*1 when, in Texas Supreme 1861 the Court Talk,
in Austin v. Tex. stated:
“ * ** positive Upon
fraud, very to dis- court will be slow evi- jury
turb verdict of a where the suspicious
dence discloses circumstances
aof character to induce the belief that misrepresen- artifice, concealment or
tation, practiced, has been that con- reposed
fidence has been abused
prejudice party complaining. )> n * * case,
Under circumstances this jury’s
court not hasten to disturb except
verdict as we must.
The judgment of the court trial re-
formed to fix the sum of damages actual
tort $1,217.88 at lieu $766.90 in- therein, reformed, and,
cluded is affirm-
ed. BLOOM, Appellant,
Wallace
The TEXAS STATE EXAMIN BOARD OF ERS OF and Carl PSYCHOLOGISTS Hereford, Appellees. R.
No. 11870. Appeals
Austin. 5, 1972.
Jan.
Rehearing 26, 1972. Denied Jan. *2 Yeakel, III, Mitchell, Earl L.
Arthur Austin, appellant. Gen., Martin, Atty. Alfred C.
Crawford Gen., Walker, Atty. Nola Executive Asst. Davis, Gen., White, Atty. C. First Asst. J. Austin, Gen., Attys. Bailey, Pat Asst. appellees.
PHILLIPS, Chief Justice. appeal order of the This is below, jury, denying sitting without a court a writ of mandamus issuance of Psy- of Examiners of Texas State Chairman, them ordering chologists its psychologist un- and Li- Psychologists’ der the Certification duly perfected censing Act. appeal Court. We affirm. point of error is that of
Appellant’s first refusing issue the above court scribed writ. questions before this Consequently, the point.
Wе overrule this point of er- Appellant’s first Court under (Supp.1970-71) Article are, first, ror does the Texas State provides Vernon’s Annotated Statutes Psychologists have Examiners psychologist pas- for certification as a denying certification under discretion *3 pre- sage of written and oral examination Psychologists’ Certif- 15(b) Section of by scribed Board of Ex- Texas State Licensing Act reasons oth- ication and body Psychologists, of a created aminers specifically by the er than those stated however, provides, by this Act. The Act Section, Legislature ques- in this to which for certification without examination if the and, does; secondly, tion it we answer that applicant meets certain educational and hérein, has the abused its discretion professional requirements. it has question which answer that Applicant March of appli- In 1970 made not. psychologist
cation for as a certification legal appli- under Section of the Act. contends that it 151 This duty certify Appellant cation for as a certification without examina- of the Board psychologist tion examination was denied. further without requirements of inasmuch as the Section parties agreed to this lawsuit are met; require- 15(b) these have been Applicant has fulfilled all the re- of and by Legislature ments out were set quirements for licensing without an exami- pow- give that the Act does not the Board natiоn including require- the educational requirements er to further the enlarge respect, Appel- ments. In this latter while certification. automatic degree op- lant’s Ph.D. is in education as posed psychology, record reflects no agree Appellant’s with inter We do not graduate fewer than hours of level 127 pretation v. Far of the Act. In Hereford in psychology courses and education rar, (Tex.Civ.App.1971, 469 16 writ S.W.2d chology. In addition he has worked as e.), held that the board ref. n. this Court r. Psychologist Chief at the Child Guidance had the to de discretion under Sec. Clinic, Base, Force An- Lackland Air San degree based on cide master’s what was a tonio, Texas, Psychologist as Clinical Staff program primarily psychologi a which is Hospital at the in Porterville State Cali- licensing Farrar, applicant for cal. In fornia, and as Psychologist Industrial to his credit claimed that certain courses Corporation. Technology In United entitling primarily psychological thus were many belonging addition to associations c licensing. The Boаrd him to automati connected with psychology, has were not ruled that the courses taught courses psychology in the field at of re and primarily psychological Lady College of An- Our the Lake San examina quested applicant to take an tonio, College Texas and Fresno State position. upheld the Board’s Bakersfield, tion. We California. psychological gram primarily Psychol or pertinent provisions 1. The of equivalent in both Licensing ogists’ thereof the substantial and Act are Certification and, training, subject extent and as follows: “(b) years profes- addition, three person had has a Until December satisfactory twenty-one years age, sional Board, at who is lеast state, good moral a resident (2) ac- from an character, master’s has a and a citizen of United program a legally based credited institution his inten- or lias declared States and, psychological primarily may, becoming which is a citizen tion years eight profes- addition, had plication payment of the certification experience.” Tex. fee, sional be certified without Art. psychologist Rev.Civ.Stat.Ann. as the Board a (Supp.1970). (1) he has a doctor’s pro- based a accredited institution goes further than examination for accredi- The case at bar tization in California In Appellant, admittedly, has failed it. Farrar since addition, it, the Board had a letter before complied requirements with the enumerated Peck, professor written Dr. Robert a note that 15(b) (2). We Sec. Psychology University Educational at The states that “Until December of Texas. The letter dated March person . may . . ... certified 1970,is, part, (Emphasis follows: without . . . added). “may” ordinarily The word im- expelled “He was from the doctoral pliеs permissive discretionary force. program in Psychology Educational after Dictionary,
