### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00349- CV

Erasm o Gar cia, Appellant

v. The Texas Real Estate C om m ission ; and Dougl as E. Old m ixon in his O ff icial Capacity as Adm inis trat or of the Texas Real Estate Com m ission , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0088 7, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Erasmo Gar cia appea ls f

rom the district court’ s judgme nt affir ming the decision of the Texas Real Estate Commi ssion following a contested case hear ing to assess a monetary penalty ag ainst Gar cia and suspend hi s rea l estate license. Gar cia co n t ends t hat t he C ommissi on violated the Administrative Procedur e Act (APA) by modify ing the conclusion of law of the administrative law judg e (A L J ) that onl y a monetary penalty should be im posed and that the C ommissi on’s final order is not su p p o rt ed by substantial evidenc e. Be cause we conclude that the Commi ssion’s modification to the AL J ’s conclusion of l aw fa i led to comply with the APA, but that there is substantial evidenc e to support the Commi ssion’s imposition of a monetary penalty , we aff irm the trial court’ s judgme nt in part and re verse and re mand in part.BACK GR OUND Erasmo Gar cia was a li ce n s ed rea l estate salesper son sponsored by J ames Charles Valentino, I I , a li cense d rea l estate br oker, be tween A pril 9, 2007, and Oc tober 9, 2008. See Tex. Occ . Code §§ 1101.002(1), ( 7) (defining broker and sale sperson), .351( c) ( providing that licensed salesper son may not act as broker unless associate d with broker and acting for broker ). Gar cia and Valentino conducte d rea l estate broker ag e activities under the business name Realty Gee ks. I n 2007, Gar cia repr esente d J ose Moreno and Eliz abeth Z amora in a rea l estate transac tion involving the sale of a residenc e from Moreno to Z amora . I n J uly 2008, Moreno and Z amora filed complaints ag ainst Gar cia with the Commi ssion concer ning his re prese ntation of them in the 2007 transa ction. After investiga tion, the Commi ssion deter mined that Gar cia violated provisions of the Texas Occ upations Code and Commi ssion r

ules by failing to disc lose that he was acting as an intermediar y , acc epting compensa tion from both sides of the transac tion without disclosing such compensa tion t o b oth parties, inserting his license numbe r in documents instead of his sponsoring broker ’s license number, and t ak i n g o ther inappropria te actions in his dealing s with both the buy er and the seller in the transa ction. The Commi ssion reque sted a hear ing befor e the State Offic e of Administrative He aring s and soug ht an administrative penalty of $30,500 and suspension of Gar cia’ s license fo r two y ear s. See generally Tex. Gov’t Code §§ 2001.051–.147 (setting out proce dures for contested

case hear ing under APA); Tex. Occ

. Code § 1101.71 0 (p roviding that proce eding under Chapter 1101, g overning rea l estate broker s and salesper sons, is subject to APA); see also Tex. Occ

. C o d e § § 1 1 0 1.652, .656, .701 (providing Commi ssion authority to suspend or revoke license or

2impos e administrative penalty for specifie d conduct)

. A hear ing was held befor e an AL J in

J une 20 1 1

. The AL J rec eived documentar y evidenc e and hear d the testimony of three witnesses: Br uce Wooley , Chief I nvestig ator with the Commi ssion’s Standard and E n fo rc ement Service s Division (Enfor ceme nt Divisi o n ); Sharon Har ris, an attorney and the Standards and ADR Coordinator with the Enforc ement Divisi o n ; and Gar cia. The AL J issued a proposal for decision (PFD) that contained finding s of fac t and conclusions of law, including a fi n d i n g t h at a $17,000 administrative penalty would ref lect the seriousness of the violations and a conclusion that, based on the finding s and conclusions, assessment of a $17,000 penalty would be appropr iate. The Commi ssion filed exceptions to the PFD reque sting that the AL J impose a two-y ear suspension of Gar cia’ s license in addition to the monetary penalty and make two nonsubstantive ty pog raphic al

corr ections. The AL J mod i fi ed t h e P FD to corr ect the ty pog raphic al err ors but declined to

rec ommend any substantive chang es t o the PFD. The Commi ssion issued its final order adopting the AL J ’s finding s of fac t and conclusions of law and adding the imposit ion of a two-y ear suspension

o f Gar cia’ s license. Gar cia appea led to the district court, which upheld the Commi ssion’s final order

. See Tex. Gov’t Code §§ 2001.171–.178 (providing fo r j u d i ci al revie w of final order ); Tex. Occ. Code § 1101.710. Ga rcia then filed this appea l.

STANDARD OF REVIEW We revie w a state ag ency ’s decision under the “substantial evidenc e” standard. See Tex. Gov’t C ode § 2001.174. This standard require s t h at we reve rse or rema nd a case for further proce eding s “if substantial rig hts of the appellant have been prejudice d beca use the administrative finding s, infere nces, conclusions, or decisions are (A) in violation of a constitutional or statutory

3provision; (B ) in excess of the ag ency ’s statutory authority ; (C) made throug h unlawful proce dure;

(D) aff ecte d by other err or of law; (E) not rea sonably supported by substantial evidenc e considering the reliable and probative evidenc e in the rec ord as a whole; or (F ) arbitra ry o r ca p ricious

or char acte rized by abuse of discretion or clea rly unwar

rante d ex er cis e of discretion.” Id. § 2001.174(2). I n revie wing fac t-based deter minations under this standard, we may not substitut e

our judgme nt for that of the ag ency but rathe r must deter mine whether , considering the reliable and probative evidence in the rec ord as a whole, some rea sonable basis exis ts in the rec ord for the ag ency ’s action. See id. § 2001.174(2)( E); Texas Indus. Energy Consumers v. CenterPoint Energy Hous

. Elec., LLC , 324 S.W .3d 95, 105 n.60 (Tex. 2010). “Thus, the ag ency ’s action will be sustained if the e vidence is such that rea sonable minds could have rea ched the conclusion that the ag ency must have rea ched in order to justify its action.” Texas Health Facilities Comm’n v. Charter Med.- Dal., Inc. , 665 S.W .2d 446, 453 (Tex. 1984). We presume that the ag ency ’s finding s, infere nces, c onclusions, and dec isions are supporte d by substantial evidence , and the bur den is on the ap pellant to demonstrate otherwise. See Froemming v. Texas State Bd. of Dental Exam’ rs , 380 S.W .3d 787, 791 (Tex. App.—Austin 2012, n o pet.); Pierce v. Texas Racing Comm’n , 212 S.W .3d 745, 751 (Tex. App.—Austin 2006, pet. denied)

