
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN


 


NO. 3-92-586-CV



LONE STAR GREYHOUND PARK, INC. AND GALVESTON
BAY GREYHOUND RACING ASSOCIATION, LTD.,

	APPELLANTS

vs.



TEXAS RACING COMMISSION AND GULF GREYHOUND PARTNERS, LTD.,


	APPELLEES


 


FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. 91,4880, HONORABLE F. SCOTT McCOWN, JUDGE PRESIDING

 


	Lone Star Greyhound Park, Inc., and Galveston Bay Greyhound Racing
Association, Ltd., sued for judicial review of a final order issued by the Texas Racing
Commission.  Gulf Greyhound Partners, Ltd., intervened.  The trial court affirmed the agency
order.  We will affirm the trial-court judgment.


THE CONTROVERSY
	The Commission licenses the operation of greyhound races, and attendant pari-mutuel betting, under the terms of the Texas Racing Act, Tex. Rev. Civ. Stat. Ann. art. 179e,
§ 6 (West Supp. 1993) (the "Act").  See Act, § 6.  The present controversy arose when five
competing applicants requested the single license authorized for Galveston County. (1)
 The First Agency Decision.  After an evidentiary hearing, the Commissioners voted
on July 14, 1989, to grant Lone Star's application, subject to certain conditions, and to reject the
other applications.  The vote was never effectuated by a written order.  The Commission extended
the time for issuing a final order and shortly afterwards granted a motion by the agency staff that
the evidence be re-opened.  The Commission heard additional evidence and, on November 7,
1989, issued a written order purporting to award the license to Lone Star subject to specified
conditions.
	After their motions for rehearing were overruled by operation of law, the
unsuccessful applicants sued in separate suits for judicial review of the Commission's order of
November 7, 1989.  See Act, § 5.02; Administrative Procedure and Texas Register Act, Tex.
Rev. Civ. Stat. Ann. art. 6252-13a, § 19 (West Supp. 1993) (APTRA).  The trial court
consolidated the various actions and Lone Star intervened, aligned with the Commission as
defendant.  On April 9, 1990, the trial court dismissed the consolidated actions, for want of
jurisdiction, on the court's determination that the Commission's order of November 7, 1989, was
not a final order within the court's power of review.  See APTRA § 19(a).  Lone Star failed to
perfect its appeal from the trial-court judgment.  See Lone Star Greyhound Park, Inc. v. Bay
Greyhound Racing Assoc. Ltd. Partnership, No. 3-90-125-CV (Tex. App.--Austin June 30, 1990,
writ denied) (not designated for publication).  Thus the trial-court judgment of April 9, 1990,
remains a valid and subsisting judgment.
 The Second Agency Decision.  On May 16, 1990, the Commission convened and
reopened the evidence in the contested case.  After hearing further evidence, the Commission, in
a written order dated January 29, 1991, awarded the license to Gulf Greyhound and rejected the
competing applications.  Lone Star and Galveston Bay sued for judicial review of the order, which
the trial court affirmed.  This appeal ensued.
	Lone Star urges six points of error.  One point contends the Commission was
without jurisdiction to reopen the agency proceedings on May 16, 1990, rendering void the
Commission's second decision and order.  Another point asserts the Commission erred in
reopening the proceedings on that day.  These two points of error are determinable from the
agency record under APTRA § 19(e)(1)-(4).  In its four remaining points of error, Lone Star
complains of "procedural irregularities alleged to have occurred before the agency but which are
not reflected in the record."  APTRA § 19(d)(3).  These points of error are determinable from
evidence received in the trial court, upon which the court made findings of fact and conclusions
of law.
	Galveston Bay brings twenty-three points of error contending the Commission's
order should be reversed based on the same and similar procedural errors not reflected in the
agency record.  The Commission brings one cross-point of error contending the trial court erred
in allowing Lone Star to assert violations of the Open Meetings Act because Lone Star lacked
standing to make the claims.  Gulf Greyhound urges seven cross-points attacking the trial court's
refusal to exclude testimony during judicial review of the 1991 order.


