OPINION ON MOTION FOR REHEARING
Appellee has filed a motion for rehearing assigning ten points of error.
Pursuant to Tex.R.Civ.P. 455, appellee also requests that we make and file supplemental findings upon evidentiary matters, that is, “why the evidence is so weak that the jury finding to Special Issue 5 should be set aside.”
Rule 455 does not require that we make evidentiary findings or repeat the evidence of the trial court record. City of Beaumont v. Graham, 441 S.W.2d 829 (Tex. 1969); Moore v. Copeland, 478 S.W.2d 573 (Tex.Civ.App. — Corpus Christi 1972, writ ref’d. n.r.e.).
Appellee’s motion for rehearing incorrectly construes our original opinion as “holding that a representation must be a misrepresentation at the time it was made in order to show an unconscionable action under Section 17.45(5) of the DTPA.” We did not so hold.
We did hold that the appellant’s failure to perform acts which a city ordinance did not allow appellant to do cannot be unconscionable conduct. The evidence established that the acts appellant failed to perform could not have been accomplished without violating the city ordinance. Indeed, the city’s complicity in violating its own ordinance would have been necessary before the appellant could have performed the acts of obtaining a city permit and inspection of the air conditioning unit’s installation.
Unconscionability therefore would not have been in the appellant’s failure to do that which it was not legally permitted to do. Unconscionability, if it existed, would have been in the representation that acts it could not legally perform, would be accomplished.
Our original opinion observes that the jury was not asked to find whether there was a misrepresentation that was unconscionable. Appellee incorrectly equates that observation to a holding that the DTPA requires proof of intent to deceive. Such proof is not required by the DTPA, nor did we hold that it is required.
Special issue 5 asked only if appellant’s failure to obtain a city permit and inspection was unconscionable conduct.
We held that there is no actionable conduct under the DTPA in failing to do that which was legally impossible. There may be actionable conduct in misrepresenting that the impossible will be done, although the jury in this case was not asked to make that determination.
Appellee contends that the instant case is controlled by Smith v. Baldwin, 611 S.W.2d 611 (Tex.1980), because the DTPA violations there included a building contractor’s failure to obtain a Veteran’s Administration inspection and approval as required by his contract. Smith is distinguishable, however, since the acts which the defendant in that case failed to perform were not shown to have been beyond his power to accomplish lawfully.
Appellee’s motion for rehearing is overruled.