. We must aff irm the ag ency ’s finding s if they are supported by more than a scintilla of evidenc e. Mireles v. T ex a s Dep’ t of Pub. Safety , 9 S.W .3d 128, 131 (Tex. 1999) (per curia m). Garcia’s issues also require us to construe applicable statutes and rules. Statuto ry construction is a question of law that we revie w de novo. See Railroad Comm’n of T ex.

v. Texas Citi

zens for a Safe Future & Clean W ater , 336 S.W .3d 619, 624 (Tex. 2011). Our primary

4conce rn is the express statutory lan gu age . S ee Galbraith Eng’g Consultant s, Inc. v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009). We apply t h e p l ain meaning of the text unless a differ ent meaning is supplied by leg islative definition or i s appa re n t fr o m t he contex t or t he plain meaning leads to absurd results. Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010). We construe administrative rules in the same manner as statutes. TGS-NOPEC Geophy sical Co. v. Combs , 340 S.W .3d 432, 438 (Tex. 2011).

DISCUSSIO N Modif ication of Con clusion of L aw Nu m ber 11 I n his first issue, Gar cia arg ues that the Commi s s i on’s modification to the AL J ’s conclusion of law conce rning the assessment of penalties does not meet the require ments of section 2001.058(e) of the APA. Section 2001.058(e) of the APA provide s: 1 (e) A state ag ency may chang e a findi ng of fac t or conclusion of law made by the administrative l aw j udg e, or may vaca te or modify an order issued by the administrative judg e, only if the ag ency

deter mines: (1) that the administrative law judge did not proper ly apply or interpre t a pplicable law, ag ency rules, written policies provided under Subsection (c) , o r p ri or administrative dec isions;

Although the AL J ’s sug g ested sanction is stated as a conclusion of law, the imposit ion of 1 sanctions is the application of possible sanctions to the specific fac ts, and as such, is a mix ed finding of fac t/conclusion of law or an “ultimate find i ng of fac t.” See Charter Med.- Dal., Inc. v. Texas Health Facilities Comm’n , 656 S.W .2d 928, 934 (Tex. App.—Austin 1983), rev’ d on other grounds , 665 S.W .2d 446 (Tex. 1984) (conc luding that ultimate fac t finding s are “broa d postulates” that are “phra sed in fac tual lang uag e” but are “ea sily seen as conclusions rela tive t o l ega l standards” ). Be cause this distinction does not aff ect our analy sis, we adopt the AL J ’s use of the term “conc lusion of law.” 5(2) that a prior administrative decision on which the administrative law judge relied

is incorre ct or should be c hang ed; or (3) that a

technica l error

in a finding of fa ct should be cha ng ed. The ag ency shall s t at e i n writ ing the specific rea son and leg al basis for a chang e made unde r this subsection.

Tex. Gov’t Code § 2001.058(e) ; see Sanchez v. Texas State Bd. of Med. Exam’ rs , 229 S.W .3d 498, 515 (Tex. App.—Austin 2007, no pet.). I n concl usion of l aw number 11, the AL J conclude d that “[b] ased on the above Finding s of Fa ct an d C o n clus ions of L aw, assessment of $17,000 penalty ag ainst [Garcia] would be appropr iate.” I n its final order , the Commi ssion modified conclusion of law number 11 to rea d as follows: “B ased on the above Finding s of Fa ct and Conclusions of L aw, assessment of $17,000 penalty ag ainst [Garcia] and a two y ear suspension of [Garcia’ s] Texas rea l
estate salesper son license would be appropr iate.” I n a sing le sentenc e, the Commi ssion e x plained the modification: “The Commi ssion is exercising its authority to chang e the disciplinary sanctions beca use of the number and serious nature of the violations found.” Garci a contends that the Commi ssion failed to meet the requireme nt of section 2001.058(e ) that it state t he specific reason and leg al basis for modify ing the AL J ’s conclusion of l aw that only a monetary penalty should be imposed. We ag ree .

Although the Commi ssion’s addition of a suspension was an exercise of its discretion
to adjust the sanction, as oppo s ed t o a m o d ification of a finding of fac t or conclusion of law, the Commi ssion nonetheless was require d to comply with section 2001.058(e) by providing a “spec ific

rea son and leg al basis” for reje ction of an AL J ’s proposed finding s and conclusions. See Froemming , 380 S.W .3d at 792; Pierce , 212 S.W .3d at 755; Granek v. Texas S t a t e B d

. of Med.

6Exam’ rs , 172 S.W .3d 7 6 1 , 7 81 (Tex. App.—Austin 2005, no pet.). One rea son the Commi ssion

stated for the modification is the seriousness of the violations found. Howeve r, that explanation is
contra dicted by one of its finding s of fac t. The Commi ssion adopted all o f t h e ALJ’s finding s of fac t, which include finding number 44 that “[a]ssessment of a $17,000 administrative penalty would reflect the seriousness of the violat i o n an d d eter future violations.” Thus, the C ommissi on found that an adminis trative penalty alone would addre ss the serious nature of Gar cia’ s conduct. Consequently , the Commi ssion’s f indings do not support its ex planation that additional discipline of a two-y ear suspension was neede d in order to ref lect t h e s er i o u sness of the violations. See Granek , 172 S.W .3d at 782 (holding that despite offe ring leng thy explanation for chang e in penalty , board’ s explanation violated section 2001.058(e) wher e explanation was not supported by Boa rd’s finding s and sever al finding s wer e contra dictory to explanation); see also Froemming , 380 S.W .3d at 794 (discussing Granek ). Fur ther, the Commi ssion offe red no discussion of Garcia’ s conduct an d its serious
nature and no explanation of why or how the rec ommended sanction did not addre ss the seriousness of the violations. See Froemming , 380 S.W .3d at 792–93 (conc luding that board’ s explanation met

re q uirements of section 2001.058(e) where it included dis cussion of agg rava ting circumstan ce s i t considere d in deter

mining sanction); Texas State Bd. of Dental Exam’ rs v. Brown , 281 S.W .3d 692, 699–700 (Tex. App.—Corpus Christi 2009, pet. denied) (holding that board complied with section 2001.058(e) wher e it identified as support for action specific finding s of fac t and conclusions of law and explained why additional disciplinary action was war rante d); Pierce , 212 S. W

. 3 d at 755 (determ i n ing that board complied with section 2001.058(e) wher e its order included three

