State Ex Rel. State Board of Morticians v. Cortez

Court of Appeals of Texas

State Ex Rel. State Board of Morticians v. Cortez

323 S.W.2d 56, 1959 Tex. App. LEXIS 2309

CourtCourt of Appeals of Texas

DecidedJanuary 21, 1959

Docket13442

StatusPublished

Cited by5 cases

This text of 323 S.W.2d 56 (State Ex Rel. State Board of Morticians v. Cortez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State Ex Rel. State Board of Morticians v. Cortez, 323 S.W.2d 56, 1959 Tex. App. LEXIS 2309 (Tex. Ct. App. 1959).

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Opinions

POPE, Justice.

State Board of Morticians appealed from an order which denied its prayer for a temporary injunction. The injunction was sought on the grounds that Frank G. Cortez was operating without the licenses required by the laws of Texas. The point in the case resolves itself into an issue whether, at the time of the injunction hearing, Cortez did or did not have the required licenses. That point turns upon the effect of an appeal from an order of the Board revoking the licenses. Art. 4582b. Vernon’s Tex.Civ.Stats.

During January, 1957, the State Board of Morticians, after a hearing, revoked the funeral director’s license and also the embalmer’s license held by Frank G. Cortez. Cortez then appealed from those orders of cancellation, as permitted by Art. 4582b. In that trial on appeal to the District Court the burden was cast upon Cortez to prove that the revocation orders were not reasonably supported by substantial evidence. On appeal to the Court of Civil Appeals, this Court held that the appeal from the Board to the district court required that the trial, in the words of the particular statute, “be conducted de novo, as in the case of an appeal from the Justice Court to the County Court.” The appeal was a pure “de novo” appeal rather than a “substantial evidence” appeal. Cortez v. State Board of Morticians, Tex.Civ.App., 306 S.W.2d 243; Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190. Accordingly, this Court remanded the case to the district court for a proper trial, and it has not yet been tried.

The Board’s point is that Cortez is acting as a funeral director and embalmer, and is maintaining a funeral establishment without licenses, and that it is, therefore, entitled to a temporary injunction. The appeal from the Board order, as is the case of an appeal from a justice to a county court, vacated the order of cancellation. Cortez v. State Board of Morticians, supra. The Supreme Court in Southern Canal Company v. State Board of Water Engineers, Tex.Sup., 318 S.W.2d 619, 622, has further explained the meaning of Section 16, Article 5, of the Constitution, Vernon’s Ann.St., which provides for trials de novo in appeals from Justice Court judgments, saying:

“In interpreting and applying that provision it is held that the perfection of an appeal from a judgment of a Justice Court to a County Court annuls the Justice Court judgment. Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395, 396; [58]*58Harter v. Curry, 101 Tex. 187, 105 S.W. 988.”

It follows that the orders of the Board which cancelled Cortez’s licenses were annulled by his appeal to the district court. We remanded the case in October, 1957, 306 S.W.2d 243, and the Supreme Court dismissed the writ of error in December, 1957, Tex.Sup., 308 S.W.2d 12. Until that case is brought to trial de novo and judgment is rendered cancelling the licenses, Cortez’s licenses have not been revoked. Since the Board’s prayer for injunction depended upon its proof that Cortez was operating without licenses, the trial court properly denied the injunction.

The judgment is affirmed.

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POPE, Justice.

State Board of Morticians appealed from an order which denied its prayer for a temporary injunction. The injunction was sought on the grounds that Frank G. Cortez was operating without the licenses required by the laws of Texas. The point in the case resolves itself into an issue whether, at the time of the injunction hearing, Cortez did or did not have the required licenses. That point turns upon the effect of an appeal from an order of the Board revoking the licenses. Art. 4582b. Vernon’s Tex.Civ.Stats.

During January, 1957, the State Board of Morticians, after a hearing, revoked the funeral director’s license and also the embalmer’s license held by Frank G. Cortez. Cortez then appealed from those orders of cancellation, as permitted by Art. 4582b. In that trial on appeal to the District Court the burden was cast upon Cortez to prove that the revocation orders were not reasonably supported by substantial evidence. On appeal to the Court of Civil Appeals, this Court held that the appeal from the Board to the district court required that the trial, in the words of the particular statute, “be conducted de novo, as in the case of an appeal from the Justice Court to the County Court.” The appeal was a pure “de novo” appeal rather than a “substantial evidence” appeal. Cortez v. State Board of Morticians, Tex.Civ.App., 306 S.W.2d 243; Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190. Accordingly, this Court remanded the case to the district court for a proper trial, and it has not yet been tried.

The Board’s point is that Cortez is acting as a funeral director and embalmer, and is maintaining a funeral establishment without licenses, and that it is, therefore, entitled to a temporary injunction. The appeal from the Board order, as is the case of an appeal from a justice to a county court, vacated the order of cancellation. Cortez v. State Board of Morticians, supra. The Supreme Court in Southern Canal Company v. State Board of Water Engineers, Tex.Sup., 318 S.W.2d 619, 622, has further explained the meaning of Section 16, Article 5, of the Constitution, Vernon’s Ann.St., which provides for trials de novo in appeals from Justice Court judgments, saying:

“In interpreting and applying that provision it is held that the perfection of an appeal from a judgment of a Justice Court to a County Court annuls the Justice Court judgment. Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395, 396; [58]*58Harter v. Curry, 101 Tex. 187, 105 S.W. 988.”

It follows that the orders of the Board which cancelled Cortez’s licenses were annulled by his appeal to the district court. We remanded the case in October, 1957, 306 S.W.2d 243, and the Supreme Court dismissed the writ of error in December, 1957, Tex.Sup., 308 S.W.2d 12. Until that case is brought to trial de novo and judgment is rendered cancelling the licenses, Cortez’s licenses have not been revoked. Since the Board’s prayer for injunction depended upon its proof that Cortez was operating without licenses, the trial court properly denied the injunction.

The judgment is affirmed.

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323 S.W.2d 56, 1959 Tex. App. LEXIS 2309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-state-board-of-morticians-v-cortez-texapp-1959.

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