Webster’s New International lengthy evaluation. This was done on Second Edition. treated as It not be grounds that he was in a state of se- word of command unless there is some- *4 rious mental and emotional disturbance thing in the subject context or matter of аcknowledge that he refused to the‘act to indicate that it was used in that appropriate steps and take remedy to the Herring, sense. Rains v. 68 Tex. problem. know, So far as I he not (1887). S.W. 369 shown improvement evidence of since that time. indicating
Further the intention Legislature of the to vest discretion the Finally, deep-seated because of Board, the na- Section 8 “In states addition to the ture of his disturbance at the he powers time granted and duties the Board here, pending extremely convincing provisions Act, other of this the Board evidence to contrary, the I would consid- may make all rules . . . which are rea er him too highly subjective judg- in his sonably necessary proper рerform for the ment practice to be able to professionally ance of its duties ...” Section 13 in a responsible and ethical manner. I determining “In states: the acceptability do expect not mean that I would him to applicant’s professional of the experience, knowingly act an unethical or irre- require the mаy Board documentary such sponsible way might but that not be he evidence quality, of the scope and nature able help doing very I feel so. applicants’ the as it deems strongly indeed that he should denied necessary.” purpose The of this Act is to (Emphasis added) protect public the unqualified from practi certification.” in the tionеrs field of psychology. Thus trial, At Dr. Peck testified as follows: Board, grants the Act the regulates “ . graduate . . faculty as a whole field, highly specialized necessary concluded that right, it would not be discretion to effect purpose for which give our stamp approval someone it require was created. To the Board to who could nоt effectively deal with the applicant solely upon prima public give good responsible them a specified showing 15(b), facie professional service, upset if something disregard of other evidence him.” unacceptability, would do violence to the Act as a whole. It is settled that Ap- testimony discloses that The at trial cоurts should first endeavor to ascertain for doc- oral examination failed his legislative general intent from a view psychology at The toral Univer- Tex.Jur.2d, the whole enactment. 53 He, evidently, passed had sity of Texas. 125, 182, p. Statutes. required examination. written Appli- that while further discloses
evidence passed written examination ques cant had brings us to the second This in Califor- certification abused its dis tion of whether the Board on two nia, the oral examination evidence he failed cretion in this case. There was taken different occasions. had before the Board requested Appellant to Hereford, of the reason” the Board R. Chairman Dr. Carl Hereford said Psycholo- take the examination. Dr. Texas Board Examiners letters from major also that the Board “other three gists stated that there were not to other individuals well.” that caused the considerations exami- further grant certification without Farrar, our decision in cited Under The first oral both and written. nation above, hold that the trial court was cor- training, about question about his was the refusing to of manda- rect in issue a writ in na- being not Appel- compel to issue mus ture, fin- failure to and the reason for his lant license the Board has inasmuch as department of educational ish clearly in this abused its discretion reason concerned chology. The second matter. concerning up brought Peck matters Dr. third stability. The and mental record emotional This discloses that when independent that he re- certify Appellant reason was Board refused to practice psychology quested in violation li- him to take an Ethics, Psychological Code censing, American took the consented and June, 1970, the American he was member of when but failed to Psychological passing grade. position Association. make a Due to the *5 we have taken in we need not this case under Dr. Hereford further testified that question consider the of whether “grandfather 15(b)] the the clause” [Art. he right might waived have had under policy appli- if an Board’s that been by 15(b) taking Section the examination. clearly by qualified cant should be both is, training experience, and that when points two, three, Appellant’s and mind, no doubt Board’s there was in the constitutionality four the attack of Section train- good, reference letters were all the not 15(b). points, consider these We experience clearly psychological, ing was as to show how the failed clearly supervision and adequate, him, validity of harm 15(b) Section would nature, in psychological and conversely, invalidity how would its the Board would such an individ- consider Ammerman, 233 benefit him. O’Brien v. required having ual met the standards as (Tex.Civ.App.1921), 112 Tex. S.W. 1016 clause,” by “grandfather the and law for (Tex.1922), English 270 S.W. the Board would issue certification. Knox, Freight Co. v. 180 S.W.2d m.). We ref. w. o. (Tex.Civ.App. err. hand, the other Hereford testi- On Dr. interest in justiciable he has no hold that fied, training and are constitutionality section of this clearly in nature or un- law. reason, satisfactory for then some other Further, application is denied. Dr. as said, event are incorrect In the we application,
Hereford
if the
standing
the consti
Board,
aрpellant’s
attack
opinion of the
be-
falls somewhere
that the
is,
tutionality
we hold
areas;
15(b),
is
of Sec.