7para g raphs explaining specific rea sons for modification of penalty ); Grotti v. Texas St a t e B d

. of Med. Exam’ rs , No. 03-04-00612- CV, 2005 Tex

. Ap p . L EXI S 8279, at *9, *27, *30 (Tex. App.—Austin Oct. 6, 2005, n o p et

. ) (m em. op.) (conc luding that board proper ly modified PFD wher e its order included explanation o f wh y re comm ended sanction did not addre ss sever ity of conduct, was too lenient to be eff ective, and was insufficient to protec t public). The second rea son the Commi ssion stated for modify ing the sanction was the number of violations found. As with its first rea son, howeve r, the Commi ssion fai l ed t o ex plain why or how the rec ommended sanction failed to addre ss the number of violations. See Froemming , 3 8 0 S

. W

. 3 d at 792–93; Brown , 281 S.W .3d at 699–700; Pierce , 212 S.W .3d at 755; Grotti , 2005 Tex. App. L EXI S 8279, at *9, *30.

Simi larly , the Commiss ion failed to ex plain its statutory authority or articulate any policy , statutory provision, or Commi ssion rule as the leg al basis for modify ing the s an cti on assessed. The Commi ssion stated that it was “exerc ising its auth o ri ty to chang e the disciplinary sanctions,” but it did not state the “leg al basis” for that authority , as require d by section 2001.058. See Froemming , 380 S.W .3d at 793 (conc luding that board’ s expla n at i o n met require ments of

s ec t i o n 2001.058(e) wher e it included explanation that AL J failed to consider prior actions and violations so that re co m m ended sanction was inconsistent with board’ s g uidelines and rules); Brown , 281 S.W .3d at 699–700 (Tex. App.—Corpus Christi 2009, pet. denied) (holding that board complied with section 2001.058(e) wher e specific finding s of fac t and conclusions of law identified

as support for action cited statutory provisions and board rul es supporting disciplinary deter mination) ; S

a n ch ez , 229 S.W .3d at 515 (stating that ag ency must “ar ticulate a rational

connec tion betwee n an underly ing ag ency policy and the altere d finding of fac t or conc l u s i on of

8law”) ; Pierce , 212 S.W .3d at 755 (dete rmining that board complied with section 2001.058(e) wher e

its order included explanation of its authority under statutes and rules of why modification of penalty

was consistent with g uidelines and bo ar d p re cedent); see Grotti , 2005 Tex. App. L EXI S 8279, at *30 (holding that board complied with section 2001.058(e) wher e order included explanation of its statutory authority ). Although in its bri ef

ing on appea l the Commi ssion cites section 1101.652 of the Occ upations Code as a basis for suspension of Gar cia’ s license, see Tex. Occ

. Code § 1101.652(b) (providing laundry

list of actions for whic h license ma y be suspende d), it made no re fer ence in its final order to that or any other statutory provision, to any Commi ssion policy , or to a ny other leg al basis for adding a two-y ear suspension based on either the seriousness or the number of violations. Nor did the Commi ssion asser t in its final o rd er t h at t he AL J failed to proper ly apply or interpre t applicable law, ag ency

rules, wr itten policies or that a prior decision should be chang ed. See Tex. Gov’t Code § 2001.058(e) (1), (2). We conclude that the Commi ssion’s explanation for modify ing the AL J ’s fin d i ng of fac t number 11 fails to meet the require ments of section 2001.058(e)

. See F roemming , 380 S.W .3d at 792–93; Brown , 281 S.W .3d at 699–700; Sanchez , 229 S.W .3d at 515; Pierce , 212 S.W .3d at 755; Granek , 172 S.W .3d at 782; Grotti , 2005 Tex. App. L EXI S 8279, at *9, *30. We sustain Garc ia’s first issue. Challenges to F ind ings of F act I n his second issue, Gar cia challeng es specific finding s of fac t. First, he arg ues that finding s of fac t numbers 6–11 are immaterial to the ag ency ’s deter mination. Finding s numbers 6–11

conce rn Moreno’ s prior purcha se of the home that was the subject of his transac tion with Z amora . 9They provide the fra mework for and include finding number 10— that in the contra ct for the prior
t ra n s ac t i o n , Gar cia used his license number, not that of his broker

. Simi larly , in finding of fac t number 22, the AL J found that in the transac tion betwee n Moreno and Z amora , Gar cia ag ain inserted his license number

for that of

his broker. F indings number s 10 and 22 show a pattern of

behavior and support in par

t conclusions of law numbers 4 and 5 that Gar cia a cted ne g lige ntly and eng ag ed i n conduct that is dishonest or in bad faith or that demonstrates untrustworthiness. S ee T ex . Occ

. Code § 1 1 0 1

. 6 5(b)( 1) (providing that Commi ssion may suspend licence if salesper son acts neg lige ntly or incompetently ), (2) (providing that Commi ssion may suspend licence if salesper son eng ag es i n co n d u ct that is dishonest or in bad faith or demonstrates untrustworthiness). Thus, finding of fac t numb er 1 0 wa s not leg ally irrele vant, and the Commi ssion’s decision was not arbitra ry or ca pricious to the extent it was based on it. See Sanc hez , 229 S.W .3d at 508 n.6. To the extent finding s numbers 6 throug h 9 and 11, which state additional fac ts about the prior sale, may be considere d irrele vant, the Commi ssion’s ultimate conclusions of law wer e not based on them, and Gar cia’ s substantial rig hts wer e there fore not prejudice d. See Tex. Gov’t Code § 2001.174(2); Gene ral Motors Corp. v. Bray , 243 S.W .3d 678, 693–94 (Tex. App.—Austin 2007,

no pet.) (holding that appellant’ s substantial rig hts wer e not prejudice d by irrele van t fi nding of fac t that was n o t b as i s of ag ency ’s conclusions of law); Ford Motor Co. v. Motor Vehicle Bd. , 21 S.W .3d 744, 766–67 (Tex. App.—Austin 2000, pet. denied) (obser ving that section 2001.174(2) preve nts court from reve rsing unless appellant’ s substantial rig hts have been prejudice d by finding s and holding that extraneous finding s unnece ssary to order did not prejudice rig hts). Consequently ,

10we ne ed n o t re ac h Gar cia’ s additional arg ument that finding of fact num ber 9 is not supported by

evidenc e. See Tex. R. App. P . 47.1.

