Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent.
No. A-10105.
Supreme Court of Texas.
Nov. 11, 1964.
Rehearing Denied Dec. 31, 1964.
The judgments of the Court of Civil Appeals and of the trial court are reversed, but in the interest of justice the case is ordered remanded to the trial court for another trial.
Davis & Gray, Houston, for petitioner.
Waggoner Carr, Atty. Gen., Austin, Malcolm Quick and Wm. Morse, Jr., Asst. Attys. Gen., for respondent.
STEAKLEY, Justice.
Acting under
“On this the 18th day of August, 1962, came on to be heard before the Texas State Board of Medical Examiners, duly in session, a certain complaint filed with the Board on the 26th day of July, 1962, in which it was complained that Daniel William Scott, Jr., M.D., had violated the provisions of Sub-Divisions (4), (5), and (12) of Article 4505, Revised Civil Statutes of Texas, 1925, as amended, such violation being grounds for the cancellation, revocation or suspension of the license to practice medicine in the State of Texas, by Daniel William Scott, Jr., M.D., and the said Daniel William Scott, Jr., M.D., of Houston, Harris County, Texas, having appeared in person and through his Counsel, Mr. William Dorman, and the said charges and complaint having been read, and the evidence on said complaint and charges having been introduced and heard, and after consideration of the charges and evidence, the Board is of the opinion that the charges contained in the complaint are true in so far as said charges relate to prescribing and administering amphetamine, amphetamine derivatives and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to known addicts, and also in so far as said complaint relates to prescribing and administering amphetamine, amphetamine derivatives, and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to patients of Daniel William Scott, Jr., M.D., under conditions which said Daniel William Scott, Jr., M.D., knew or should have known there was no therapeutic need for such patients, therefore
“IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the license to practice medicine within the State of Texas, heretofore held by Daniel William Scott, Jr., M.D., be revoked and cancelled.
“Rendered and entered this 18th day of August, 1962.” (Emphasis added)
The Board recognizes that the findings in the above order do not support a revocation under Subdivisions (5) and (12) of
Scott appealed the order of cancellation to the district court. The court ruled that the case should be tried pursuant to the appeal provisions of
The jury was instructed “that a duly licensed medical doctor holding a valid federal narcotic license is legally and medically authorized to prescribe narcotic drugs to his patients, whether or not such patients are known to be addicted to the use of such drugs, if, in the opinion of such medical doctor the giving of such drugs is of therapeutic value in the treatment of such patients.” This instruction comports with the provisions of the
The jury found that Scott prescribed the drugs to persons known to him to be addicted to one or more of them; that Scott in the exercise of ordinary care should have known that the persons for whom he prescribed the drugs were addicted to one or more of them; and that the conduct represented by these respective findings constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public.
The trial court, however, granted Scott‘s motion for judgment non obstante veredicto and entered judgment denying the Board the right to cancel his license. The Court of Civil Appeals reversed and remanded the cause for a new trial.2 It held unconstitutional the appeal provision of
It is the basic position of Scott that the requirement of
The basic position of the Board is that the Court of Civil Appeals correctly held the appeal provision of
In the enactment of statutes governing the qualifications to practice medicine in Texas, the Legislature is exercising an expressly granted constitutional authority.
“The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any school of medicine.”
The present statutes stem from an Act of the 29th Legislature in 1905 prohibiting malpractice and frauds in the practice of medicine and providing for revocation by the District Court of the license to practice medicine;3 and from the Medical Practice Act of 1907.4
Section 11 of the 1907 Act, which became
In 1939 major revisions in the Medical Practice Act were enacted.6 As relevant here, present Subdivision (4) was made a part of
It is to be further noted that the right of revocation of a medical license (as distinguished from a refusal to issue a license initially) was by the 1939 amendments limited to the district courts. But in 19537 the Legislature repealed
“Any person whose license to practice medicine has been cancelled, re-
voked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board. The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides. * * *”
In the type of appeal thus required the court tries the issues anew. The burden of proof in sustaining the order is upon the administrative agency. Whether by the court or a jury, fact questions are resolved by a preponderance of the evidence. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); State by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839 (1960); Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961).