THE COMMISSION'S JURISDICTION
	Lone Star contends in its first point of error that the Commission lacked jurisdiction
to issue its order of January 29, 1991, awarding the license to Gulf Greyhound, because the
agency's preceding order of November 7, 1989, issuing the license to Lone Star, was a final order
not subject to reconsideration by the agency.  Lone Star argues, as it must, that we are free to
disregard the trial-court judgment of April 9, 1990, holding that the Commission's previous order
was not final.
	The trial-court judgment of April 9, 1990, explicitly determined that the
Commission's order of November 7, 1989, was not a final order.  No appeal was perfected from
that judgment.  "Issue preclusion, or collateral estoppel, prevents relitigation of particular issues
already resolved in a prior suit."  Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.
1992); see also Whilhite v. Adams, 640 S.W.2d 875, 876 (Tex. 1982).  Whether rightly or
wrongly, it was finally determined that the order of November 7, 1989, was not a final agency
order, and the parties in this litigation are bound thereby.  We overrule Lone Star's first point of
error.


NO "CHANGED CIRCUMSTANCES"

	Lone Star contends in its fourth point of error that if the Commission had the power
to reopen the proceedings, after the trial-court decision of November 7, 1989, the agency erred
in doing so because there was no evidence of "changed circumstances" adduced before the
Commission.  See South Tex. Indus. Servs., Inc. v. Texas Dep't of Water Resources, 573 S.W.2d
302, 304 (Tex. Civ. App.--Austin 1978, writ ref'd n.r.e.) (agency may reopen matter and issue
different order on showing of changed circumstances); cf. Sexton v. Mount Olivet Cemetery Ass'n,
720 S.W.2d 129, 138 (Tex. App.--Austin 1986, writ ref'd n.r.e.) (agency's power to reopen
proceeding depends upon express or implied statutory grant of the power to do so).
	Until an agency issues an order that is final and effective, the agency retains
jurisdiction of the contested-case controversy and need not show changed circumstances to
withdraw its order and issue a new one.  See South Taylor County Indep. Sch. Dist. v. Winters
Indep. Sch. Dist., 249 S.W.2d 1010, 1012 (Tex. 1952).  Lone Star reasons from a premise that
the Commission's order of November 7, 1989, by which Lone Star purportedly acquired a license,
was a final and effective order.  That is incorrect.  As discussed above, the order of that date was
not a final and effective agency order.
	Lone Star's argument does not really address the pertinent issue.  The issue pertains
actually to the Commission's exercise of its statutory power, in a larger sense, after the reviewing
court decided the agency's initial decision was not a final and effective one.  When the trial court
so decided, the Commission was again charged with the statutory duty of judging the competing
applications in light of what the Act and the agency rules required in order to effectuate the
statutory objectives.  This included a duty to decide such particulars as whether to reopen the
evidence.  The fact that the Commission's initial decision was held non-final did not create rights
of priority in Lone Star as against the statutory objectives themselves.


It is a guiding principle of administrative law . . . that "an administrative
determination in which is embedded a legal question open to judicial review does
not impliedly foreclose the administrative agency, after its error has been
corrected, from enforcing the legislative policy committed to its charge."

Prairie Constr. Co. v. Operating Eng'rs, 425 U.S. 800, 806 (1976) (citation omitted).
	We overrule Lone Star's fourth point of error and turn now to its several
contentions, and those of Galveston Bay, concerning the "procedural irregularities alleged to have
occurred before the agency but which are not reflected in the [agency] record." 
APTRA § 19(d)(3).


TEXAS OPEN MEETINGS ACT VIOLATIONS

	Lone Star contends we should hold void the Commission's final order because it
issued from Commission meetings held in violation of the "Open Meetings Act," Tex. Rev. Civ.
Stat. Ann. art. 6252-17 (West Supp. 1993) ("TOMA"). (2) 
 Written Notice.  Section 3A(a) of TOMA requires that "[w]ritten notice of the date,
hour, place and subject of each meeting . . . shall be given before a meeting."  Lone Star contends
the notices furnished by the Commission, in advance of its meetings on May 16, 1990, and June
1, 1990, did not state with sufficient specificity the "subject" of the meeting.
	The notice preceding the meeting of May 16, 1990, declared as follows:


The Texas Racing Commission's Greyhound Racing Section will meet to consider
and vote on matters relating to the Greyhound Racetrack License for Galveston
County.  The Greyhound Racing Section will meet in Executive Session to receive
information from and ask questions of General Counsel on Procedural Matters
relating to the Greyhound Racetrack License for Galveston County.