Gar cia next arg ues that finding of fac t number 12 is n o t s u p p o rt ed by substantial evidenc e. Finding number 12 states that Moreno signe d a listi ng ag ree ment with Gar cia to sell the home for $125, 0 0 0

. Ga rc i a challeng es the listi ng price , contending that the orig inal price was $132,000, and that by ag ree ment it was reduc ed to $128,000. Howeve r, the lis t i n g agr ee ment contained in the rec ord shows a ty ped listi ng price of $132,500, with a line dra wn throug h it a

nd a hand-w ritten listi ng price of what appea rs to be $125,000. We there fore conclude that finding of fac t number 12 is supported by substantial evidenc e. See CenterPoint Energy , 324 S.W .3d at 105 n.60. Moreove r, even if the amount stated is incorre ct, it had no bear ing on the Commi ssion’s conclusions

o f l aw and did not prejudice Gar cia’ s substantial rig hts. See Tex. Gov’t Code § 2001

. 1 7 4 (2 ); Bray , 243 S.W .3d at 693–94; Ford Motor Co. , 21 S.W .3d at 766–67.

Gar cia also challeng es finding of fac t number 17 on the g round that it is not supported by substantial evidenc e. Finding number 17 states that the specia l provision contained in the listi ng ag ree m en t i s am biguous. The specia l provision states that “[c]li ent shall enter into a Buy er R ep resentation Ag ree ment and pay reta iner at time of closing ,” and the parties disag ree ab o u t t o whom “client” ref

ers. Gar cia maintai n s i t ref ers to Moreno and arg ues that there is no evidenc e that M o re n o d i d n o t know he was the “client,” that “[c]learly the ag ree ment was for the seller [, i.e., M oreno,] to pay a r et ai n er to [Garcia],” and that the onl y logic al conclusion is that “client” ref ers to Moreno. Gar cia testified that he wrote the specia l provision, that he uses that provision with buy ers who are investors as an incentive for them to continue to buy proper ty throug h him, and that

11the Buy er Repr esenta tion Agr eeme nt refe rre d to in the specia l pr ovision is a new one that Moreno

was to sig n the next ti me he pur chase s proper ty throug h Gar cia. We a g ree that one possible r eading of the specia l pr ovision is that “client” ref ers to Moreno. Howeve r, the ag ree ment does not ide ntify or define “client,” and Moreno is ide ntified as “Seller” and i s re fe rr ed to as such throug hout the agr eeme nt. Moreove r, t he agr eeme nt makes no ref ere nce to Gar cia’ s approa ch for working with investor buy ers, and, as discussed more fully below, Gar cia enter ed into Buy er Represe ntation Ag ree ments with both Moreno and Z amora , in which they

are both ref

err ed to as “client.” The list ing ag ree ment provides that Moreno, as seller, is require d
to pay Gar cia a commi s s i o n of 5% “or 4% if Gar cia is only ag ent and see special provisions .” (Emphasis added.) Thus, an alterna tive rea ding of the specia l provision in the context of the entire listi ng ag ree ment is that Moreno was to pay Gar cia, who turned out to be the only ag ent, a 4% commission if the client, buy er Z amora , signe d a B uy er Repr esenta tion Agr eeme nt and paid a
reta iner. On this record, we conclude t hat t here is substantial evidenc e to support the findi ng that the specia l provision is, on its fac e, ambig uous. See CenterPoint Energy , 324 S.W .3d at 105 n.60.

Gar cia ne x t contends t hat findi ng of fact num ber 18 is not materia l to the ag ency ’s deter mination. Finding number 18 sets out the terms of Gar cia’ s Buy er’ s Represe ntation Ag ree ment with Z amora , including a $4,000 nonref undable reta iner and a commission of the g rea ter of 4% or $4,000, plus a $275 transac tion fee

. Gar cia arg ues that the finding is immaterial beca use, as finding 2 of fac t number 37 states, the Commi ssion does not dictate what a salesper son may ch ar ge as a

Although the reta iner is ref err ed to as “nonre fundable ,” Gar cia ag ree d to ref und the reta iner 2 at closing afte r all other f ees a nd commissions were pa id.

12commission. However , finding number 18 mere ly states the terms of the tra nsaction and doe s not form the basis of any conclusion of law as t o t h e ap propriate ness of the amount of Gar cia’ s commission. Rather, finding number 18, along with finding number 15 conce rning the commission
to be paid by M o re n o , establish that Gar cia was paid by both parties for his work on the same transac tion. Finding s of fac t numbers 15 and 18 there fore support in part conclusion of law number 6 , which states that Gar cia rec eived compensa tion from both the buy er and seller withou t t h ei r consent. See Tex. Occ

. Code § 1101.652(b)( 8) (providing that Commi ssion may suspend license if salesper son rec eives compensa tion from more than one party to transac tion without full knowledg e and consent of all parties)

. Thus, finding of fac t number 18 is rele vant to t h e Commi ssion’s conclusions of law

.

I n his c halleng es to f

indings of fac t numbe rs 21 and 38 throug h 41, which all rela te to Gar cia’ s acting as an intermediar y , Gar cia contends that the fi ndings are not supported by the evidenc e. Finding 21 states that Z amora did not g ive Gar cia consent to serve as an intermediar y . I n finding 38, the C ommissi on found t hat Garcia d i d n o t n otify Moreno that he was serving as an intermediar

y in the transac tion—as require d by the listi ng ag ree ment. Finding number 39 states that Z amora did not authorize Gar cia in writing to serve as an intermediar y . Finding number 40 is tha t Gar cia brea ched his duty of fidelity to Moreno and Z amora by failing t o disclose that he was repr esenting both of them i n t h e transac tion. Finding 41 states that Gar cia brea ched his duty of fidelity to Z amora by failing to secur e her written consent to serve as an intermediar y and by putting his interests above hers. Section 1101.559(a) provides that a broker may ac t as an intermediar y betwee n parties only if he obtains written consent from eac h party and the consent states the source

13of any expected compen s at i o n to the intermediar y . See id. § 1101.559(a) (1). Har ris, the Enforc ement Division attorney , testified that only a broker may act as an intermediar y , but the broker may authorize a salesper son to act on his behalf

. She further testified that a broker or his authorized salesper son must have the written consent of both parties, g ener ally included in the listi ng ag ree ment and the Buy er Represe ntation A g ree ment, befor e an intermediar y rela tionship m ay

be esta blished. Commi ssion rule 535.156 provides that a real estate licensee has a f iduciary duty to his client and require s a license holder to put the clien t ’s i ntere st above his own. See 22 Tex. Admin. Code § 535.156(a) , (b) ( Tex. Real Estate Comm’n, Dishonesty ; Ba d Fa ith; Untrustworthiness). 3

