dissenting.
I agree with the majority opinion to the extent that the Federal Deposit Insurance Corporation (FDIC) has the right to intervene in this case on appeal. However, I dissent from the majority's determination that the FDIC, as post-judgment inter-venor, can assert federal defenses unique to its federal status. The majority primarily relies on recent case law, which over-broadly interprets the relevant federal statute while summarily dismissing prece-dential federal and state case law as well as the well-established principles of federalism, comity, and due process.
The FDIC, as a post-judgment inter-venor, asserts on appeal not only state law grounds raised by First Consolidated Bank — Pleasant Run — N.A. (FCB), but also federal common law defenses available only to it, such as the rule of estoppel announced in D’Oench Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942), and codified in section 1821(e) of Title 12 of the United States Code. To support its position, the FDIC relies solely upon FSLIC v. Stone, 787 S.W.2d 475 (Tex.App.—Dallas 1990, writ pending). In Stone, a panel of this Court held that section 1821(d)(13) of Title 12 of the United States Code, as amended by the provisions of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIR-REA), Pub.L. No. 101-73, § 212, 103 Stat. 183, 222 (1989), provides that the FSLIC1 can assert all federal defenses available to it on appeal, even if it becomes the receiver for a defendant banking institution after a trial court judgment has been rendered. Stone, 787 S.W.2d at 483. This reasoning is faulty.
Stone bases its entire conclusion on sub-part A of section 1821(d)(13), which provides:
(d)(13) Additional Rights and Duties
(A) Prior Final Adjudication — The [FDIC] shall abide any final unappeala-ble judgment of any court of competent jurisdiction which was rendered before the appointment of the [FDIC] as conservator or receiver.
12 U.S.C. § 1821(d)(13)(A) (1989) (emphasis added). Looking through subpart A, Stone *241then claims that subpart B of section 1821(d)(13) of Title 12 of the United States Code means that the FSLIC has both standing to pursue all appeals and the authority to exercise all the “rights and remedies” available to the failed institution as well as the FSLIC in its corporate capacity regardless of an existing, errorless judgment from the trial court. Stone, 787 S.W.2d at 484. I disagree with Stone’s interpretation of section 1821(d)(13). Subpart A of section 1821(d)(13) is not capable of sustaining as broad an interpretation of FIRREA as Stone contends and, not surprisingly, Stone cites no authority for its interpretation of section 1821(d)(13). What does surprise me is that, despite a lack of supporting authority, Stone runs headlong to a conclusion contrary to established case law, both state and federal. What is that law? D’Oench defenses cannot be asserted after a state court renders a final judgment. Thurman v. FDIC, 889 F.2d 1441, 1447 (5th Cir.1989); Olney Sav. & Loan Ass’n v. Trinity Banc Sav. Ass’n, 885 F.2d 266, 275 (5th Cir.1989); Grubb v. FDIC, 868 F.2d 1151, 1159 (10th Cir.1989); Federal Sav. & Loan Ass’n v. Kennedy, 732 S.W.2d 1, 3 (Tex.App.—Houston [1st Dist.] 1986, writ ref d n.r.e.). Stone stretches beyond reason to distinguish these cases. I fail to see how subpart A, a truism that the FDIC must obey a final unappealable judgment, can support such a sweeping generalization as the one Stone makes that a post-judgment intervenor can raise its special defenses for the first time on appeal. At most, subpart A can be said to protect the few remaining assets of a failed banking institution from execution during the appeal of a final judgment against that institution without the FDIC having to post a supersedeas bond. See 12 U.S.C. § 1821(d)(13) (1989); Tex.R.App.P. 47(a).