	The notice preceding the meeting of June 1, 1990, lists several subjects, including
"Consideration of and Votes on matters relating to the Greyhound Racetrack Licnese [sic] for
Galveston County."  We note that the Act authorizes only three greyhound racetracks for the
State, and these must be located in counties that border the Gulf of Mexico.  Act, § 6.04(e).
	In City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 764-66 (Tex.
1991), the supreme court reviewed its decisions concerning the sufficiency of subject descriptions
given in notices required by TOMA.  We believe both of the Commission's advance notices meet
the degree of specificity demanded by TOMA as construed in City of San Antonio and the
decisions cited therein.  We refer particularly to the notice in Texas Turnpike Authority v. City of
Fort Worth, 554 S.W.2d 675, 676 (Tex. 1977), which declared that the government body would
"[c]onsider request . . . to determine feasibility of a bond issue to expand and enlarge the Dallas-Fort Worth Turnpike."  We hold the two written notices in the present cause sufficient.
 Executive-Session Notice and Announcement.  As indicated above, the
Commission's advance notice of the meeting held on May 16, 1990, recited that the Commission
would "meet in Executive Session to receive information from and ask questions of General
Counsel on Procedural Matters relating to the Greyhound Racetrack License for Galveston
County."  Lone Star contends the subject description was insufficient because the breadth implicit
in the word "matters" logically includes every imaginable sub-topic and excludes none.  We
believe the subject description sufficiently specific.  It identifies the particular purpose of the
executive session--consultation with the general counsel; and the notice identifies which of the three
possible greyhound racetrack licenses would be discussed--the license for Galveston County, which
was in litigation at the time.  See Cox Enters., Inc. v. Board of Trustees, 706 S.W.2d 956, 959
(Tex. 1986) (school board not expected to disclose its litigation discussions in written notice but
cannot totally conceal fact that pending lawsuit will be discussed).  Listing the particulars of
litigation discussions would defeat the very purpose embodied in TOMA section 2(e), which
permits private consultations between the government body and its attorney "with respect to
pending or contemplated litigation, settlement offers, and matters where the duty of a public
body's counsel to his client . . . clearly conflicts with this Act."
	Lone Star also complains that the executive-session segment, in the meeting of May
16, 1990, was not preceded by a proper public announcement as TOMA section 2(a) requires. 
That statute forbids an executive session except when a quorum of the governmental body has first
convened in open meeting, for which notice has been given, and the presiding officer "has
publicly announced that a closed or executive meeting or session will be held and identified the
section or sections under this Act authorizing the holding of such closed or executive session."
TOMA § 2(a) (emphasis added).
	In the meeting of May 16, 1990, the Commission convened in open session and the
presiding officer announced publicly as follows:


For the record, the purpose of the executive session is so that our legal staff can
brief us in regards to the agenda today and I'm sure all of you know what the
agenda is today in regards to the Lone Star matter that's been passed down from
the Court for us to review.

It is plain that the presiding officer did not identify, by section number, the provision of TOMA
section 2(e) that authorizes private consultations between a government body and its lawyers
relative to pending litigation.  The issue reduces then to whether it is sufficient to refer only to
the content of the TOMA section relied upon to justify the private consultations.  This should be
judged in reference to the purposes underlying the statutory requirement imposed in TOMA
section 2(a).
	We believe the purposes underlying the requirement of a public announcement,
identifying the section relied upon by the government body, are several:  to cause the
governmental body actually to assess the applicability of the exceptions listed in section 2 of
TOMA before deciding to close the meeting; to fix the government body's legal position as
relying upon the exception specified; to inform those present at the meeting of that exception and
thus the justification invoked by the government body; and by doing so, to give those present an
opportunity to object intelligently.  See Bowen v. Calallen Indep. Sch. Dist., 603 S.W.2d 229,
236 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.).  We should therefore judge the
sufficiency of any particular public announcement in light of whether it effectuates or hinders
these purposes.
	We hold that the presiding officer's public announcement was sufficient.  The
district court had returned the litigation to the Commission for reconsideration, and the private
discussion with "legal staff" had the stated purpose of permitting the staff to "brief" the
Commission members on "matters" that were pertinent.  It seems to us that this was a sufficient
identification of TOMA section 2(e) for the purposes indicated.
	Lone Star also contends the exception was improperly invoked because there was
no pending or contemplated litigation at the time of the executive session.  Section 2(e) extends
the private-consultation exception to "pending or contemplated litigation" and "matters where the
duty of the public body's counsel to his client, pursuant to the Code of Professional Responsibility
of the State Bar of Texas, clearly conflicts with the Act."	
	The record reflects that all the unsuccessful applicants had filed suit against the
Commission based on the November 1989 order.  The trial court signed on April 9, 1990, a
judgment in the consolidated actions.  The presiding officer made his announcement on May 16,
1990.  This Court did not adjudge until June 3, 1990, that Lone Star had failed to perfect its
appeal.  The controversy was thus in actual litigation at the time the presiding officer made the
announcement on May 16, 1990.  We hold section 2(e) was therefore applicable to the
Commission's closed executive session. (3)
 Certified Agenda or Tape Recording.  Lone Star complains the Commission failed
to maintain and preserve a certified agenda or audio tape recording of the executive session held
May 16, 1990.  Section 2A(a) of TOMA requires a certified agenda with the formalities set out
in subsections 2A(b) and (c); subsection 2A(d) provides that a tape recording may serve in lieu
of a certified agenda.
	Section 2A(a) expressly states, however, that "consultations in accordance with"
TOMA section (2)(e) are an exception to the general requirement of a certified agenda.  We hold,
therefore, that the Commission was not obliged to keep either a certified agenda or tape recording
of the executive session held on May 16, 1990. (4)
	For the reasons given, we overrule Lone Star's second point of error. (5)