I n complaining of finding s 21, 39, 41, and that portion of 40 that rela tes to Z amora , Ga rc i a contends that Z amora ’s initials and acknow ledg ment of a form entitled I nformation abo u t Br okera g e Servic es, which inc ludes the phra se “if the Br oker acts as a n intermediar

y ,” constitutes
consent to Gar cia’ s serving as an intermediar y . We do not find t his arg ument persua sive. Har ris testified that the I nformation about Br okera g e Service s form is an information document cre ated to explain broker ag e service s and is not to be used as a disclosure form or a repr esenta tion ag ree ment. Fur ther, even i f we wer e to construe Z amora ’s i nitials on the form as written consent, the consent had to specify how Gar cia was to be paid, whi ch the information form did not do. See Tex. Occ

. Co d e § 1 1 0 1

. 5 5 9 (a) (2). More importantly , the Buy er Represe ntation Ag ree ment betwee n Gar cia a n d Z amora —which Z amora signe d the same day as the I nformation abou t Br o kera g e Service s

All citations to Title 22 of the Texas Administrative Code are to rules promulg ated by the 3 Texas Real Estate Commission. 14form—expressly denied Gar cia intermediar y status. Thus, as Gar cia d es cr ibes it, Z amora both denied a nd authorized his status as an intermedia ry on the same da

y . Fur ther, Ga rc i a t estified that he first met Z amora at M oreno’ s proper ty and that he checked the “No I ntermedia ry Status” box on her Buy er Represe ntation Ag ree ment becaus e s h e stated that she did not want to buy the proper ty

. Har ris testified that under section 1101.559(a) (2), any chang e to the original denial of i ntermedia ry status would have ha d to be in writing

. There is

no evidenc e Gar cia revised the ag ree ment as to the intermediar y status p ro v i s i o n or otherwise obtained Z amora ’s written consent once she beca me interested in the proper ty

. Neither of the two amendments to the ag re em en t offe red into evidenc e made any ref ere nce to a chang e to Gar cia’ s intermediar

y status. Although Gar cia testified that he provided Z amora a notice of his intermediar y status and obtained her signa ture, he was unable to produce it. The Commi ssion deter mines the meaning , weig ht, and cre dibilit y to assig n conflicting evidenc e, and we may not set aside its decision beca use evidenc e was conflicting or disputed. See Sanchez , 229 S.W .3d at 511. We conclude that finding s of fac t numbers 21, 38, 41, and 40 as they rela te to Z amora are supported by substantial evidenc e. See Ce nterPoint Energy , 324 S.W .3d at 105 n.60.

As for finding 38 and finding 40 as it rela tes to Moreno, Gar cia relies on the fac t that in the listi ng ag ree ment, the “I ntermedia ry Status” box was chec ked, authorizing Gar cia to act as intermediar

y if a prospe ctive buy er tha t Garc ia re prese nted offe red to buy the prope rty . Howeve r, the copy of the listi ng ag ree ment introduced into evidenc e did not contain Moreno’ s signa ture or his initials next to the intermedi ar y status provision or on the pag e on which it was located. Fur ther,

even assuming Moreno signe d the listi ng ag ree ment, the intermediar y status provision also require d

15Gar cia to notify Moreno that he would be acting as an intermediar y and which of sever al alterna tive approa ches he would take. Gar cia testified that he provided Moreno with a notice of intermediar y form and obtained his signa ture on it but was unable to produce it. He did not testify that he advised him as to which approa ch he would take. I n any event, Gar cia does not arg ue on appeal t h at he provided More no the re quired notice , and ther e is no evidenc e that he did.

I n addition, Moreno’ s complaint descr ibes the transaction in detail and states that Gar cia prese nted him with a contra ct wit h Z amora but does not mention Gar cia’ s acting as an intermediar

y . I n addition, Moreno’ s complaint states that i t wa s after he ref used to close on the
transac tion on Fe bruar y 1 , 2 0 0 8 , that he lear ned from Z amora that she had paid sums of money to Gar cia. L ikewise, Z amora stated in her complaint that when she informed Moreno o n Fe bruar y 4, 2008, of the sums she had paid Gar cia, Moreno was “shocke d.” Ba sed on this evidenc e, it is a rea sonable infere nce that Gar cia did not provide Moreno the require d notice that he was acting

as an i n termedia

ry betwee n Moreno and Z amora . See id. We conclude that there is more than a scint i l l a o f ev i d ence to support finding of fact num ber 38 and finding num ber 40 as t hey rela te t o Moreno. See M

ireles , 9 S.W .3d at 131. 4 Gar cia arg ues that finding of fac t number 29 is not supported by the evi d en ce . Finding number 29 is that Z amora signe d a second amendment to h er Bu y er Represe ntation

As to finding s 39, 40, and 41, Gar cia also arg ues that “the applicable statutes have not been 4 proper ly applied to [Garcia],” and he “incor porate s by ref

ere nce [hi s] Br ief on I ssue o f Fiducia ry Duty previously filed with the Court.” No such brief has been filed with this Court. Although the PFD ref lects that the admi nistrative rec ord was to rema in open for approximately three wee ks following the hear ing so that the parties could file briefs on the issue of fiduciar y duty , the appellate rec ord does not contain any such b ri efs, and Gar cia has waived this arg ument. See Tex. R. App. P. 38.1(i). 16Ag ree ment that incre ased Gar cia’ s commission to 6% and require d Zam o ra to pay “an additional

$2,500.” Gar cia does not complain that the evidenc e does not support the finding that Z amora paid

5 $2,500, only that it should not have been ref err ed to as “additional.” Gar cia arg ues that beca use the first amendment to the agr eeme nt require d Z amora to pay a nonrefundable reta iner of $ 2 , 5 0 0 an d Z amora did not pay it, it was included ag ain in the second amendment. Thus, Gar cia contends, there is no evidenc e in the rec ord to support the ref ere n ce t o “a d ditional” pay ment. Howeve r, the Commi ssion made no conclusions of law conce rning the amount of commission Gar cia char g ed, and

none of the Commi ssion’s conclusions of law is based on the word “additional.” There fore , Gar cia’ s substantial r ights wer e not pr ejudiced by the Commi ssion’s use of the word. See Tex. Gov’ t Code § 2001.174(2); Bray , 243 S.W .3d at 693–94; Ford Motor Co. , 21 S.W .3d at 7 6 6

– 67. Gar cia also arg ues that beca

use the Commi ssion does not reg ulate the amount of commiss i o n a rea l estate salesper s o n m ay char g e, finding of fac t number 29 was immaterial to the Commi ssion’s d et ermination and should not have been included. Howeve r, as noted, the Commi ssion made no conclusion of law that Gar cia char g ed commission in an improper amount. Rather, the finding g oes to the fac t that Z amora made pay ments to Gar cia, not to the amount, and supports in part conclusion of law number 6 t h at Ga rc i a rec eived compensa tion from both parties without their consent in violation of section 1101.652(b)( 8). See Tex. Occ. Code § 1101.652( b)(8)

.

