue is not error of the character requiring reversal. Appellants’ point of error number one is overruled.

Appellants’ points of error two through five raise substantial evidence questions. These points assert that the Commissioner’s findings of public need, of volume of business sufficient to indicate a profitable operation, and of absence of undue harm to existing associations, are not reasonably supported by substantial evidence. These findings, among others, are required by Sec. 2.08 of the Act as a condition precedent to the issuance of a charter to a proposed association.

A governing principle in reviewing the Commissioner’s order is that if there be substantial evidence in the record supporting the findings, then the order must stand, even though the Commissioner may have decided differently from what the reviewing court might have decided. Gerst v. Goldsbury, 434 S.W.2d 665 (Tex.Sup.1968).

For substantial evidence review purposes a summary of evidence supporting the Commissioner’s order follows. Mata-gorda County, in general, is the community to be served by the proposed association. Matagorda is one of the tier of twelve counties fronting the Gulf of Mexico. Bay City, the county seat, is also the principal center of economic activity in the area. Historically, rice farming and ranching have been the paramount economic pursuits in the county but within recent years mineral exploitation and manufacturing have also become of major importance.

Matagorda County’s population in 1967 was approximately 32,635 while that of Bay City in 1968 was about 17,000. The county has grown in recent years and has experienced a higher percentage of population growth than that of the State as a whole. From 1960 to 1968 the average annual percentage increase for the State was 1.7% while that of Matagorda County was 2.6%. The county population, while increasing, has also had an increase in the “effective buying .income per household.” In 1957 that income per household was $4,911.00 while in 1967 that figure had enlarged to $7,202.00.

The commercial and industrial activity of the area under consideration is centered in and near Bay City. The most important recent industry is the Celanese plant located adjacent to Bay City. Celanese has a payroll of about 500 employees at high wages totaling about $5,000,000 annually. Since the installation of the plant, it has been enlarged and diversified almost continuously. The Celanese operation, it seems is a “basic” industry i. e. one which attracts other service type industries and businesses to accommodate the additional people brought into the area by the “basic” industry. In this connection, in 1964 The Big Three Industrial and Gas Equipment Company built a plant costing $1,000,000 to supply Celanese with oxygen and nitrogen. In 1966 Coastal States Gas Producing Company constructed a $6,000,000 plant in the county. Another recent industrial development is the construction of a $1,500,000 rice drying plant.

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767 S.W.2d 463 (Court of Appeals of Texas, 1989)
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474 S.W.2d 453 (Texas Supreme Court, 1971)
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474 S.W.2d 459 (Texas Supreme Court, 1971)

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463 S.W.2d 268, 1971 Tex. App. LEXIS 2750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bay-city-federal-savings-loan-assn-v-lewis-texapp-1971.