FAILURE TO READ AGENCY RECORD

	In its fifth point of error, Lone Star contends the Commission's final order of
January 29, 1991, should be reversed because a majority of the commissioners who voted to issue
the license did not read the agency record as required by APTRA section 15. (6)  Galveston Bay
makes a similar attack in its point of error one and assails, in points of error two through five,
specific trial-court findings of fact and conclusions of law related to this issue.  Section 15 of
APTRA provides as follows:


If in a contested case a majority of the officials of the agency who are to render the
final decision have not heard the case or read the record, the decision, if adverse
to a party to the proceeding other than the agency itself, may not be made until a
proposal for decision is served on the parties, and an opportunity is afforded to
each party adversely affected to file exceptions and present briefs to the officials
who are to render the decision.

	Being evidently doubtful about the validity of the proposal for decision served on
the parties, the Commissioners elected to read the record. (7)  Lone Star argues the Commissioners
did not actually comply with APTRA section 15 in the sense of reading the entire record as
opposed to selected parts.  The trial court found that two of the three Commissioners had read the
entire record although they "skimmed" unidentified parts of it.  This finding was inferred from
evidence received in the trial court.
	Section 15 of APTRA is derived from section 11 of the Model State Administrative
Procedure Act (1961) issued by the Commissioners on Uniform State Laws.  See Model State
Administrative Procedure Act (1962), 15 U.L.A. § 11 (1990) (Model Act).  One of the six major
principles of the Model Act was to assure "personal familiarity with the evidence on the part of
responsible deciding officers and agency heads in" contested-case adjudications.  Model Act, 15
U.L.A. at 141-42 (prefatory note) (Commissioners on Uniform State Laws 1961).  The
requirement that agency decision makers (1) hear the evidence, (2) read the record, or
(3) entertain briefs and oral arguments following a proposal for decision, has a purpose:  "It is
intended to preclude 'signing on the dotted line.'"  Id. § 11 (comment).  We believe, therefore,
that we may impute the same purpose to APTRA section 15 in judging whether the
Commissioners complied with its provisions in the present case or whether they abandoned their
decision-making obligation and simply signed "on the dotted line."
	We must bear in mind that the Commissioners had personally heard the evidence
adduced before their earlier vote to issue the license to Lone Star.  After return of the controversy
from the district court, the hearing examiner received additional evidence, some of which was
cumulative of that given earlier.  The record furnished to the Commissioners for their reading
contained the entire body of evidence received in the contested case.
	In the trial court, two of the Commissioners testified they read the transcript of all
the hearings, some exhibits, depositions, prefiled testimony, the truncated proposal for decision,
and its related exceptions and briefs filed by the parties.  The third Commissioner testified she
read everything filed in the contested case.  Galveston Bay and Lone Star offered contrary
evidence in the form of testimony given in court by a speed-reading teacher.  He gave his opinion
that one could not have read the large amount of material in the amount of time the
Commissioners testified they spent on the matter.  From the evidence, the trial court declined to
find that a majority of the Commissioners had not read the record as required by APTRA section
15.
	Lone Star did not, in our view, carry its burden of proof as to the procedural
irregularity alleged.  The trial court failed to make the findings Lone Star required.  There was
affirmative evidence showing the Commissioners spent considerable time reviewing the record and
no evidence showing that they did not comprehend and rely upon the parts of the record they
believed material to a decision.  Certainly there was no evidence showing as a matter of law that
the Commissioners' neglect of the record or want of comprehension as to the material parts
amounted to an abandonment of their decision-making responsibilities and their signing a final
order without regard to the evidence.  
	Accordingly, we overrule Lone Star's fifth point of error and Galveston Bay's
points of error one through five.