In the reported cases since the 1953 amendments, the State Board of Medical Examiners does not appear to have attacked the constitutionality of the appeal provisions of
It is seen from the legislative history of the Medical Practice Act that from the beginning the revocation of a medical license has been committed to the district courts as a judicial function. It has been traditionally so. It is still an original function of the district courts under present
We recognize that there are differences in the wording of the subdivisions of
Accordingly, we sustain the constitutionality of the de novo appeal requirement of
The Board itself found Scott guilty of two types of acts. These were the prescribing of narcotic drugs for known addicts, and the prescribing of narcotic drugs for patients having no medical need therefor. Only the former was submitted to the jury which found that Scott did prescribe narcotic drugs to persons whom he knew, or should have known, were addicts. There is evidence to support these jury findings. But the question is whether the acts represented by these findings, standing alone, and in the absence of evidence that the persons receiving the drugs had no medical need therefor, constitute acts and conduct which are grossly unprofessional or dishonorable and of a character likely to deceive or defraud the public. We hold that they are not. The
In its original application for writ of error the Board asserted by point of error that the Court of Civil Appeals erred in remanding this case for a new trial. Its argument thereunder was that its order has reasonable support in substantial evidence. In its post-submission brief the Board argues further that the evidence supported the jury findings and that a judgment based thereon, and affirming the action of the Board, should have been entered by the trial court “in the interest of the public.” It is argued that the case for the Board is established by proof that Scott prescribed narcotics on the numerous occasions shown to persons already addicted, and by the failure of Scott to testify in justification of his conduct.
We also mention that neither the
The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.
GRIFFIN, J., dissenting.
SMITH, Justice (concurring).
I concur in the holding that the revocation of a medical license has been committed by the Legislature to the district courts as a judicial function. The revocation of a doctor‘s license by a state agency is primarily a quasi-judicial function. While the Court in the present case has held that the trial court correctly ruled that the appeal from the order of revocation of the Board was to be tried de novo, and that the burden of proof was upon the Board, etc., yet, the Court, by way of dicta, seems to advance a new theory and a new test which would further complicate an already complex problem. Of course, it is true, as Mr. Justice Holmes once pointed out, the business of
The Court‘s holding that “[t]he validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers,” coupled with the dictum-“We would have no difficulty in holding that the acts and conduct of a medical practitioner in prescribing narcotic drugs in medical bad faith would support the revocation of his license under Subdivision (4) of Article 4505,” indicates to me that if testimony by experts in the field of medicine had been introduced, establishing that Scott had acted in medical bad faith, the Court would hold that the Legislature did not intend to provide for a trial de novo upon a conviction under subdivision (4) of
“It is concededly a serious matter to strike down duly enacted legislation as being unconstitutional. It is perhaps an equally serious matter to hold that the Legislature did not mean what it said. The problem of statutory construction is to ascertain the intent of the Legislature. When we abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best. It should perhaps be reiterated that Courts have no concern with the wisdom of legislative acts, but it is our plain duty to give effect to the stated purpose or plan of the Legislature, although to us it may seem ill advised or impracticable.”
This Court, in Key Western, quoted with approval the above pronouncement. It is my view that if the Court will give effect to the stated purpose of the Legislature, it will eliminate all suggestions that there possibly could be a way to circumvent the stated purpose, and will give to all doctors charged with a violation or violations the same fair and impartial trial under proper de novo proceedings.
To me, there is a close analogy between Key Western and this case. We have the question: Is the Board exercising legislative power in revoking a license, or is it performing a semi-judicial function? This question was sufficiently answered in Key Western when it was said:
“Therefore, the Board * * * could exercise no more discretion than the terms of the statute clearly provide, and it appears from a literal reading of the statute that the Board was not to have broad legislative discretion. The Board of Insurance Commissioners is empowered to disapprove a form for certain specific reasons only and may not dictate to the insurance companies the particular form to be used. Its only duty is to determine whether the form of the
policy submitted for its approval meets the standards prescribed by the statute. The action of the Board of Insurance Commissioners ‘is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.‘” (Emphasis added.)
Clearly the Board‘s action is “particular and immediate, rather than * * * general and future in effect.” The primary duty of the Texas State Board of Medical Examiners, under
In Key Western, this Court cited with approval the holding of the United States Supreme Court wherein it was said:
““A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.’ Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150.”
In Key Western, in holding that the determination made by the Board was not the exercise of legislative discretion, this Court rejected the contention that the case of Davis v. City of Lubbock, (1959) 160 Tex. 38, 326 S.W.2d 699, was controlling. Key Western was a direct appeal. In connection with our analysis of the Davis case, we said:
“Appellee fails to appreciate that there is a distinction between the types of decisions rendered by different administrative agencies. Some agencies perform judicial or quasi-judicial functions; others exercise powers which are essentially legislative. In re Harmon, 1958, 52 Wash.2d 118, 323 P.2d 653.”