tween these two
if there
overrule
constitutional. We
part
provision
a reasonable
on the
15(b) violates
Board,
Appellant’s point that
part of its
then the
Board seeks
and Fed
process clauses of
due
the State
obligation
obtain informa-
under
law to
provisions
are
that no
eral Constitutions
through
tion
written
oral examination.
com
appeal. Without further
made for
agreed
questioning
Dr. Hereford
under
appeal is
case,
Appellant’s
fact that
that,
the ment on the
Appellant’s particular
us,
proc
note that due
presently beforе
Applicant’s
concern
by
Board’s
created
review
implies
right
judicial
ess
pass
failure to
a California
provided
order if not
an administrative
and the information made available
Loan
Brazosport Savings “part of the
statute.
Board Dr. Peck constituted
is,
Savings and Loan
Ass’n. v. American
cretion. The Board’s discretion
how-
ever,
Ass’n.,
747. Nor
161 Tеx.
342 S.W.2d
limited to that determination. The
impressed
Appellant’s
upon
asser-
are we
fact that Section 8 of the Act confers
be-
power
prescribe
unconstitutional
tion that Sec.
the Board the
rules and
uncertainty. The
vagueness
regulations,
enlarge
power
cause of
does not
are of sufficient
Additionally,
nothing
terms used
there is
Bоard.
discipline
be rea-
certainty under that
as to
in the record that
the Board has even
sonably
County
adopted any
regulations,
of Cameron
much
ascertainable.
rules and
Wilson,
pursuant
denying
point
unequal in its
that Sec.
An exаmination
of the record
plication
persons
it is
to those
to whom
case
reveals no evidence
applied
sought to be
and therefore consti-
appellant
Board could have concluded that
delega-
tutes an unlawful or unauthorized
was of bad moral character. The fact that
legislative authority.
tion of
Gеrard v.
appellant
licensing
failed the
Smith,
(Tex.Civ.App.1932,
The “orals” examinations nearly spring majority occurred not seen years ago,
ten and Peck has obscure and It is this since. appellant is de-
amphibolous testimony that
nied his certification. appellant’s suggest angry
I would pass the “orals”
conduct over his failure to examination, perhaps
cоmmittee’s while “extremely good gentle for taste academics,
non-high pressured” was not entirely point, Peck’s unnatural. Past Anderson, Shields, Henley, Bradford & course, testimony, nothing whatever Pritchard, Dallas, appellant.' character, ei- appellant’s to do moral Barr, Dallas, appellees. Burt good ther or bad. requirements having met the DIES, Chief Justice. legal duty Article a Williamson, the natural mother Sandra part arose on the of the Board to minor, Eschrich, filed Kevin William psychologist, him as a and I would reverse 29, 1971, petition April change the and direct that writ Williamson, minor’s name the name of mandamus be issued. petition her The second husband. filed in 162nd District Court Judicial petition grant- County. Dаllas 1971, judg- April
ed on and from father, William ment the minor’s natural Eschrich, appealed. Jr., H. it is not states in his brief —and since ESCHRICH, Appellant, William H. un- by appellees may take it as true nied Proce- der Rule Texas Rules April there was dure —that on ux., Wesley John et WILLIAMSON Appellees. Dallas Coun- trial *7 Juvenile her ty in which Williamson Sandra No. 7313. adopted minor sought have the husband Appeals of Civil husband, Ap- Williamson. her second Beaumont. in its brief —not further states 13, April Jan. 1972. by appellees nied —that adoption denied. petition Rehearing Denied Jan. 1972. changing the minor’s notice his name was obtained without father, appellant. natural Ann.Civ.St., pro- Vernon’s Art. vides : be to the interest
“Whenever it shall name, change minor guardian or next friend of said minor application in the district shall file his county said minor’s resi- court of the dence, change for the alleging the reason