EX PARTE COMMUNICATIONS

	In its sixth point of error, Lone Star contends the trial court should have set aside
the Commission's final order of January 29, 1991, because the order was fatally poisoned by ex
parte communications prohibited by APTRA section 17. (8)  Galveston Bay raises the same argument
in its points of error six through twenty-three, assailing on the same ground specific trial-court
findings and conclusions of law regarding the subject of ex parte communications.  The ex parte
communications were as follows.
 Commission Members and General Counsel.  The prohibition in APTRA section
17 does not ordinarily apply to contested-case communications between agency decision makers
and the agency's general counsel.  See County of Galveston v. Texas Dep't of Health, 724 S.W.2d
115, 124 (Tex. App.--Austin 1987, writ ref'd n.r.e.).  Lone Star and Galveston Bay contend,
however, that this exception does not apply in this case because Paula Carter, the Commission's
general counsel who communicated with the Commissioners about the contested case, had
participated in the proceedings.  
	It is undisputed that Carter engaged in oral and written communications with the
Commissioners during the contested case; attended the hearings held in the first phase of the
contested case, which did not culminate in a final order; and presided at the meeting in December
1989, when the Commissioners heard oral argument on the unsuccessful applicants' motions for
rehearing.  From the evidence adduced in the trial court, the court found as follows regarding
Carter's communications with the Commissioners:  (1) they concerned only procedural or
administrative matters and not the merits of the contested case; (2) they were not made as a
conduit for bringing before the Commissioners the parties' views regarding the merits of the
various applicants; (3) they did not amount to suggestions as to how the Commissioners should
vote; (4) they did not pertain to the preparation of findings of fact or conclusions of law; and
(5) all parties were aware of the communications and did not object to them before issuance of the
final order on January 29, 1991.
	The trial court concluded the communications between Carter and the
Commissioners did not amount to a violation of APTRA section 17, and in any case such a
violation was harmless or had been waived.
	Lone Star and Galveston Bay argue against the factual conclusions the trial court
drew from the evidence.  They argue that Carter conferred with the Commissioners on matters
of fact as well as law; that she recommended how the Commissioners should vote and explained
pending motions to them; that she reported to a Commissioner regarding one of the conditions
imposed on Lone Star in the order of November 7, 1989; and that she served as a "go-between"
or conduit between the parties and the Commissioners.  The trial court declined to find the facts
necessary to support these allegations.  Therefore, Lone Star and Galveston Bay are obliged to
show that the evidence established as a matter of law that the allegations are true.  They fail to
do so.
	Lone Star and Galveston Bay point to a single specific matter discussed by Carter
with a commissioner.  Ironically, it involves the status of Lone Star's efforts to comply with a
condition imposed upon the license issued to Lone Star on the Commission's order that was
eventually held not to be a final order.  After a meeting with Lone Star's counsel, Carter, and the
Commission staff, Carter informed a commissioner of Lone Star's attempts to satisfy the
condition--a financial requirement.  This conversation occurred, however, after the Commission
had overruled the motions for rehearing in the contested case and the trial court had acquired
jurisdiction of the matter in suits for judicial review filed by the dissatisfied applicants.  See
APTRA §§ 16(c), 19(b)(3); South Tex. Indus. Servs., 573 S.W.2d at 304.
	Galveston Bay's reference to Carter as a "go between" or conduit between the
parties and the Commissioners refers, apparently, to discussions she had with the applicants'
counsel about scheduling and procedures.  There is no indication in the evidence that these
discussions involved evidence or the merits of the contested case. (9)
 A Commissioner and the Agency Veterinarian.  Lone Star and Galveston Bay
complain of a conversation in mid-November 1990, between the Commission's staff veterinarian,
Sue Baittie, and Dr. Demarious Frey, a commissioner. (10)  Lone Star and Galveston Bay alleged
that Frey told Baittie how the commissioners were going to vote and the identity of the particular
applicant that would receive the license.
	The evidence adduced in the trial court, as to this alleged procedural irregularity,
is conflicting.  The two participants in the conversation recalled its content quite differently.  The
trial court declined to find in the conversation a violation of APTRA section 17 and concluded that
any such violation was harmless in any event.
	The prohibition of APTRA section 17 was designed for a specific purpose--to
prevent "litigious facts" coming before agency decision makers outside the evidentiary record in
the contested case.  See Galveston County, 724 S.W.2d at 119-21.  Lone Star and Galveston Bay
do not contend, however, that the Frey-Baittie conversation had that result, so that the
commissioners might have made their respective decisions in the case based on grounds outside
the agency record.  Instead, Lone Star and Galveston Bay argue simply that they were deprived
of an opportunity to cross-examine the three commissioners who had, according to Baittie's
testimony in the matter, reached a decision in the case before they read the record.  Unless
evidence is tested by cross examination, its truthfulness and materiality remain doubtful.  That is
one important reason, among others, why APTRA section 17 prohibits ex parte communications
about issues of fact and law.  But a violation of the prohibition is not shown unless a party
establishes that the content of the ex parte conversation came within the prohibition.  The trial
court declined to make a finding that such was the case.  The evidence conflicts on what the
content of the conversation was; we therefore cannot say the conversation came within the
prohibition as a matter of law.  We hold accordingly.  
	For the reasons given, we overrule Lone Star's sixth point of error and Galveston
Bay's points of error six through twenty-three.