The two cases Stone distinguishes as being decided prior to the enactment of FIRREA held that the FSLIC was precluded from raising D’Oench defenses to eviscerate a valid state court judgment rendered before the receivership. Grubb, 868 F.2d at 1159; Kennedy, 732 S.W.2d at 2. The Grubb decision reasoned that a judgment voiding an asset left no asset for the receiver to acquire and that knowledge of the judgment prevented the FDIC from being misled. Grubb, 868 F.2d at 1158-59. Stone asserts that the Grubb court ignored the fact that an appealable judgment might be reversed, and economic value remains in the asset itself. Stone, 787 S.W.2d at 483-84. However, a more correct statement would be that, if an appealable judgment is reversed, then economic value of the asset returns. Another failure of Stone is that it claims that the Grubb court did not consider the Supreme Court’s holding in Langley that rejected knowledge of the FDIC as a defense to D’Oench. Stone, 787 S.W.2d at 483-84. However, Grubb involved a final judgment, where Langley involved only a pending lawsuit. Compare Langley, 108 U.S. at 400 with Grubb, 868 F.2d at 1158-59. Certainly this is a distinction of not insignificant moment. Stone makes no direct attack on Kennedy, but merely notes that Kennedy was decided prior to the enactment of FIRREA and that FSLIC, as a receiver, was more analogous to a trustee in bankruptcy who not only steps into the shoes of the failed institution, but also possesses additional rights under federal law. Stone, 787 S.W.2d at 482. What the Kennedy court held was that the FSLIC “simply stepped into the shoes” of the failed institution, having the same but no greater rights than the failed institution to challenge the trial court’s final judgment. See Kennedy, 732 S.W.2d at 3. Throughout its attack on Grubb and Kennedy, Stone wholely fails to explain by what avenue a judgment is reversed where there is no error.
In forcing its conclusion, Stone also challenges post-FIRREA authority. Olney holds that the provisions of FIRREA which provided the FSLIC, as conservator, with all “rights and remedies” available to the insured depository institution before appointment of a conservator, did not empower the FSLIC with the right to raise its unique federal defenses for the first time on appeal after entry of final judgment to which it was not a party. Olney, 885 F.2d at 275. The court specifically addressed *242and interpreted the provisions of FIRREA as follows:
FSLIC argues that this new provision allows conservators to raise § 1823(e) on appeal for the first time, after the entry of a final judgment to which they were not a party. We read the same section, and find that it means that conservators and receivers are given standing to pursue all appeals, where before its enactment only FDIC acting in its corporate capacity could pursue certain claims. This section gives FSLIC no new substantive rights in this appeal.
Olney, 885 F.2d at 275 (emphasis added). To reach its unique result, the Stone panel ignores the weight of Olney for two reasons. First, Stone claims the language of section 1812(d)(13) concerning “rights and remedies” speaks to more than just standing, as postulated by the Olney court. Stone, 787 S.W.2d at 484. Second, Stone asserts that the Olney court’s interpretation is not governing because it incorrectly interpreted FIRREA too narrowly. Both of these distinctions grasp for straws. As recently as November 29, 1989, the Fifth Circuit Court of Appeals confirmed its interpretation of FIRREA by again holding that the FSLIC was precluded from asserting any federal defenses unique to its federal status as a post-judgment intervenor. Thurman v. FDIC, 889 F.2d at 1447. In Thurman, the court added that such an approach creates a disincentive by the FSLIC to gamble on a verdict while holding a D’Oench defenses’ trump card. Thurman, 889 F.2d at 1447. The court reasoned that the weighing of interests did no violence to the policies behind D’Oench. The parties to the suit at trial were the parties to the transaction and the fact remains that, when final judgment was rendered below, five days before the receivership was created, no party to the case could have asserted these defenses. Thurman, 889 F.2d at 1447. Without at all addressing its reasoning, Stone excuses Thurman because it relied on Grubb. Stone, 787 S.W.2d at 485. Stone is simply wrong.
OLNEY AND THURMAN
Both Olney and Thurman correctly interpret FIRREA and should be followed rather than summarily dismissed. Their holdings are obviously consistent with and follow the well-established principles of federalism, comity, and due process, while Stone’s interpretation of section 1821(d)(13) just as obviously ignores these principles. Comity is a proper respect for state functions and is referred to by many as “Our Federalism.” It recognizes the fact that the entire country is made up of a union of separate state governments and a continuance of the belief that the national government will fare best if the states and their institutions are left free to perform their separate functions in their separate ways. The concept represents a system in which there is a sensitivity to the legitimate interests of both state and national governments. Although anxious to vindicate and protect federal rights and federal interests, the national government always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the states. Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Although usually applied to situations where a federal court attempts to interfere with the actions of a state court, Stone’s interpretation of section 1821(d)(13) presents an analogous situation. Stone’s interpretation violates the state appellate court’s role of reviewing judgments for error and orders it to consider the FSLIC’s special defenses raised for the first time on appeal. Under Stone’s application, we find an error free judgment reversed contrary to our state law. See Tex. Const, art. V, § 6; Tex.R.App.P. 80 and 52(a). This directly and unduly interferes with a legitimate activity of the state. See FDIC v. Sellarás, 731 F.Supp. 1300, 1301-02 (N.D. Tex.1990). Federal law pre-empts state law in traditional fields of state regulation only when that was the clear and manifest purpose of Congress. Coit Indep. Jt. Venture v. FSLIC, 489 U.S. 561, 109 S.Ct. 1361, 1377, 103 L.Ed.2d 602 (1989) (Scalia, J., concurring). The Olney court’s interpretation of section 1821(d)(13) neither unduly interferes with a legitimate activity of *243a state nor pre-empts a state law. Both Olney and Thurman clearly hpld that after judgment (and presumably not until that judgment is set aside on proper appellate grounds) the D’Oench defenses of the FDIC are not available. Only Stone reaches the remarkable conclusion that FIRREA demands that an errorless judgment be reversed.