Gar cia next challeng es finding of fac t number 33—that Moreno ref used to close on the sale beca

use Gar cia had char g ed him more than ag ree d in the listi ng ag ree ment. Gar cia contends

When Z amora was unable to close by the ag ree d date on two occa sions, Gar cia d ra ft ed 5 amendments to her

Buy er Repr esenta tion Agr eeme nt modify ing the terms. 17the finding is not supported by the evidenc e. I nitially , we observe that this finding i n cludes a

s t atement of Moreno’ s state of mind. I n his complaint, Moreno stated that he ref us ed t o cl o s e beca use the documents ref

lected a highe r commission than s t at ed in the listi ng ag ree ment, and Gar cia does not appea

r to challeng e that portion of finding 33. Rather, he focuse s on the underly ing finding that he char g ed more commission than stated in the listi ng ag ree ment. Gar cia cites the listi ng ag ree ment provision that the commi ssion was to be 5% of t he s al es price or 4% if Gar cia was the only ag ent and More no signe d a Buy er Representa tion Ag ree ment. Be cause Moreno chose not to work with him and did not sign another ag ree ment, Gar cia arg ues, the commission ear ned was 5%. Howeve r, we have alre ady conclude d that there was substantial evidenc e to support finding of fac t number 17 that the specia l provision requiring the “client” to sign a B u y e r Re prese ntation Ag ree ment was ambiguous, and if it wer e construed t o mean that Z amora had to sign a Buy er Representa tion Ag ree ment, the commission char g ed to Moreno should have been 4%. There fore , there is more than a scintilla of evide nce to support f inding of fac t number 33. See M

ireles , 9 S.W .3d at 131. Gar cia also arg ues that finding of fac t 34 is not suppor ted by the evidenc e. Finding 34 states that beca

use Gar cia failed to keep the contra ct, rec eipts, and rec ords of Z amora ’s pay ments to him, the rec ord was unclea r as to how much Z amora paid Gar cia, but it was at least $8,070. Gar cia contends that he produce d the contra cts, rec eipts, and rec ords of pay ments at the hear ing. Howeve r, it is undisputed that Gar cia was unable to produce a copy of the contra ct for sale betwee n M o re n o and Z amora . The rec ord ref lects that Gar cia produce d a Rece ipt of Buy er Retai n er fo r 6

The recor d also ref

lects t hat (1) the copy of Zam o ra’s nonref undable retainer ag ree ment 6 admitted into evidenc e did not contain her signa ture althoug h her name was printed on the ag ree ment on the signa

ture line; (2) as discussed above, Gar cia was unable to produce any documentation that 18Z amora ’s first pay ment of $4,000, and that the second amendment t o t h e agreement contained a handwr itten notation for rec eipt of an additional $4,000. Howeve r, the notation did not indicate what the second $4,000 pay

ment was for, and Garcia testified that he g ave $1,400 of that pay ment to Moreno as Z amora ’s rent pay ment. Gar cia produce d no evidenc e of any other pay ments made by 7 Z amora under the amendments to the Buy er Represe ntation Ag ree ment. As for the amount stated 8 in finding 34, Gar cia testified that Z amora paid him $8,070, an d t h e s ettlement statement dated Fe bruar y 1, 2008, cre dited $8,070 to Z amora as her nonref undable reta iner—a lthough Gar cia’ s testimony was less than clea r conce rning what additional amounts Z amora paid to him to rea ch that total. We conclude that there is s u b s t an tial evidenc e to support finding of fac t number 34. See CenterPoint Energy , 324 S.W .3d at 105 n.60.

As with findi n gs of fac t numbers 18 and 29, Gar cia also arg ues that beca

use the Commi ssion does not reg ulate the amoun t o f commission a rea l estate salesper son may char g e, finding of fac t numbe r 34 was immaterial to the Commi ssion’s deter mination and should not have been included. Howeve r, as previously discussed, the Commi ssion made no conclusion of law that Gar cia char g ed commission in an improper amount. Rather, finding 34 g oes to G arc ia’s failure to maintain and produc e ac cura te re cords, not to the amount of hi s commission, and supports in part

Z amora had consente d to his acting as an intermediar y or any evidenc e that he had notified Moreno that he was acting as intermediar y as require d by the interm ed i ar y s tatus provision; and (3) as previously discussed, the only copy of the listi ng ag ree ment admitted into evidenc e did not contain Moreno’ s signa ture. When Z amora was unable to close by the orig inal ag ree d date, she and Moreno ag ree d to 7 a tempora ry lease

. Z amora stated in her c omplaint that she paid Gar cia a total of $16,600. 8 19conclusion of law number 4 that Gar cia acted neg lige ntly or i ncompetently in violation of section

1101.652(b)( 1). See Tex. Occ. Code § 1101.652( b)(1)

.

Next, Ga rcia challeng es finding of fac t number 35, which states that Gar cia did not ref und any of the money Z amora paid him. Gar cia contends finding 35 is irrele vant to the Commi ssion’s deter

mination beca

use the Commi ssion does not reg ulate the amount of commission

a rea l estate salesper son may char ge and beca use there is no ag ree ment or leg al require ment that Gar cia ref und all or part of the nonref undable reta iner. Ag ain, the Commi ssion made no conclusion of law that Gar cia char g ed co m m i s s i on in an improper amount. Nor is there a conclusion of law specific ally concluding that Gar cia brea ched any ag ree ment or violated any statute or rule based on his failure to ref

und money to Z amora . Finding number 35, instead, supports in part conclusion of law number 10, which states the substance of section 1101.702 (b ), listi ng fac tors to consider in deter mining the amount of an administrativ e p en al ty

. See id. § 1101.702(b). Gar cia does not challeng e concl u s i o n o f law number 10, and whether a ref und was made is rele vant to the deter mination of the amount of administrative penalt y assessed for the violations found. See id. (including license holde r’s e ffor ts to corre ct violation as fac tor to consider in de termining amount of pena lty ). Finding of fac t number 36 states that Gar cia’ s repe ated failure to disclose his sponsoring broker ’s license number and use of his license number instead on transac tion documents

was dishonest to his clients and to the public. Gar cia contends finding number 36 is not supported by the evidenc e. He points to evidenc e that he used the name Realty Gee ks as the broker ’s name and maintains that he used his license number beca use he was the desig nated rea ltor for the transac tion.

