¶1(concurring).
¶2The function delegated to the Board of Appeals in this case was essentially legisla-, tive in nature, not judicial. Texas Vending Com’n v. Headquarters Corp., 505 S. W.2d 402 (Tex.Civ.App., Austin, 1974, error ref. n. r. e.), and cases therein cited. Thus, the trial court’s review of the Board’s order could be made only under the substantial evidence rule of procedure; and, the only issue to be decided by the court upon which evidence was heard properly was the reasonableness of the Board’s order. That presented a question of law, for, as was said in Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 623 (1958): “[T]he legal test of the reasonableness of an order of an administrative agency is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence.”
¶3Findings of fact by the trial court so common to the ordinary civil suit tried de novo have no place in a case tried under the substantial evidence rule of procedure. The plaintiff labored under the burden of showing, if he could, that the order was not supported by substantial evidence. Findings of fact based upon conflicting evidence will not suffice to discharge the burden. Cf. Live Oak County v. Lower Nueces River Water Supply District, 446 S.W.2d 14, 27 (Tex.Civ.App., Beaumont, 1969, error ref. n. r. e.).
¶4Upon appeal, “[t]he record is to be considered as a whole; and being a question of law, it is for this court to determine what is to constitute such evidence.” Railroad Commission of Texas v. Manziel, 361 S.W.2d 560, 565, 93 A.L.R.2d 432 (Tex.1962). See also, City of San Antonio v. Texas Water Commission, supra (407 S.W.2d at 758).
¶5Justice STEPHENSON has reviewed the record under the correct standard, i. e., the substantial evidence rule, and I concur in his evaluation thereof and in the judgment entered.