



Delgado - final                                                     



IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 



NO. 3-91-367-CV



RAILROAD COMMISSION OF TEXAS, KENT HANCE, JAMES NUGENT, 
AND JOHN SHARP, ITS COMMISSIONERS, AGGREGATE HAULERS, INC., 
SHAR TRUCKING, INC., TARMAC TRANSPORTATION, INC., 
AND TRANSIT CONTROL SERVICES, INC., d/b/a
T. C. S.,

	APPELLANTS

vs.



ROBERT DELGADO CONSTRUCTION COMPANY,

	APPELLEE


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 475,868, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

 


	The district court of Travis County vacated a final order of the Railroad
Commission of Texas ("the Commission") and remanded the cause to the Commission for further
proceedings on the existing record.  We hold that the district court applied the incorrect scope of
review.  Therefore, we will reverse the judgment of the district court and render judgment
affirming the decision of the Commission.


BACKGROUND
	Robert Delgado Construction Company ("Delgado") applied to the Commission for
a special use motor carrier certificate to transport sand, gravel, rock, asphalt, dirt, and similar
materials in and around the Dallas-Fort Worth area.  Four existing carriers ("the protestants")
opposed the application.  Following public notice and an administrative hearing, the Commission
issued a final order denying Delgado's application.  Delgado timely filed a motion for rehearing
with the Commission, which was denied.  Delgado then brought an action for judicial review of
the final order of the Commission in the district court of Travis County, under section 19 of the
Administrative Procedure and Texas Register Act ("APTRA"), Tex. Rev. Civ. Stat. Ann. art.
6252-13a, § 19 (West Supp. 1992), and as authorized by section 20 of the Motor Carrier Act,
Tex. Rev. Civ. Stat. Ann. art. 911b, § 20 (West 1964).  The district court found that the
protestants had "failed to sustain their burden of proof under § 4(e) of the Motor Carrier Act,"
reversed the decision of the Commission, and remanded the cause to the Commission for
reconsideration on the existing record.  The Commission and the protestants appeal the judgment
of the district court.
	The Commission and the protestants bring two points of error on appeal.  They
argue that the district court erred by holding that the protestants failed to sustain their burden of
proof under section 4(e) of the Motor Carrier Act and by directing the Commission to reconsider
the matter on the existing record.


SCOPE OF REVIEW 
	The district court stated in its order that "[t]he evidence of record shows that the
protestants to the involved application failed to sustain their burden of proof under Section 4(e)
of the Motor Carrier Act; therefore, the Commission violated the terms of the Motor Carrier Act
by concluding that the protestant carriers proved their adequacy and by denying the involved
application."  This language indicates that the district court reviewed the sufficiency of the
evidence supporting the conclusions of the Commission under a "burden of proof" scope of
review.  The proper scope of review is the substantial evidence test.  Under section 19(e)(5) of
APTRA, the scope of review includes an inquiry whether the agency's findings, inferences,
conclusions, and decisions are reasonably supported by substantial evidence in the record as a
whole.  Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452
(Tex. 1984); Tex. Rev. Civ. Stat. Ann. art. 6252-13a, § 19(e) (West Supp. 1992).


SUBSTANTIAL EVIDENCE
	This Court has extensively discussed the substantial evidence test in Lone Star Salt
Water Disposal Co. v. Railroad Commission of Texas, 800 S.W.2d 924, 928 (Tex.App.--Austin
1990, no writ):


	To determine whether an agency's decision is supported by
substantial evidence, as APTRA § 19(e)(5) requires, we must determine whether,
in considering the record upon which the decision is based, the evidence as a whole
is such that reasonable minds could have reached the conclusion which the
Commission must have reached in order to justify its action.  Texas State Bd. of
Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied,
490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 662 (1989); Texas Health Facilities
Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 453 (Tex. 1984).  In
determining whether there is substantial evidence to support the order, the
reviewing court may not substitute its judgment for the Commission's, and must
consider only the record upon which the decision is based.  Sizemore, 759 S.W.2d
at 116.  The evidence in the agency record may actually preponderate against the
Commission's decision, but still amount to substantial evidence supporting it. 
Charter Medical, 665 S.W.2d at 452.  The burden is on the complaining party to
demonstrate an absence of substantial evidence.  Id. at 453.

	Final orders of the Commission are presumed to be valid.  Imperial
Am. Resources Fund, Inc. v.  R.R. Comm'n of Texas, 557 S.W.2d 280, 284 (Tex.
1977).  Where the evidence in the record before an agency will support either an
affirmative or a negative finding, the agency order must be upheld.  Auto Convoy
Co. v. R.R. Comm'n of Texas, 507 S.W.2d 718, 722 (Tex. 1974).  Any conflict
in the evidence must be resolved in favor of the agency's decision.  Warner v. City
of Lufkin, 582 S.W.2d 165, 167 (Tex. Civ. App.--Beaumont 1979, writ ref'd
n.r.e.).


	In the administrative hearing, Delgado presented evidence supporting its
application, as required by section 4(e) of the Motor Carrier Act.  Tex. Rev. Civ. Stat. Ann. art.
911b, § 4(e) (West Supp. 1992).  The protestants then presented evidence on their objection to
the application based on "reasonably adequate service" by the existing carriers in the area,
pursuant to sections 4(e), 5a(d), and 8 of the Motor Carrier Act.  Tex. Rev. Civ. Stat. Ann. art.
911b, §§ 4(e), 5a(d), and 8 (West 1964 & Supp. 1992).  The Commission weighed the evidence
and issued specific findings of fact and conclusions of law.  Delgado did not object to the findings
of fact in either its motion for rehearing before the Commission or the original petition filed in
the district court.  Therefore, Delgado waived any objections to the findings of fact.  Bowman v.
Texas State Bd. of Dental Examiners, 783 S.W.2d 318, 321 (Tex. App.--Austin 1990, no writ). 
From these uncontroverted findings of fact the Commission reasonably could conclude that
"reasonably adequate service" exists, a conclusion which supports the denial of the application.
	The district court, by its order, improperly substituted its judgment on the weight
of the evidence for that of the Commission.  We find that substantial evidence exists in the record
to support the Commission's conclusion of "reasonable adequate service" and sustain point of
error one.  Therefore, we reverse the district court judgment and render judgment affirming the
order of the Commission.  Having reversed the district court judgment on the point of error one,
we do not reach point of error two.


CONCLUSION
	We reverse the judgment of the district court and render judgment affirming the
final order of the Railroad Commission of Texas.


  
					Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Jones and Kidd]
Reversed and Rendered
Filed:   September 23, 1992
[Publish]