20He a

rg ues that the re fer ence to Realty Gee ks as t he broke r indicate s aff iliation with t he sponsore d broker and that both his clients had acc ess to the broker ag e information throug h his license number. He als o ar gu es t hat his conduct was consistent with industry standards and that there is no evidenc e that any one relied on his signa ture on the documents. Howeve r, Har ris testi fi ed t hat

a salesper son may not wo rk i n d ep endently of a sponsoring broker

. She explained that the 9 Commi ssion-promulga

ted forms contain spaces for the broker’s name and li cense number, with a space below for the salesper son’s name but not his license number , and a salesper son may not use his own l icense number on a contract in the spac e for the broke r’s lice nse number. She sta ted her opinion that it is inacc urate to do so and that it is dishonest to convey to members of the public, such

as mortg ag e companies, attorney ’s closing office s, and title companies who rec eive and revie w the documents, that the license number listed is that of a broker

. See id. § 1101.652(b)( 2) (Commissi on may suspend license if licensee eng ag es in dishonest conduct) ; 22 Tex. Admin. Code § 535.156(d) (license holder has duty to convey acc urate information t o members of public). Ha

rris also stated that a salesper son’s use of his license number is misleading or at least neg lige nt beca use a licensed

rea ltor should know t his basic requireme nt. See T ex . Oc c. C ode § 1101.652(b)( 1). We conclude that there is substantial evidence to support finding of fac t number 36. Gar cia also arg

ues that finding s of fac t n u m b ers 43 and 44 are “vag ue and unsupported by the evidenc e.” Finding number 43 is tha t G arc ia made no eff

ort to be acc ountable for or to corr ect “these violations.” Gar cia contends that it is unclea r what violations finding number

Section 1101.351(c) provides that a licensed salesper son may not act as such unless he is 9 associate d with a license d broker

. See Tex. Occ. Code § 1101.351( c). 2143 ref

ers to. Howeve r, rea d in context, it i s ev ident that “these violations” ref ers to the conduct outlined in the p re v i ous finding s of fact, i ncluding , for ex ample, findings num bers 40 and 41 that Gar cia brea ched his fiduciar y duties to Moreno an d Z amora . Finding number 44 states that
assessment of a $17,000 administrative pena lty would ref

lect the seriousness of the violations a nd deter future violations. Gar cia contends that nothing in the PFD or the rec ord indicates any g uidel i n es to justify the appar ently arbitra ry penalty

. Yet conclusion of law number 9 cites the statutory authority for assessment of an administrative penalty of up to $5,000 per violation per day

. See id. § 1101.702(a)

. L ikewise, conclusion of law number 10 sets out the fac tors to be considere d in deter mining the amount of an administrative penalty , as set out in section 1101.702, including the

s eriousness of the vi olation and any eff orts to corr ect the violation. See id. § 1101.702(b)( 1), (4)

. The AL J also set out specific amounts for eac h of the violations found. Section 1101.702 provides for the Commi ssion’s adoption of a schedule of administrative penalties based on the criter ia listed in subsection (b). See id. § 1101.702(c) ; see a l s o 2 2 T ex . Ad min. Code § 535.191 (Schedule of Administrative Penalties) (providing for rang e of p en alties). Having conclude d that the finding s prec eding finding 43 are supported by substantial evidenc e, acc epting as established the unchalleng ed find i n gs , and considering the discretion aff orded the Commi ssion in deter mining
t h e amount of penalty within an authorized rang e, we further conclude that finding s 43 and 44 are not improperly vag ue and are supported by the evidenc e. S ee CenterPoint Energy , 324 S.W .3d at 105 n.60; Madden v. State Bd. for Edu ca tor Certification , No. 03-11-00584- CV, 2014 Tex. App. L EXI S 5444, at *12 n.4 (Tex. App.—Austin May 22, 2014, pet. denied) (mem. op.) (c i t i n g Helbing v. Texas Dep’t of W ater Res. , 713 S.W .2d 134, 137 (Tex. App.—Austin 1986, no

22writ) (ac cepting a s e s ta b lishe d unchalleng ed finding s in ag ency ’s final order )). We overr ule Gar cia’ s second issue. Challenges to Conclusion s of L aw

I n his third issue, Gar cia challeng es specific conclusions of law. First, he complains of conclusions of law numbers 4 throug h 8, which conclude that Gar cia violated specifie d provisions of the Occ upations Code and Commi ssion rules

. T hese conclusions all beg in with the phrase “[b] ased on the Finding s of Fa ct

. . . .” Gar cia contends that they are vag ue as to what conduct the Commi ssion deter

mined violated the statutory and reg ulatory provisions beca use they do not specify which finding s of fac t form the basis of e ach c onclusion. Howeve r, Ga rcia cites no statute or rule that require s the Commi ssion to identify which specific finding s of fac t support eac h conclusion of law, and w e know of

none. Gar cia also arg ues that conclusions of law numbers 4 throug h 8 are not supported by the evidenc e. We do not fi n d t h is arg ument persua sive. Conclusion number 4 states that Gar cia violated section 1101.652(b)( 1) by acting neg lige ntly or incompetently

. S ec t i o n 1101.652(b)( 1) provides that the Commi ssion may suspend a license if the holder acts neg lige ntly or incompetently

. See Tex. Occ. Code § 1101.652(b)(1). Conc lusion of law number 4 is supported by unchalleng ed finding s of fac t numbers 13, 16, and 22, as well as by finding s 10, 17, 21, 34, 40, and 41, which we have conclude d are supported by substantial evidenc e. These finding s include that Gar cia could not produce cer

tain reque sted documents, including a copy of the listi ng ag ree ment signe d by Moreno; improperly used his license number rathe r than that of his sponsoring broker ; draf ted an ambig uous specia l provision; failed to obtain Z amora ’s consent to act as an intermediar y ; and failed to disclose

23to Moreno and Z amora that he was acting as an intermediar y . I n addition, Har

ris testif i ed t h at a licensee’s draf

ting a contra ct with ambig uous terms and using the I nformation about Br okera g e Service s form as a disclosure form or repr esenta tion ag ree ment both constitut e n egl i g ence or incompetenc e in violation of section 1101.652(b) (1).

