(dissenting).
The majority states the question to be decided: “Did the proof show that Bacor, Inc. became indebted to bank in the amount of $180,000 by proof of the making of the three notes set out above?” The facts in the majority opinion will not be repeated here.
The pertinent part of Article 342-507, V.A.C.S., upon which the conviction is based, provides:
“No state bank shall permit any person or any corporation to become indebted or in any other way liable to it in an amount in excess of twenty-five per cent (25%) of its capital and certified surplus. The phrase ‘indebted or in any other way liable’ shall be construed to include liability as partner or otherwise. The above limitation shall not apply to the following classes of indebtedness or liability:
“Any officer, director or employee of a state bank who knowingly violates or participates in the violation of any provision of this Article shall upon conviction be fined not more than Five Thousand Dollars ($5,000) or confined in the State penitentiary not more than five (5) years, or both.”
National banks are restricted by a statute similar to Article 342-507, supra. 12 *129U.S.C.A., Section 84.1 In Hughes v. Reed, 46 F.2d 435 (10th Cir. 1931), the court held:
“The statute [12 U.S.C.A., Sec. 84] prohibits such loans to any person, and if an excess loan is in fact made to B, it does not avail that it is represented by notes signed by B’s wife or .his corporation. But the statute does not prohibit 10 per cent, loans to different persons or different corporations, if they be in fact separate loans, notwithstanding the borrowers may be related or affiliated. It may not be good business, or even a violation of the common-law duty, to lend too much money to persons or businesses which are affiliated but separate, but it does not fall within the statutory ban. But the proof that the loans are in fact excess loans to one borrower often must be found in circumstances, and latitude must be allowed in adducing such proof. Corsicana National Bank v. Johnson, 251 U.S. 68, 40 S.Ct. 82, 64 L.Ed. 141.”
And, in First National Bank of Lincoln-wood v. Keller, 318 F.Supp. 339 (U.S.D.C. N.D.I11.), the district court, citing Hughes, supra, held:
“However, it is established in the case law that if a loan, made in the name of an employee or shareholder of the corporation, is treated in substance as a loan to the corporation then it may be combined with other loans to the corporation.”
By limiting the liability of any one borrower to an amount not in excess of 25% of the bank’s capital and certified surplus, a bank will be protected from speculative loans, which could, upon a failure of the venture, endanger the bank’s financial status. The uncontroverted testimony in this case was that the three separate notes were executed for only one purpose — to obtain $180,000 for Bacor, Inc. so it could purchase the option on the desired property. I construe Article 342-507, supra, to apply in this situation where an excessive loan was in fact made to one borrower. The evidence was sufficient to support a finding that a loan in excess of the legal limit was made under the statute.
Appellant further contends that the trial court erroneously attempted to cure this variance by charging on the law of agency. The charge to the jury reads, in part, as follows:
“Now, therefore, if from the evidence you believe beyond a reasonable doubt that . . . the said W. L. Bates and Dan Bates were agents of Bacor, Inc. and acting for such corporation with the intention of obtaining the proceeds of said loans for the benefit of such corporation, then it will be your duty, during your deliberations on the question of whether and to what extent, if any, Ba-cor, Inc. became indebted to said bank, to treat such loans as being made to Ba-cor, Inc. to the same extent as if such loans had been made directly to Bacor, Inc.”
Corporations can act only through their agents. 2 Tex.Jur.2d, Agency, Section 52, page 495; 14 Tex.Jur.2d, Corporations, Section 322, page 421. The testimony of W. L. Bates, as president and stockholder of Bacor, Inc., and Dan Bates, as a director of Bacor, Inc., reflected that they were in fact borrowing this money in order that Bacor, Inc. could purchase the desired options. I would, therefore, hold that the court’s charge to the jury on the law of agency was proper.
In appellant’s second ground of error, he complains that the State failed to prove that the appellant “caused” this loan to be made and that the court erred in its charge by not requiring the jury to make such a finding. The indictment charged that the appellant “did . . . knowingly partici*130pate in said act of such bank by approving said loan and causing same to be made .” (Emphasis added). The appellant further alleges that proof of either allegation would have been sufficient; but, since the indictment charged both, the State was required to prove both.
Article 342-507, supra, provides for the punishment of “[a]ny officer, director or employee of a state bank who knowingly violates or participates in the violation of any provision of this Article. . . . ” The indictment charged that the appellant “did unlawfully, wilfully and knowingly participate in said act of such bank by approving said loan and causing same to be made ... .” (Emphasis added). The court’s charge read: “[D]id then and there unlawfully, wilfully and knowingly participate in the making of said loan by approving same . . . .” (Emphasis added).
Approving the loan and causing the loan to be made are merely different means by which participation in the unlawful transaction can be shown. Steambarge v. State, 440 S.W.2d 68 (Tex.Cr.App.1969).
The very purpose of the statute was violated by subterfuge with a company in which appellant owned an interest. In reviewing the totality of the circumstances, the evidence is sufficient to support the conviction.
There is no Texas case directly in point. The reasoning in the federal cases cited above is sound and should be followed; otherwise the statute will have little or no effect.
For the above reasons, the judgment should be affirmed.
. 12 U.S.C.A., Section 84, creates no criminal liability for a violation of the statute; how-ever, a violation can result in a forfeiture of the franchise. 12 U.S.C.A., Section 93.