*1 BOARD OF MEDICAL TEXAS STATE EXAMINERS, Appellant, Appellee. SCOTT, Jr., M.D., William
Daniel
No. 11151. Appeals of Texas.
Court Civil
Austin.
Feb.
Rehearing Denied March Gen., Carr, D. Atty. Fred Waggoner Gen., Morse, Jr., Attys.
Ward, Asst. Bill Austin, appellant. for Houston, appellee. Gray, & Davis *2 the heard, consideration of after and PHILLIPS, Justice. evidence, is of the Board charges and Court, appellee Scott, in was Dr. the this charges the contained opinion that the Board of charged the Texas State before in far complaint true so in the are of the Examiners with violation Medical charges prescribing and relate to said (12) (4), (5) and provisions subdivisions of ampheta- amphetamine, administering Article Vernon’s Civil Statutes. of compounds, bar- mine and derivatives biturates, and 4505, V.C.S., provides, when read derivatives Article barbiturate 4506, V.C.S., drugs conjunction compounds, A narcotic in with Article and Class addicts, far as also in so shall have known and that the abovementioned Board to “cancel, revoke, suspend complaint prescribing right the to or said relates to upon amphetamine, am- practitioner administering any of of medicine and license * * * derivatives, compounds, proof (4) Grossly unprofessional phetamine and conduct, barbiturates, derivatives or a character barbiturate or dishonorable likely opinion compounds, A narcotic which in the Board is and and Class of public; (5) patients Daniel drugs deceive defraud the to of William to or Scott, violation, attempted violation, M.D., Jr., direct or under conditions or indirect, Scott, Jr., any provisions this of which Daniel William said of M.D., Act, accessory, or principal, a ac- or known either as knew should have ** * therapeutic complice; (12) impersonation there was for such The no need patients, practitioner, permitting, or licensed therefore license, allowing, to his or cer- another use ORDERED, “IT IS ACCORDINGLY State, practice tificate to in this medicine DECREED, AND that ADJUDGED purpose treating, offering to for the of practice the license to within medicine treat, sick, injured, human or afflicted Texas, the State of heretofore held beings.” M.D., Scott, Jr., Daniel re- William be was as follows: The of the Board Order voked and cancelled. day August, 18th of “On this “Rendered and this day entered 18th Texas be before the came on to heard of August, 1962.” Examiners, Medical State Board session, complaint duly certain in a Appellee then suit the district day on 26th filed the Board with permanently enjoin court to from July, was com- in which it enforcing The the abovementioned Order. Scott, Jr., plained William that Daniel jury case was tried a that before found M.D., provisions had violated preponderance from the of the evidence (4), (5) (12) of and Sub-Divisions prescribed had bar- that the doctor certain Article Civil Statutes Revised persons biturates and narcotics to known to Texas, amended, such vio- the doctor be to the of such to addicted use being grounds for cancella- lation drugs and such constituted conduct tion, suspension of the revocation or grossly unprofessional and dishonorable practice State medicine in the to likely conduct of a character deceive or Scott, Jr., Texas, by Daniel William public. jury defraud the several The made M.D., William said Daniel and pertinent additional to this Houston, Scott, M.D., Jr., Harris opinion. Texas, County, having appeared in ap- Counsel, dispute in-that at the time There is no person his Mr. through and question charges prescriptions Dorman, pellee wrote the and said William read, duly practice medicine he and licensed to complaint having been was valid fed- Texas and held a complaint and the State on evidence said eral narcotics license. charges having been introduced Lawyers for the Board made motion In the at case bar the burden proof judgment verdict, on the however the misplaced was in that the Board re- was court appellee on motion judg- quired entered prove appellee case. pre- *3 ment non obstante veredicto. The Board sented no witnesses at all. The has case perfected then appeal provi- this under the fully been developed and in the interest 324, sions of Rule justice Texas of Rules Civil of should be reversed and retried. Procedure. London McAllister, Terrace v. 142 Tex. 608, 619; 180 434, S.W.2d Rule T.R.C.P. Appellant contends that the Trial Appellee trying 'Court erred in contends that the the case before a order jury the Board void as a in preponderance under the is matter of of the evi law it affirmatively clearly that fails to dence rule and hold that case should have appellee '(cid:127)been that violated the tried under had subdivisions the substantial evidence 4505, of Article V.C.S. rule. set out the Order. agree We cannot with this contention. The appellant We hold that correct in is charges Order states that the are this contention. (4) under (5) (12) subdivisions Ar ticle “[gjrossly 4505. (4) Subdivision is un revoking of li granting The professional conduct, or dishonorable aor has been to be an extension censes held opinion character which in the of the Board per legislature power albeit likely public.” is or defraud the deceive by agency created formed an administrative Board then sets out in its held in by legislature. has been This which, opinion, conduct of the doctor phar optometry, involving cases charges. substantiates these State macy, practice and real estate. dental Optometry v. Mar Board of Examiners in In State Board of Medical Exam low, 761; Tex.Civ.App., 479, Garner S.W.2d Koepsel, 257 iners v. 159 Tex. 322 S.W.2d Pharmacy, 609, Tex. v. Texas State Board the Court held that Section 4 Art. refused; Civ.App., 304 writ unprofes- S.W.2d 4505 “a grossly includes doctor’s Examiners v. Board Dental practiced Texas State sional or dishonorable conduct 185; Fenlaw, Tex.Civ.App., 357 S.W.2d under the cloak medical treatment.” Commission, Estate appellee Host v. Texas Real We hold as that the conduct of Tex.Civ.App., refused. by writ 359 S.W.2d found the Board be such would conduct pro though act provision 'This true even holds come within the 4 of Sec. Such the trial shall be Act de vides that set out above. novo. requirement that it is unconstitutional We reverse and remand this for cause powers division of
breaches the traditional a new trial. departments state between the of our three government. Com Bank & Trust Chemical Reversed and remanded.
