I respectfully dissent.
In Lewis v. Heritage Savings Association, 502 S.W.2d 943 (Tex.Civ.App. 1973, no writ), this Court held that the failure of the Commissioner to follow Section 1.9 of the Rules and Regulations was not reversible error where no prejudice could be shown. I would follow the reasoning of that decision.
A reversal of the Heritage holding is not compelled by the holding of the Supreme Court in Bay City Federal Savings and Loan Association v. Lewis, 474 S.W.2d 459 (Tex. 1971). A majority of this Court did not believe Bay City was controlling when Heritage was decided, and I do not believe so today. The most obvious distinction is that Bay City involved the failure to follow a statute, while today we are concerned with a Commission-created rule.
Additionally, in Bay City the Supreme Court pointed out the several vital purposes served by strict enforcement of the statute requiring incorporation of Commission fact finding within its order. Such a recital prevents the Commission from granting a certificate without a full consideration of the evidence and a serious appraisal of the facts. It informs the parties of the facts found so that they may intelligently prepare and present an appeal to the courts. A third purpose is to assist the courts in exercising their function of reviewing the order. Miller v. Railroad Commission, 363 S.W.2d 244 (Tex. 1962).
It is difficult for me to preceive how the reasoning of Bay City and Miller is applicable here.
The weight of authority in this country is in accord with our decision in Heritage. Village of Port Chester v. Industrial Commissioner, 32 Misc.2d 64, 222 N.Y.S.2d 779 (1961); Muskego-Norway Consolidated Schools Joint School District v. Wisconsin Employment Relations Board, 32 Wis.2d 478,151 N.W.2d 84 (1967); Koehn v. State Board of Equalization,166 Cal.App.2d 109, 333 P.2d 125 (1958). These cases hold that statutes requiring issuance of an order within a certain period of time are directory and not mandatory, and that the expiration of the time within which an agency is to issue an order does not oust the agency of jurisdiction. In order to raise the question of jurisdiction, the nature of the act to be performed or the language used by the Legislature must show that the time designation was intended as a limitation of the power of the administrative agency. To allow an administrative body to oust itself of jurisdiction of subject matter lawfully delegated to it by a failure to follow its own procedural rule would be most unusual.
In the case at hand, did the Commissioner lose jurisdiction on the forty-sixth day following the conclusion of the hearing by failure to comply with his own rule? If not, why should his order be reversed where no harm to the complaining party has been claimed or shown? Must we send these weary litigants back to the Commission to begin another exhausting and expensive series *Page 433 of hearings and appeals solely because of a harmless, procedural error of the Commissioner? I think not.
I think the Legislature addressed itself to the question before us when it promulgated the new Administrative Procedure Act. This Act, to take effect January 1, 1976, provides in Section 19(e), Judicial Review of Contested Cases: ". . . the court . . . shall reverse or remand the case for further proceedings if Substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (3) made upon unlawful procedure . . ." (Emphasis added) It seems clear to me that under the new Act, a party appealing an administrative decision on the basis that the decision was rendered late will bear the burden of showing "substantial rights have been prejudiced . . ."
Because the majority has not passed on the three remaining points of error, it would serve no useful purpose for me to comment on those points at this time.
I would follow the rule of this Court in Heritage on the point in question.