Further, Stone treads where we must not. Assuming that Stone is a reasonable interpretation of this federal statute, a point I do not concede, we are not to place an interpretation upon a statute that creates an unconstitutional application. See State v. Shoppers World, Inc., 380 S.W.2d 107, 111 (Tex.1964) (holding that a statute must not be given the one of two reasonable interpretations which will render it unconstitutional). Moreover, it is our duty as a court to construe statutes in a manner which avoids serious doubt as to their constitutionality. Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 841, 106 S.Ct. 3245, 3251, 92 L.Ed.2d 675 (1986); FSLIC v. Glen Ridge I Condominiums, Ltd., 750 S.W.2d 757, 759 (Tex.1988) (Glen Ridge II). Where such serious doubts arise, a court should determine whether a construction of the statute is fairly possible by which the constitutional question can be avoided. Commodity Futures, 478 U.S. at 841, 106 S.Ct. at 3251, Glen Ridge II, 750 S.W.2d at 759.
Procedural due process requires a fair and impartial trial before a competent tribunal. Included within this requisite is an opportunity to be heard arid a reasonable opportunity for a hearing, which encompasses reasonable notice of the claim or charge against the individual so as to advise him of the nature thereof and the relief sought. In re B_ M_ N_, 570 S.W.2d 493, 502 (Tex.Civ.App.—Texarkana 1978, no writ). The right to a hearing requires judicial examination of every issue that, according to established procedure, may affect attainment of a legal trial, and in such a trial determine the cause according to law. In re B_ M_ N__, 570 S.W.2d at 502.
Due process of law not only includes procedural protection, but also substantive protection. It is a direct constitutional restraint upon the substance of legislation and means that a legislative curtailment of personal or property rights must be justified by a resultant benefit to the public welfare.
In re B_ M_ N_ , 570 S.W.2d at 502.
The Supreme Court stated that under the due process clause “justice must satisfy the appearance of justice” and that, since a creditor’s property is subject to the jurisdiction of the court during an ordinary receivership proceeding, due process protections still must apply. Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954). Although the government is currently a party in the instant case, the substantive rights at issue arose out of transactions conducted between private parties and not out of constitutional or legislative provisions governing the FDIC. The rights upon which F & A Leasing sued are designed to promote honesty and the performance of obligations in assumed guaranty transactions and to assure that property interests of the original guarantor are protected against dishonesty and nonperformance of obligations. Glen Ridge I Condominiums, Ltd. v. Federal Sav. and Loan Ins. Corp., 734 S.W.2d 374, 383 (Tex.App.—Dallas 1986) (Glen Ridge I), writ denied, 750 S.W.2d 757 (Tex.1988), cert. denied, 490 U.S. 1004, 109 S.Ct. 1637, 104 L.Ed.2d 153 (1989).2 This case has been tried. On appeal we find no error in the judgment. Thus, there is no notion in our law permitting us to reverse. Participants in our system expect and rely upon these rights. A nationally uniform federal rule of decision that strips parties of the benefit of judgments which have been rendered for *244their protection by a court and replaces them with federal rules crafted for the benefit of the FDIC as a post-judgment intervenor violates constitutional due process rights in commercial relationships. See Glen Ridge I, 734 S.W.2d at 383. Stone should be set aside.
I respectfully dissent.
. FSLIC was abolished by FIRREA § 401(f)(1), 103 Stat. at 356.
. This Court in Glen Ridge I determined that the FSLIC, as receiver, did not have adjudicatory power over claims as that would be a violation of Article III of the United States Constitution. FSLIC v. Glen Ridge I Condominiums, Ltd., 750 S.W.2d 757, 758-59 (Tex.1988) (Glen Ridge II). Although a majority of the Texas Supreme Court disagreed with the reasoning of the court of appeals, it agreed with the court’s judgment that the district court’s jurisdiction over the investor's claims had not been pre-empted by federal statutes. Glen Ridge II, 750 S.W.2d at 760.