Dissenting opinion by Justice GRANT.
BEN Z. GRANT, Justice,dissenting.
The majority opinion reflects erroneous statutory construction, and fallacious reasoning, and makes bad precedent.
The majority finds that the failure to have a definite termination date in the listing contract voids the contract. Under common law precedents, the courts may also imply what a reasonable time for performance will be. Berne v. Keith, 361 S.W.2d 592 (Tex.Civ.App.-Houston [1st Dist.] 1962, writ ref'd n.r.e.). The majority has based the voiding of the contract on provisions contained in Tex.Rev.Civ. Stat. Ann. art. 6573a, § 15(a)(6)(G) (Vernon Supp.2000), and 22 Tex. Admin. Code § 535.148 (1999). Both of these provisions require that a definite termination date be included in the listing contract. The source of the Texas Real Estate Commission rule is the statutory rule.
Section 15 of Article 6573a, entitled “The Real Estate License Act,” provides a long list of violations for which real estate brokers or real estate sales people may have their license suspended or revoked. Tex.Rev.Civ. Stat. Ann. art. 6573a, § 15 (Vernon Supp.2000). This is the section in which the provision appears requiring a definite termination date. There is nothing in this section that in any way voids the document. Furthermore, the Commission has a choice of whether to suspend or revoke the license of the person involved, or the Commission can reprimand or place the violating party on probation.
In Section 15(a)(9)(b), the law provides that, “[t]he provisions of this section [referring to Section 15] do not relieve a person from civil liability or from criminal prosecution under this Act or under the laws of this state.” Tex.Rev.Civ. Stat. Ann. art. 6573a, § 15(a)(9)(b). Beyond that, nothing is said about the civil liability for violations of the Act. Thus, a violation of Section 15 does not automatically void a listing contract, but rather subjects the real estate broker or salesperson to sanctions involving his or her real estate license. Nothing in this section indicates otherwise, and no precedent decided by any court indicates otherwise.
The majority opinion seems to rely heavily on Section 535.148 of the Texas Administrative Code. This section covers the provisions of the Real Estate License Act. It is contained in subchapter (n), which is entitled “Suspensions and Revocations of Licensure.” Nothing in this section suggests that it would void a contract; however, just as the Act itself, it subjects a realtor to possible suspension or revocation of license. This provision does not purport to negate all real estate contract listings if the ending-date is not contained in the contract. To so find infers from this Act something it does not imply.
To justify applying this statute in such a manner, the majority opinion cites Henry S. Miller Co. v. Treo Enters., 573 S.W.2d 553, 555 (Tex.Civ.App.-Texarkana 1978), aff'd, 585 S.W.2d 674 (Tex.1979). This case deals with the application of Section 20(a), which in no way involves Section 15, which is applicable to the present case. Tex.Rev.Civ. Stat. Ann. art. 6573a, § 20(a) (Vernon Supp.2000). Section 20(a) provides that
A person may not bring or maintain an action for the collection of compensation for the performance in this state of an act set forth in Section % of this Act without alleging and proving that the *83person performing the brokerage services was a duly licensed real estate broker or salesperson at the time the alleged services were commenced, or was a duly licensed attorney at law in this state or in any other state.
Tex.Rev.Civ. Stat. Ann. art. 6573a, § 20(a) (Emphasis added.). Section 2 deals with the definition of who is a real estate broker or real estate salesperson. Tex.Rev.Civ. Stat. Ann. art. 6573a, § 2 (Vernon Supp. 2000). Thus, this is a totally separate part of the Real Estate Act and does not touch top-side-or-bottom the applicable provision in this case.
The majority opinion also relies on the case of Boyert v. Tauber, 834 S.W.2d 60 (Tex.1992). That case involves Article 6573a, § 20(b). Tex.Rev.Civ. Stat. Ann. art. 6573a, § 20(b) (Vernon Supp.2000). That case involved failure to fulfill the statutory writing requirement for a listing agreement. The law states specifically that
An action may not be brought in a court in this state for the recovery of a commission for the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by the party to sign it.
Tex.Rev.Civ. Stat. Ann. art. 6573a, § 20(b). Again, this case is not precedent for the case involving Section 15 of the Act, and the prohibition against bringing suit for Section 20(b) specifically spells out the writing requirement and does not include any violation existing in the present case. It is not proper precedent.
The majority also relies on Trammel Crow Co. v. Harkinson, 944 S.W.2d 631, 636 (Tex.1997). Again, that case involved the absence of a written agreement under Section 20(b). Thus, it is not an appropriate precedent for the present case.
This leaves the majority without any case precedent or law to support its newly established law that a violation of Section 15, by not having a specific termination date in the contract, would void the contract. There is no statutory fiat to make it unenforceable, but only a statutory provision to give authority to the board to suspend or revoke the license of a violating broker or real estate salesperson.
No directed verdict should have been granted on that basis. Therefore, I respectfully dissent.