Texas Real Estate Commission v. Nagle

767 S.W.2d 691, 32 Tex. Sup. Ct. J. 258, 1989 Tex. LEXIS 13, 1989 WL 19185

Opinions

MAUZY, Justice,

dissenting on rehearing.

I respectfully dissent.

The Commission complains it should not be bound by the findings from the previous lawsuit, since it was not a defendant during that trial and had no opportunity to contest the evidence upon which the trial court’s findings were based.

Contrary to the court’s interpretation, the language of section 8, part 5 of the Act simply provides for the Texas Real Estate Commission to assume the defendant’s position for the limited purpose of application for payment from the recovery fund. Tex.Rev.Civ.Stat.Ann. art. 6573a, § 8, pt. 5 (Vernon Supp.1989). Thus, I would hold that the statute creates privity between the Commission and Graham and the Commission is bound by the findings made at the earlier trial. To hold otherwise allows the Commission to circumvent the purpose of the Act — to protect citizens of the State of Texas from harm resulting from proscribed acts by real estate brokers. Not only does this allow the purpose of the Act to be circumvented, but the goal of judicial economy is thwarted as well.

For the above reasons, I dissent.

SPEARS, J., joins in this dissent.