DENIAL OF DUE PROCESS OF LAW
1.  Lone Star
	In its third point of error, Lone Star contends the manner in which the Commission
reopened the contested-case proceeding violated Lone Star's constitutional right to due process
of law.  The trial court made findings of fact and conclusions of law relative to Lone Star's
allegations, based on evidence received in the trial court.  Lone Star does not challenge the
findings of fact; we will, therefore, treat them as valid and subsisting facts by which to judge the
correctness of the trial court's conclusions of law.  See Adams v. American Quarter Horse Ass'n,
583 S.W.2d 828, 833 (Tex. Civ. App.--Amarillo 1979, writ ref'd n.r.e.).
 Vested Right.  Lone Star contends the order of November 7, 1989, even if not final
for purposes of judicial review, was final in the sense that it "had gone into effect and thereby
affected the practical relationship between Lone Star and the Commission."  Lone Star argues that
it had, therefore, a vested, protected interest in the license that could not be altered except through
procedures for revoking or suspending the license and that reopening the evidence was the
equivalent of a new proceeding that deprived Lone Star of its constitutional right to due process
of law.
	Lone Star obtained its license under the Act.  Section 5.02(a) of the Act provides
implicitly for judicial review of the Commission's orders.  That is to say, the Commission's order
awarding Lone Star the license was subject to judicial review by the very terms of the statutory
scheme under which the license was issued.  Such review was obtained, and it was decided that
the purported final order was not, indeed, a final order.  Lone Star could have no vested right by
reason of an order not final.  See Houston Indep. Sch. Dist. v. Houston Chronicle, 798 S.W.2d
580, 589 (Tex. App.--Houston [1st Dist.] 1990, writ denied).  "[I]t is not contrary to due process
to allow . . . administrators who have had their initial decisions reversed on appeal to confront
and decide the same questions a second time around."  Withrow v. Larkin, 421 U.S. 35, 57
(1975).
 Impartial Decision Maker.  The Comptroller of Public Accounts is an ex officio
member of the Commission by virtue of section 2.02(a) of the Act.  Bob Bullock occupied the
office of Comptroller and was therefore a commissioner at the time the Commission decided the
contested case now before us.  He voted to reopen the case after its return from the district court,
as ordered by the Commission on May 16, 1990.
	Earlier in the contested case, however, Bullock had voluntarily recused himself and
his representative because Bullock's brother worked for a firm that had done preliminary
architectural work for Galveston Bay.  Before the vote to reopen the evidence, Bullock's
representative announced that Bullock's brother was no longer actively involved in the
architectural firm, the firm's income would not be affected by the Commission's decision, and the
representative would cast Bullock's vote in the case.  The Commission overruled Lone Star's
motion to recuse Bullock.  Lone Star asserts it was denied due process of law in consequence.
	It is presumed Bullock was unbiased, and the burden of establishing a disqualifying
interest lay upon Lone Star.  See Schwieker v. McClure, 456 U.S. 188, 195 (1982).  The record
shows no disqualification on Bullock's part, nor does it show that any of his actions were less than
impartial.  See Withrow, 421 U.S. at 54-55; Balla v. Texas State Bd. of Medical Examiners, 693
S.W.2d 715, 717 (Tex. App.--Dallas 1985, writ ref'd n.r.e.).  Lone Star argues it was denied due
process of law because Bullock had not read the record, compiled in the contested case, before
he voted to reopen the evidence.  Section 15 of APTRA requires, however, that in certain
circumstances the record must be read by agency decision makers before they make a final
decision in the contested case.  Such was not the case in the vote on May 16, 1990.  Finally, we
observe the Commission, without Bullock's participation, ratified in its June 1, 1990, meeting the
decision taken May 16, 1990, to reopen the evidence.  The trial court declined to find that Bullock
was biased or disqualified to act on any aspect of the contested case, including the motion to
reopen the evidence.  We cannot conclude the contrary as a matter of law based on the record
before us.
 Lack of Notice and Hearing.  Lone Star complains it was denied notice and hearing
in connection with the Commission's decision, on May 16, 1990, to reopen the evidence.  The
demands of due process of law do not require a hearing at the initial stage, or at any particular
point in the administrative proceeding, so long as a hearing is held before the final order becomes
effective.  Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-53 (1941); Adams, 583 S.W.2d
at 835.  Lone Star, like all the applicants, had notice of and an opportunity to participate in the
subsequent hearings that followed the Commission's decision to reopen the evidence.  Lone Star
did, of course, participate in the hearings before May 16, 1990.
	Finding no deprivation of due process of law, as averred by Lone Star, we overrule
its third point of error.


