I respectfully dissent.
The hearing of the application for branch office finally closed on March 10, 1971, and on September 13, 1971, nearly six months later, the Commissioner entered his order approving the application. Section 1.9 of the Rules and Regulations for Savings and Loan Associations provides that 'the Commissioner Shall render his decision within thirty (30) calendar days after the date the hearing is finally closed. . . .' (emphasis supplied).
It is settled that procedural rules are binding upon administrators who issue them. Accardi v. Shaughnessy,347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), Service v. Dulles,354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957), Gulf Land Co. v. Atlantic Refining Co., 134 Tex. 59, 131 S.W.2d 73 (1939). As the Commissioner violated Section 1.9 by rendering his decision nearly five months late, the question to be resolved concerns the consequences accorded that violation.
The majority has held that the violation of the rule will be excused unless the party complaining can demonstrate that he attempted in some manner to obtain a prompt decision from the Commissioner and unless the party can demonstrate harm flowing from the delay. Were the question an open one, I would agree with the majority. However, Bay City Federal Savings and Loan Ass'n. v. Lewis, 474 S.W.2d 459 (Tex. 1971) dictates otherwise.
In that case the petitioners complained that the Commissioner failed to set out the underlying facts supporting his finding that the prerequisites set out in certain Sections of Vernon's Tex.Rev.Civ.Stat.Ann. Art. 852a had been complied with. Such omission, petitioners said in view of Section 11.11(4) vitiated the entire order. Section 11.11(4), among other things, requires that the Commissioner's findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
In reversing the judgment of this Court, the Supreme Court said:
*Page 948"The Court of Civil Appeals attempts to distinguish this case from its prior decision in Gonzales [Gonzales Cty. Savings Loan Assn. v. Lewis, 461 S.W.2d 215] on the grounds that the findings of
the Commissioner in the Gonzales case were contested on the merits but `were never seriously at issue' in this case, and that Petitioners do not contend that they were harmed by the Commissioner's failure to follow the statutory requirement in this case. Likewise, it is pointed out that the complaining parties in Gonzales urged lack of substantial evidence to support the findings which were not accompanied by statements of underlying facts, while Petitioners here did not preserve their substantial evidence challenge to the finding that the prerequisites of Sections 2.02 — 2.06 had been complied with.* * * * * *"We cannot agree that these distinctions relieve the Commissioner from complying with the mandatory provision of Section 11.11(4) of Article 852a, which specifically requires that when his findings of fact are in statutory language, they `shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.' This part of the Act is not conditioned on whether the findings were contested on the merits, whether lack of substantial evidence was urged, or whether or not Petitioners alleged that they were harmed by the Commissioner's failure to comply with the law.
"This is a case of statutory construction in which the plain meaning and requirement of the statute are obvious. The legislature has delegated to the Commissioner the authority to grant a charter application, and the Commissioner may exercise such delegated authority only in the manner prescribed by the legislature.
"The Court of Civil Appeals said `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.' This may be true. However, appellants and the court are not the only ones concerned with the Commissioner's order and his failure to follow the procedure required by law. The public has an interest in the administrative decisions of State agencies, especially where they concern the public need for savings and loan agencies. We assume that the public also has a general interest in the laws of the State being followed as they are written."
It makes no difference that the Commissioner in Bay City violated a statute and in this case an agency rule since a rule or order promulgated by an administrative agency acting within its delegated authority has the same force and effect as if it were the act of the legislature. Texarkana Ft. S. Ry. Co. v. Houston Gas Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932).
It occurs to me that the meaning and requirements of the rule in this case are quite as obvious as those of the statute in Bay City, and that the reasoning in that case compells the conclusion that the Commissioner may exercise the authority granted by the rules pertaining to the granting of a charter application only in the manner therein provided.
In Bay City the petitioners could demonstrate no harm by the failure of the Commissioner to set out underlying facts supporting a finding that was not in fact contested. Nevertheless, the Supreme Court held that the Commissioner's violation of the statute, without regard to harm, vitiated the entire order. That court said, 'However, appellants and the court are not the only ones concerned with the Commissioner's order and his failure to follow the procedure required by law. The public has an interest in the administrative decisions of State agencies, especially where they concern the public need for savings and loan agencies. We assume that the public also has a general interest in the laws of the State being followed as they are written.' (emphasis supplied).
I would affirm the judgment of the trial court. *Page 949