Conclusion number 5 conclude s that Ga rcia violated section 1101.652(b)( 2) by eng ag ing in conduct that is dishonest, in bad faith, or that demonstrates untrustworthiness. Section 1101.652(b)( 2) prov id es that the Commi ssion may suspend a license if the holder eng ag es in conduct
t h at is dishonest or i n bad faith or t hat demonst rate s untrustworthiness. See id. § 1101.652(b)(2 ). Conclusion of law number 5 is supported by unchalleng ed finding s of fac t numbers 13, 16, 22, 31, and 32, as well as by finding s 10, 17, 21, 33, 36, 38, 39, 40, and 41, which we have deter mined are supported by substantial evidenc e. The Commi ssion’s deter minations in these finding s include that Moreno’ s signa ture is not on the listi ng ag ree ment an d t h at Gar cia draf ted an ambig uous specia l provision; failed to disclose his intermediar y status to Moreno and Z amora , in particula r failing even to obtain Z amora ’s consent to act as an intermediary ; used his license number as if he wer e the broker; an d fa i l ed to make clea r who was pay ing him and in what amounts. I n addition, Har ris testified that a licensee who draf ts a contra ct with ambig uous terms violates section 1101.652(b)( 2). And the rec ord ref

lects that the listi ng ag ree ment states a price of $125,000, b ut Gar cia allowed Z amora to offer $127,000, as re flec ted in the settlement statements. 1 0

Two settlement statements we re ad m i t t ed into evidenc e. When the transac tion did not 1 0 close by the ag ree d date, a

revised se ttlement statement was pr epar ed.

24I n conclusion of law number 6, the Commi ssion deter mined th at Gar cia violated section 1101.652(b)( 8) by rec eiving compensa tion from both the buy er and the seller without their
consent. Section 1101.652(b)( 8) provides that the Commi ssion may suspend a license of the holder who rec eives compensa tion from more than one party without the full knowledg e and consent of all parties. See id. § 1101.652(b)( 8). Conclusion number 6 is supported by unchalleng ed finding s of fac t numbers 23, 26, 31, and 32, as we l l as b y fi ndings 29, 33, 38, 39, 40 and 41, which we have conclude d ar e s u p p o rted by substantial evidenc e. These finding s include that Gar cia draf ted documents ref

lecting that both Mor eno and Gar cia wer e to pay him; that Moreno did pay him; and that Gar cia failed t o disclose t hat he was repre senting both partie s . As n oted above, the evidence also showed that Moreno stated in his complaint that he lear ned Z amora had paid money to Gar cia afte r he ref

used to close on the transac tion on Fe bruar y 1, 2008, and Z amora stated in her complaint
t h at Moreno was “shocke d” when she told him on Fe bruar y 4, 2008, of the money she h ad p ai d Gar cia. The evidenc e also shows that Z amora ’s Buy er Represe ntation Ag ree ment did not disclose Gar cia’ s compensa tion ag ree ment with Moreno. Although Gar cia testified that he told Moreno and Z amora that he was rec eiving compensa tion from both, we defe r to the Commi ssion’s deter mination when evidenc e is conflicting or disputed. See Sanchez , 229 S.W .3d at 511. Fur ther, Har ris testified that parties need to know what compensa tion the broker is rec eiving when they enter their contra cts with the broker so that t h ey can eng ag e in informed neg otiation, and if neither the buy er nor the

s ell er is made awa

re of compensa tion being paid by the other, that is a violation o f s ec t i o n 1101.652(b)( 8).

25Conclusion of l aw number 7 is that Gar cia violated section 1101.559( a) (1 ) and (c)

by acting as an inter

mediary without the written consent of both parties and by

failing to act fa irly and impartially for both parties. Section 1101.559(a) provides that a broker may act as an intermediar

y if he obtains wr itten consent fr om eac h party

. See Tex. Oc c. Code § 1101.559(a) (1). S ec tion 1101.559(c) provides that an intermediar y shall act fairly and impartially

. See i d

. § 1101.559(c)

. Conclusion number 7 is supported by unchalleng ed finding s of fac t numbers 14 and 20, as well as finding s 21, 38, 39, 40, and 41, which we have conclude d are supported by substantial evidenc e. These finding s include that Gar cia failed to obtai n Zamora’s consent to act as an intermediar

y ; to noti fy Moreno that he was acting as an intermediar y ; and to disclose he was repr esenting both parties. I n addition, Har ris testified that failing to disclose that the broker is

rec eiving compensa tion from both parties violates sec tion 1101.559(c).

Conclusion of law number 8 states that Gar cia violated Commi ssion rule 535.156(d) by failin g t o provide the public with acc urate information reg arding his sponsoring broker

. Rule 533.156(d) provides that a license holder has a duty to convey acc urate information to members of the public with whom he deals. See 22 Tex. Admin. Code § 535.156(d). Conclusion 8 is supported by unchalleng ed finding 22 and finding 36, which we have deter mined are supported by substantial evidenc e. These finding s show that Gar cia had a pattern of improperly substitut ing his lic en s e number for

that of his sponsoring broker , which Ha rris testified is inacc urate

. 1 1

Gar cia also contends in a single sentenc e as to eac h challeng ed conclusion of law that “the 1 1 cited statute has been improperly applied to [hi m] .” Howeve r, he offe rs no arg ument or citation to authorities or to the re cord a nd has there fore waived this ar g ument. See Tex. R. App. P . 38.1(i).

26We con cl u d e t h at conclusions of law numbers 4 throug h 8 are supported by

substantial evidenc e. See Froemming , 380 S

. W

. 3 d at 790–91, 794; Pierce , 212 S.W .3d at 751. Acc ording ly , we ove rrule G arc ia’s third issue.

CONCLUSION We conclude that the Board failed to comply with section 2001.058(e) of t he APA in modify ing the AL J ’s rec ommended sanction to include a two-y ear suspension. Acc ording ly , we

reve rse and rema

nd to the Boa

rd for further proce eding s consistent with this opinion. We aff irm the trial court’ s judgme nt in all other respe cts.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med in Part; Reverse d and Remande d in Part Filed: May

27, 2016

27