2.  Galveston Bay

	Galveston Bay, in its points of error twenty through twenty-three, complains it was
denied due process of law because of alleged procedural irregularities in the contested case.  The
trial court declined to find from the evidence the facts necessary to sustain these irregularities. 
Galveston Bay argues on appeal that it established the requisite facts, as a matter of law
apparently, and that they show a deprivation of due process of law that was harmful to Galveston
Bay.
	The procedural irregularities in question are: (1) the Commissioners' failure to
"read the record" as discussed previously; (2) the ex parte communications discussed previously;
and (3) a claim that Commissioner Doran and Commissioner Frey were biased decision makers. 
In connection with the alleged ex parte communications, Galveston Bay points particularly to the
fact that it was deprived of the opportunity to cross examine those involved and an opportunity
to offer rebuttal evidence to the statements made in such communications.
	We have held above that the record does not show as a matter of law that the
commissioners failed to read the agency record sufficiently to comply with APTRA section 15 or
that the ex parte communications in question were such as to invalidate the agency order because
they violated APTRA section 17.
	Galveston Bay asks us to conclude that Commissioner Frey was biased as a matter
of law because she predicted, in a conversation with the veterinarian, Baittie, how the
commissioners would vote and which applicant would receive the license.  Galveston Bay asks
us to conclude as a matter of law, from a part of the evidence adduced in court, that
Commissioner Doran was biased because in December 1990, before issuance of the license to Gulf
Greyhound in January, Doran "felt" one or two of the four applicants "should not get the license."
	We decline to hold as a matter of law, on such thin evidence, that the two
commissioners were biased decision makers and that Galveston Bay was harmed in consequence. 
We find in the evidence nothing to suggest a specific foundation for the bias attributed to Doran. 
We have discussed previously the Frey-Baittie conversation.  We are asked to conclude (1) that
one version of the conversation as opposed to the other was correct; and (2) that Frey's statement,
if adopted as correct, amounted to a statement that the commissioners had decided the case in
advance on matters outside the law and the evidence.  We cannot find as a matter of law, contrary
to the trial court's determination, the first element.  We cannot find the second element, as a
matter of law, because the content of the alleged statement is insufficient in and of itself to impugn
the fairness of the commissioners.  "Without a showing to the contrary, state administrators 'are
assumed to be men of conscience and intellectual discipline, capable of judging a particular
controversy fairly on the basis of its own circumstances.'"  Withrow, 421 U.S. at 55 (quoting
United States v. Morgan, 313 U.S. 409 (1941)).  The trial judge was in the best position to judge
the relevant particulars.  The presumption has not been defeated as a matter of law.  Accordingly,
we overrule Galveston Bay's points of error twenty through twenty-three.
	Because of our holdings above, we need not address Gulf Greyhound's cross-points
of error.  Finding no error as assigned, we affirm the trial-court judgment.


