concurring.
I agree that the judgment of the trial Court should be reversed, and believe that judgment should be rendered that the Ap-pellees take nothing. However, I believe that a real estate agent in a transaction such as the one before us is covered by the Deceptive Trade Practice Act. The Plaintiffs were certainly consumers of both goods and services. The fact that they bought the “goods” from the real estate owners and did not directly pay the real estate agent for his services should not matter. The Act does not define who a consumer can sue, but merely says anyone is a consumer who seeks or acquires by purchase or lease any goods or services. Tex. Bus. & Comm.Code Ann. Section 17.45(4). A liberal construction is mandated to protect the consumer. Section 17.44. Even if the Appellees discovered the home through a multiple listing service and did not retain Appellant in any way to represent them in the sale of the home and did not pay for the Appellant’s services, they can still maintain the action against the seller’s agent if that agent was otherwise culpable under the Act. Section 17.45(2) includes “services furnished in connection with the sale or repair of goods.” The real estate agent is too closely connected with the sale, and I would overrule the Appellant’s first two points.
It was the Appellees’ position that the Appellant owed them a separate duty by virtue of the Texas Real Estate License Act. Article 6573a, Tex.Rev.Civ.Stat.Ann. While Appellees fail to point out to what part of the statute they are referring, the statute does provide that the Texas Real Estate Commission may revoke a real estate license when it has been determined under Section 15(4)(A) that the licensee has made a material misrepresentation or has failed to disclose to a potential purchaser any latent structural defect “or any other defect known to the broker or salesman. Latent structural defects and other defects do not refer to trivial or insignificant defects but refer to those defects that would be a significant factor to a reasonable and prudent purchaser in making a decision to purchase; . . .” This subsection relates to failure to disclose known defects. Also of significance to the present case is paragraph (4)(W) of Section 15 which condemns one “acting negligently or incompetently in performing an act for which a person is required to hold a real estate license.”
The trial Court apparently had in mind these two subsections since it charged the jury on the meaning of negligence by the standard definition, and further charged the jury as follows:
You are hereby instructed that a real estate broker has a duty to disclose to a protective purchaser any known defects in property listed with him for sale and that he further is prohibited by law from acting negligently or incompetently in performing an act for which a person is required to hold a real estate license.
By special Issue No. 6, the jury determined that Delaney Realty, Inc. “knew or should have known that said home sold to *802the Ozunas in 1977 was so subject to flooding.” By special Issue No. 7, the jury found that the failure of Delaney Realty, Inc. to so notify the Ozunas of such flooding was a deceptive act or practice of Delaney Realty, Inc.
By various points, the Appellant makes the complaint that there was no evidence to show that the Appellant knew that the home was subject to flooding, and to this extent I would sustain that contention. This would leave the Appellees in the position of having proved only that the Appellant should have known that the house sold was so subject to flooding. This case would then present somewhat the similar problem as was before the Dallas Court of Civil Appeals in Singleton v. Pennington, 568 S.W.2d 367 (Tex.Civ.App.—Dallas 1978, writ filed). That Court was faced with the question whether the Deceptive Trade Practices Act imposed liability for an innocent representation made by the defendant when he stated that a boat and motor which he had earlier purchased was in excellent condition. The statement was false because the gear housing of the motor had been cracked and improperly repaired. The defendant did not know that the statement was false, and did not make the statement recklessly because he had not experienced any difficulty with the motor after it had been repaired. There, the Court, among other things, compared the general provision of Section 17.46(a) with the specific provisions of the “laundry list” contained in Section 17.46(b) and concluded, among other things, that all of Section 17.46 excluded from the penalties of the Act any “false, misleading or deceptive” statements concerning the need for repair service unless such statements were made knowingly. The Court in effect held that since the specific misrepresentation of the defendant made without knowledge of its falsity would not violate Section 17.46(b)(13) of the Act, then the element of intent could not be avoided by resort to the general prohibition of Section 17.46(a). See: Bragg, Maxwell & Longley, Texas Consumer Litigation Sec. 2.11, discussion at 52 (1978).
I would apply the same reasoning to the use of the Real Estate License Act which has been resorted to here as a means of coming within the general prohibition of Section 17.46(a) of the Deceptive Trade Practices Act. Since Section 15(4)(A) of the Real Estate License Act specifically condemns the failure to disclose to a potential purchaser defects that are known to the broker or salesman, the requirement that the defect be known cannot be avoided, in a failure to disclose situation, by resort to the general prohibition of Section 15(4)(W), which generally condemns the broker or salesman from acting negligently or incompetently in performing an act for which a person is required to hold a real estate license. In other words, I would hold that it was the intent of the Legislature that the plaintiff be required to prove an intentional or known deception where a failure to disclose is the complaint. Since there was no proof that the defect regarding flooding was known, I would hold that the alleged violation of the Real Estate License Act could not be resorted to in an effort to sustain a violation of Section 17.46(a) of the Deceptive Trade Practices Act. The problem presented is in regard to the Act as it existed before the Legislative amendments of 1979.
For the reasons stated, I would reverse the judgment of the trial Court and render judgment here for the Appellant.