dissenting.
I am persuaded by appellant’s motion for rehearing that, in our original opinion, we overlooked a material, uncontroverted, and determinative fact: appellant’s specific representations about the de-misters were in response to inaccurate specifications provided by appellee.
The majority opinion on rehearing continues to hold that, by the representations in its March 12, 1991 fax, appellant made specific material misrepresentations that were actionable under the DTPA. I disagree.
Appellee was in the business of designing and installing custom cooling systems. Appellee purchased from appellant a $50,000 component part to be installed in the $300,000 custom cooling system appel-lee was assembling for its customer in California. It is uncontroverted that ap-pellee decided to purchase the T-130 component part from appellant based on appellant’s response to appellee’s March 11, 1991 faxed inquiry, which reads:
Attached is a new arrangement for the placement of the de-misters. Since the former arrangement is so limited we have chosen to move the system into the duct work. Please review and respond as to the pressure drop and if we will have a problem with turbulence.
The attachment is a diagram showing the placement of the de-misters in the duct work, and specifying that air velocity through the de-misters would be 1,082 feet per minute (about 12 miles per hour).
In response, by a March 12, 1991 fax message, appellant replied:
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*303Engineering has given their approval of the idea of using the bottom portion of the module as a drain box for the application. We now offer the modules with a closed bottom, fitted with drain couplings — suitable for stacking one on another. I have re-sized the modules to put the 9" previously elevated to the drain box into module face area to reduce DP....
We confirm that carry over from Plas-dek will be significant at 870 — 900 feet per minute but droplets will be coarse. A T-130 is an appropriate collector.
I want to be sure that you have considered any possible reduction in performance due to the high velocity through the Plasdek and strategies for keeping the water in the media. If I can help please let me know.
I hope that this helps. I feel a lot better about the velocity and the [mist eliminator pressure drop] is more in line with what you wanted. Let me know how I can help.
When appellee installed the de-mister provided by appellant into the custom cooling system and then tested the system, it was discovered that air velocities around the de-misters were as high as 6000 feet per minute (about 68 miles per hour) rather than the 1082 feet per minute (about 12 miles per hour) that had been specified by appellee. Because de-misters do not operate at such high air velocities, they were ineffective and the custom cooling system built by appellee therefore did not meet the performance requirements of its customer.
The majority opinion holds that appellant’s March 12 “revised mist elimination proposal” constituted a misrepresentation of a material fact, even though there was no evidence of how the custom cooling system would have performed if appellee’s March 11 specifications had been correct. If the air velocity around the de-misters would have been about 12 m.p.h. rather than 68 m.p.h., the de-misters may well have operated as appellant represented they would.
The March 12 proposal from appellant, responding to misinformation from appel-lee, was not shown to be a “false, misleading, or deceptive act” by appellant. Accordingly, I would sustain appellant’s first issue.1
We should reverse and render judgment for appellant.
. I agree with the majority opinion that the general statements in appellant’s sales literature did not constitute actionable misrepresentations under the DTPA. In its brief ap-pellee acknowledges: "The sales literature itself is not the core of the DTPA violation.... The statements in the sales literature simply provide the context and background circumstances that must be taken into account when one reads the misrepresentations in the March 12 fax.”