  
					John Powers, Justice
[Before Justices Powers, Kidd and B. A. Smith]
Affirmed
Filed:   August 25, 1993
[Publish]
1.        The five applicants were Lone Star Greyhound Park, Inc. (Lone Star); Galveston Bay
Greyhound Racing Association, Ltd. (Galveston Bay); Gulf Greyhound Partners, Ltd. (Gulf
Greyhound); Galveston Greyhound Racing Association; and Bay Greyhound Racing Associated
Limited Partnership.
2.        Because we hold as we do below, we need not address the Commission's cross-point of
error in which the agency contends Lone Star lacked the "standing" necessary to complain of a
TOMA violation.
3.        Lone Star cites Phelps Dodge Refining Corp. v. Marsh, 733 S.W.2d 359 (Tex. App.--El
Paso 1987, no writ), to support its argument.  Phelps interpreted the Texas Rule of Civil
Procedure Rule 166b(3)(d) discovery exception, which applies when a party has "good cause" to
believe a suit will be filed.  The Phelps court held that the exception only applied if there was
some "outward manifestations of future litigation," not just "a good faith belief" suit would be
filed.  Id. at 361.  Here, however, actual litigation was pending.
4.        The record reflects that the Commission's general counsel did tape the executive session. 
The trial court, upon learning of the tape's existence, ordered its production.  The tape, however,
was missing from the Commission's files and was never produced.

       The Commission's general counsel, before the trial court's order of production but after
Lone Star's motion for production had been filed, testified by affidavit that she searched for the
tape.  During the search, she discovered two tapes labelled May 16th.  One contained the general
meeting proceedings; the other was blank.  She discarded the blank tape "to avoid confusion." 
Lone Star, in arguing the Commission violated TOMA, imputes corrupt motives to the actions of
the Commission's general counsel.  Her actions are not relevant under the point of error before
us, however, because TOMA did not require a tape under the circumstances.
5.        Lone Star, in an outline of its argument under this point of error, contends the executive
session violated, in addition to the sections discussed above, TOMA § 2(r).  Section 2(r),
however, applies to communications between employees of the governmental body during open
meetings.  Further, Lone Star did not brief this aspect of its argument, and the trial court made
findings of fact that the "whispered conversations" Lone Star complained of to the trial court did
not violate § 2(r).  The finding is not challenged.
6.        Lone Star offers no argument on this point of error but incorporates and adopts the
arguments offered by Galveston Bay.
7.        The Commissioners personally heard that part of the evidence adduced before the
Commission issued the license to Lone Star by order dated November 7, 1989.  After the trial
court held that order was not a final order, the court returned the controversy to the Commission. 
The Commissioners thereupon appointed a hearing examiner to conduct the remainder of the
contested case.  At the close of the evidence in this part of the case, the examiner purported to
issue a "proposal for decision" in the case.  See APTRA § 15.  In that document, however, the
examiner expressly declined to recommend that any particular applicant should receive the license,
as among the competing applicants.  The "proposal for decision" did purport to include findings
of fact and conclusions of law, as required by APTRA § 15.  The "findings of fact" consisted of
incorporating certain findings recommended by the applicants; the "proposal for decision"
denominates these as "illustrative of the type of findings . . . necessary to a decision approving
one of the applicants."  The only conclusions of law reached by the examiner were to the effect
that the Commission had jurisdiction over the case and the applicant selected by the Commission
would meet the required standards if chosen.

	Three of the applicants complained the examiner's report was not a "proposal for decision"
within the meaning of APTRA § 15.  The Commissioners thereupon elected to read the record
as a basis for their decision, as permitted, of course, by APTRA § 15.
8.        Lone Star offers no argument on this point but incorporates and adopts the arguments
offered by Galveston Bay.
9.        Like the other applicants, both Galveston Bay and Lone Star's counsel contacted Carter
during the proceedings regarding procedural and administrative matters.  They first complained
of her role after the license had been issued to Gulf Greyhound.  The trial court concluded that,
even if the claim had merit, Lone Star and Galveston Bay had waived it.
10.        Although APTRA § 17 allows commission members to communicate ex parte with agency
employees if they have not participated in any hearing in the case, Baittie does not fall within this
category because of her participation in the selection of the license holder.