This Court pointed out that in Davis we said:
““* * * it is quite clear that a decision that it [a particular area] is a slum area under (3) of the definition is a decision of a question of pure public policy.’
“‘A decision or conclusion by the agency that a particular area is a “Slum Area” or a “Blighted Area” is thus made to rest upon a finding involving legislative discretion. A de novo judicial review of such a decision would clearly involve the exercise by the courts of nonjudicial powers.’ (Emphasis added.) 326 S.W.2d 699, 714.”
It is to be noted that the concurring opinion in Key Western states that under
In June, 1963, this Court rendered its opinion in the case of Chemical Bank & Trust Company v. Falkner, Tex., 369 S.W.2d 427. Contrary to the argument of some, the judgment in Chemical did not modify or overrule our opinion and judgment in Key Western rendered in October, 1961. This Court in Chemical clearly distinguished Key Western in disposing of the argument that Chemical was controlled by Key Western. The Court said:
“It is contended that the Key Western case laid down a broad rule for determining whether a function of an administrative agency is judicial or legislative. The court said that judicial action is ‘particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect.’ * * * The heart of the decision in the Key Western case was that the statute did not give the Insurance Board legislative discretion in approving insurance policies.”
The dissenting opinion in Chemical, however, seems to have selected our approval in Key Western of a holding in a Minnesota case, State ex rel. Patterson v. Bates, 96 Minn. 110, 104 N.W. 709, as being the heart of the Key Western case. In Chemical, this Court did not accept the dissenting view that the question of whether there is a public need for a bank in a given area is a pure fact question-one which a trial judge or jury could decide on evidence available for introduction in court.
In Chemical as in Key Western this Court recognized that there is a distinction between the types of decisions rendered by different administrative agencies. In view of the analysis of Key Western in Chemical, I cannot conceive of a logical reason for rejecting a holding in this case that the doctor is entitled to an adjudication of his rights under de novo proceedings.
The holding in Key Western is neither new nor novel. Since the writing of Key Western, this Court has caused further research to be made in an effort to find additional guide lines for determining the perplexing question: Was the agency action primarily rule making or adjudicative?
In the case of Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908) and in the case of Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), the question was whether the plaintiff was entitled to a full due process hearing before proposed agency action became final. In the present case the question is whether the Legislature may provide de novo review of this type of agency action. In the Londoner case, the Court found that the agency‘s action was quasi-judicial, and held that there had been a denial of due process. In reaching a different result in the Bi-Metallic case, Mr. Justice Holmes, speaking for the Court, distinguished the Londoner case with these words:
“In Londoner v. Denver * * * a local board had to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should be levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.” (Emphasis added.)
Taking the cases together, the rule seems to be that the first inquiry is whether the action is “forward looking” or whether it refers to past acts or a present situation. If the latter, then the action is adjudication. To me, the holding in Key Western is, in effect, the same as Londoner.
It is my position that if, as in Londoner, a small group were exceptionally affected,
In Key Western, this Court quoted from 4 Davis. Perhaps the Key Western holding could have been materially strengthened if this Court had quoted the following from Professor Davis’ 1 Administrative Law Treatise 413 (1958):
“* * * Adjudicative facts are the facts about the parties and their activities, business and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion.
“Facts pertaining to the parties and their business and activities, that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavorable to them, that is, without providing the parties an opportunity for trial. The reason is that the parties know more about the facts concerning themselves and their activities than anyone else is likely to know, and the parties are therefore in an especially good position to rebut or explain evidence that bears upon adjudicative facts. Yet people who are not necessarily parties, frequently the agencies and their staffs, may often be the masters of legislative facts. Because the parties may often have little or nothing to contribute to the development of legislative facts, the method of trial often is not required for the determination of disputed issues about legislative facts.”
It should be noted that Professor Davis seems to stress the distinction between “adjudicative facts” and “legislative facts.” This theory, however, does not run contrary to or conflict with the basic holding in Key Western. In fact, this treatise would have been a material adjunct to the rules and definitions set out in Key Western which were used in determining that the policy form contains provisions which “encourage misrepresentation or are unjust, unfair, inequitable,” was a judicial function.
For the reasons stated, I join in the judgment reversing that of the Court of Civil Appeals and affirming the judgment of the District Court.