pany Faulkner,Tex., 427. 369 S.W.2d v. FOR REHEARING
ON MOTION proceeding under the substan In a ques that the This is the first time by party aggrieved tial evidence rule the de constitutionality tion of of the trial assume must decision the administrative practice provision act novo of the medical that the satisfying the courts the burden of of this state. been the courts has before arbitrary illegal, is decision administrative ques pass on this In order the courts to n reason is, it capricious; that is not that tion, necessary raised. Wood it is that it be ably supported substantial evidence. Wood, Tex. v. 320 S.W.2d 159 and Retirement of Firemen’s Relief Bradley Liquor Marks, v. This Court held in 150 Fund Trustees of Houston Board, 108 that Control S.W.2d Tex. S.W.2d (cid:127) agencies. Some liquor administrative ent permit to under sell cancellation of quasi- judicial or agencies perform merely exer- Liquor is Control Act functions; exercise others judicial and that administrative function cise an essentially adminis- powers which are allegedly permittee aggrieved is exercising essential- Agencies ap- trative. on Board is not entitled an order of the among may, ly functions administrative peal had trial the Board to a de novo if fact-finding bodies things, act as matter, since, other the stat- not acted on the if appli- an qualifications of authorizing, to ascertain ute were to be construed as so *4 license; they may to act attempt cant for it a would be unconstitutional as an a the conduct of by determine whether Legislature the confer administrative to complaint against practitioner, whom a power upon judicial depart- and duties the legis- lodged, to the conforms has been ment. right ato by which the lative formula Registration of Medical In State power exercised is fixed. If the 602, the Scherer, 92, 46 N.E.2d 221 Ind. by agency essentially administra- the is connec- Indiana held in Supreme Court of court, appeal tive, superior upon the medical with the revocation tion statute, a provided to con- by is limited license: acted', agency sideration of whether the to, contrary arbitrarily, capriciously, or of li- granting and revocation “The businesses, trades, case.) (Citing law. engage in censes to professions function. is a ministerial practicing “The privilege of den- fact-finding act Ministerial boards (cid:127) subject tistry regulation is to under the applicants whether bodies to ascertain police power power of the state. The by legislative to formula conform a n 43.24.110,upon conferred RCW the fixed. It right to a license is which director of licenses and two members division is well that under the settled profession appointed by gov- of the powers, these ministerial fact-find- ernor as a committee to hear com- may delegated to ing not be duties plaints and revoke a dentist’s license appeal courts, and that the so-called cause, essentially is administrative. provisions which undertake of statutes power This administrative is one try jurisdiction to and to vest courts historically that courts accus- were entitling determine novo the facts de perform performed tomed to or had license, applicant a or to continue an to prior statutory to the creation license, operate under a must be committee; power a nor with which merely procedure providing treated as the courts could have been invested.” proceeding may be which In the Matter the Revocation court for an inves- before the Dr., Dentistry License to Practice tigation to whether the min- determine H. Harmon, Licensee-Appellant N. et. body' legally has with- isterial acted and al., 52 Wash. 323 P.2d cases, powers. In all of if its such ministerial board has conformed Health, Department of In v. State Jaffe statutory procedural method, and its 664; 330, 6 64 A.2d A.L.R.2d Conn. supported by decision is substantial certifir held “The revocation a- Court evidence, determination and physician registration granted cate to a will not be disturbed.” surgeon just is as much an adminis- and grant original is trative matter as board’s or- affirming administrative In Citing it.” cases. Supreme license, the revoking der a dental Washington held: Court Commission v. General Federal Radio Electric, 74 L.Ed. 281 U.S. 50 S.Ct. between the “There a distinction is application an involved for renewal of by differ-' types of rendered decisions provided The statute license. radio hear, “shall reviewing court and review upon appeal record and determine the said
evidence, may alter or revise the deci- judg- appealed and enter
sion from such may just (44
ment as to it seem Stat. Supreme
1169)”. United Court of the licensing
States function branded administrative,”
“purely interpreted the making “a reviewing court
statute as
superior agency”, revising and accord-
ingly Supreme that the Court could not held Supreme layed
review. The Court down proposition Elec- broad the General
tric Case constitutional court “cannot that a *5 ** * participate in the exercise of func- essentially legislative.”
tions which are
Motion overruled. NEUMAN, Appellant,
William Fred
TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellee.
No. 5580. Appeals
Court of Civil of Texas.
El Paso.
Oct.
Rehearing Denied Nov.
Judgment May Reversed 20, 1964.
.See S.W.2d 295.