concurring.
I concur in the affirmance of the judgment.
I do not agree, as the majority apparently does, with the district court’s implicit conclusion that the hearing examiner correctly determined the burden of going forward with the evidence in the hearing before the Texas Air Control Board.
American Hoechst Corporation applied to the Board for construction permits for chemical facilities to be located in an industrial complex near Pasadena. Pursuant to authority delegated by the Board, the Executive Director issued the permits.
Within the time allowed by Board Rule 56.1, appellants perfected an intra-agency appeal of the Executive Director’s action to the Board. At a prehearing conference the hearing officer made the complained of rulings pertaining to the burden of going for-, ward with the evidence. Those rulings were:
(1) The admission into the record of the permits issued to the company by the Executive Director, along with the accompanying data would establish “a prima facie case that the permits were validly issued.”
(2) Following the admission of the permits and supporting information, the opponents will have the burden of introducing competent evidence tending to show that the requirements for issuance of the permits were not met; and
(3) The ultimate burden of persuasion on all issues will rest with American Hoechst Corporation.
Under the hearing officer’s ruling, after the permit and supporting data had been introduced, the applicant could rest and the protestants then would have the onerous burden of disproving the self-serving statements usually found in the data submitted with an application for a permit.
*643There is nothing in the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (1976) or the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a (Supp.1978), that authorizes the examiner’s ruling. The general view is contrary to that ruling. In an intra-agency appeal, an order carries no presumption of validity. Bloch v. Glander, 151 Ohio St. 381, 86 N.E.2d 318 (1949); 2 Am.Jur.2d Administrative Law § 548 (1962). Such a presumption obtains only in appeals from administrative agencies to courts.
In an intra-agency appeal to the Board the applicant has the burden of going forward and of proving by competent evidence its case for a permit. The permit and supporting data, without other proof, are not sufficient to support an order of the Board affirming the action of the Executive Director. Stated another way, if the applicant in such an appeal introduced into evidence the permits granted by the Executive Director and the supporting documents and then closed without placing competent evidence in the record in support of every element necessary to obtain the permit, the Board should enter an order for the protestants. These observations are particularly appropriate in this instance inasmuch as the Executive Director entered his order granting the permits without a hearing.
Although the examiner’s ruling as to the burden of going forward with the evidence was incorrect, I agree that appellants have failed to demonstrate that the error resulted in the entry of an improper order.