dissenting.
In its motion for rehearing, the Board has called our attention to our supreme court’s decision in Firemen’s and Policemen’s Civil Service Commission v. Hamman, 404 S.W.2d 308 (Tex.1966), which held that no violation of due process existed where, of three members of the commission ordering an officer’s suspension, one had participated in the investigation of the acts upon which the suspension was based. Thus, the supreme court found no violation of due process where a member of the commission performed both investigatory and adjudicatory functions in an administrative proceeding-a more compelling situation for invoking due process than the situation here, since the members who performed investigatory functions disqualified themselves as adjudicators. Consequently, in my view, the majority’s holding that the fact situation here is a per se violation of due process merely because two members of the Board testified against appellant is in direct conflict with the opinion of the supreme court in Ham-man. As the supreme court stated in Ham-man :
We further hold that Hamman was not denied procedural due process of law in *254the fact that one of the three members of the Commission participated in the investigation of the acts supporting the six-months suspension ordered by the Commission. It is argued by Hamman that participation of a Commission member in both the investigatory and decisional phases of an administrative proceeding is a disqualifying fact and imposes a taint of illegality upon the proceeding which, in turn, destroys the presumption of validity of the order of the Commission. Stated otherwise, that since the order here will be upheld by the courts in a substantial evidence trial if it has support in the evidence, regardless of the existence of contrary evidence, Hamman has not under such circumstances been afforded procedural due process of law.
In recently denying the application for writ of error in Texas State Board of Dental Examiners v. Fieldsmith, Tex.Civ.App., 386 S.W.2d 305 (writ ref. n. r. e. 1965), an appeal governed by the substantial evidence rule, we considered the problem of a statutory combination of investigatory and adjudicatory functions in an administrative agency. There an order of the Board of Dental Examiners revoking a license to practice dentistry was assailed as invalid because of denial of due process in the fact that a member of the Board who participated in the investigation which resulted in the filing of the complaint also participated in the hearing and in the vote to revoke the license. We were in agreement with the holding of the Court of Civil Appeals that there was not a denial of procedural due process of law under the circumstances there shown. The Court emphasized the statutory duties of the Board, including those of investigation, in administering the statutes regulating the practice of dentistry and the fact that the statute does not disqualify a Board member who aids in an investigation. The circumstances here are analogous. See also Farb v. State Banking Board, Tex.Civ.App., 343 S.W.2d 508 (writ ref. 1961); cf. Pangburn v. CAB, 311 F.2d 349 (1st Cir. 1962); Belizaro v. Zimmerman, 200 F.2d 282 (3rd Cir. 1952); Levers v. Berkshire, 159 F.2d 689 (10th Cir. 1947); Brinkley v. Hassig, 83 F.2d 351 (10th Cir. 1936).
we hold that there has been no denial here. 404 S.W.2d at 312.
The majority opinion on motion for rehearing attempts to distinguish Hamman on the ground that since neither the opinion of the supreme court nor the opinion of the court of civil appeals in Hamman states what the testimony of the commission member was, the supreme court did not regard the testimony of the commission member crucial to the commission’s decision. In my view, this is a distinction without a difference and is not a basis to refuse to follow supreme court authority. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex.1964).
Although the supreme court in Hamman recognized that there may be some circumstances under which the combination of investigatory and adjudicatory functions would be a denial of due process, it also indicated that at least some evidence must exist in the record to show that the adjudicators (here the non-testifying Board members) were not impartial but rather biased and partisan. 404 S.W.2d at 312. In our case no such evidence exists.
I agree with the Board’s contention on rehearing that if the majority’s opinion stands, the due process issue could be raised where the Board or an agency merely uses its own employees to conduct investigations and later testify before it. This is true because a “risk of bias” could also exist with the Board’s employees who of necessity must work closely and confidentially with the Board. Thus, the logical extension of the majority’s “risk of bias” reasoning could severely curtail state agencies in the performance of their statutory duties and thus frustrate public policy as enunciated by the legislature. Accordingly, I would grant the motion.