Texas State Board of Dental Examiners v. Fenlaw

357 S.W.2d 185, 1962 Tex. App. LEXIS 2429
CourtCourt of Appeals of Texas
DecidedMarch 9, 1962
Docket16031
StatusPublished
Cited by18 cases

This text of 357 S.W.2d 185 (Texas State Board of Dental Examiners v. Fenlaw) 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.

Bluebook
Texas State Board of Dental Examiners v. Fenlaw, 357 S.W.2d 185, 1962 Tex. App. LEXIS 2429 (Tex. Ct. App. 1962).

Opinions

DIXON, Chief Justice.

This is an appeal by the Texas State Board of Dental Examiners from a judgment of a District Court setting aside an order of the Board revoking and can-celling the license of Dr. J. A. Fenlaw to practice dentistry in the State of Texas.

The record reveals that on June 22, 1960 Dr. Fenlaw was charged with violating Sec. (g) of the second part of Art. 4549, Vernon’s Ann.Civ.St. in that on or about April 18, 1960 Dr. Fenlaw, in his [187]*187dental office, permitted Archer Hamilton Fenlaw, a person not licensed to practice dentistry in the State of Texas, to extract four teeth from the mouth of one Ronald Sheffield. Following notice a hearing was held by the Board on July 22, 1960, at which hearing Dr. Fenlaw was' present.

Dr. Fenlaw took an appeal to the District Court as provided by Sec. (a) of the third part of Art. 4549, V.A.C.S. After trial on June 5, 1961 before the court without a jury, judgment was entered setting aside the order of the Board can-celling Dr. Fenlaw’s license. The trial was had before Judge W. L. (Jack) Thornton, Judge of the 44th District Court, who uttered the judgment, but the written decree afterwards prepared was signed by Judge Paul Peurifoy, sitting for Judge Thornton.

Most of the evidence is undisputed. On April 18, 1960 Ronald Sheffield presented himself to Dr. Emmett Johnson in Dr. Johnson’s office in Dallas to have dental work done. Dr. Johnson sent Sheffield to Dr. Fenlaw’s office to have some teeth extracted. In Dr. Fenlaw’s office were two dental chairs, located about five feet apart. One was being used by Dr. Fenlaw himself. The other was being used by Dr. Fenlaw’s 17 year old grandson, Archer Hamilton Fenlaw. The young grandson attended to Sheffield and extracted four teeth for him. Sheffield paid the grandson $10 in payment for his services and was given a receipt for said sum, the receipt being part of the record evidence before us.

Dr. Johnson, a member of the Texas State Board of Dental Examiners, had heard that Dr. Fenlaw was permitting someone to practice dentistry in his office. He sent Sheffield to Dr. Fenlaw’s office to see if the report were true. Either Dr. Johnson, or the State of Texas reimbursed Sheffield for the $10 he paid the young grandson of Dr. Fenlaw.

Archer Hamilton Fenlaw, the 17 year old grandson, has a long record of juvenile delinquency. He also has spent some time in a Government hospital in Fort Worth, Texas as a narcotic addict. In connection with the present matter criminal charges were preferred against him for practicing dentistry without a license. He pled guilty and paid a fine.

Dr. Fenlaw testified that he did not know his grandson was practicing dentistry in his office. His testimony is contradicted by Sheffield, who stated that the two dental chairs are located in one room about five feet apart, and that on his visit to the office on April 18, 1960 and also on á prior visit on April 12, 1960, the two men were working side by side, each working on a .dental patient seated in a dental chair.

Judge Thornton in the course of uttering the judgment made certain statements in the nature of findings of fact, which are shown in the record, which findings resolve the issue of knowledge against Dr. Fenlaw.

In its brief the Board presents two points on appeal, asserting that it was error for the trial court to set aside the Board’s order cancelling Dr. Fenlaw’s license because (1) the court substituted its discretion for the statutory discretion of an administrative agency; and (2) the order of the Board has reasonable support in substantial evidence.

The Board’s two points are well taken. Cases such as this are controlled by the substantial evidence rule. The proceedings are not comparable to a proceeding in an ordinary civil suit in which the preponderance of the evidence is the guiding rule. The question here is whether there is substantial evidence affording reasonable support for the Board’s findings and the order entered thereunder. It is a question of law. If the action of the Board finds reasonable support in substantial evidence offered in the District Court, the Court is bound to render judgment supporting the Board’s order. The court may not substitute its discretion for that of the Board. Thomas v. Stanolind Oil & [188]*188Gas Co., 145 Tex. 270, 198 S.W.2d 420; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619.

In this case we must hold, as a matter of law, that there was substantial evidence reasonably supporting the Board’s decision. Therefore, it was error for the trial court to attempt to exercise discretionary authority by entering judgment setting aside the Board’s order. Appellant’s two points on appeal are sustained.

Appellee’s counterpoints require our attention. In his first counterpoint appellee says that it was proper for the court to set aside the Board’s order because the court found on ample evidence that the Board acted arbitrarily and capriciously. With this contention we cannot agree.

The trial judge in connection with his rendering judgment in this case made a statement from the bench which is part of the record before us. We quote a part of the statement:

“ * * * if I was on this board I would tell him ‘if we ever hear of that boy being around there, we are going back and forfeit your license.’ I don’t think the boy will give any more trouble in the dentist’s office. * * * The point is, this old gentleman here, he is a victim of a grandson. That’s the whole story. He shouldn’t have let him come in there, shouldn’t have let him hang around there, but I think he had in mind keeping an eye on him and to try to keep him out of jail. * * * I think it is just bad judgment and certainly he is to be criticized and condemned by the other members of the profession by letting a boy like that pull somebody’s teeth and I can’t understand why he would do it except that he is a grandfather — MR. PESEK: Your honor, is it the court’s position that the Board acted arbitrarily and capriciously? THE COURT: Yes, acted arbitrarily arid capriciously, I think they ought to give him a chance; I think they ought to have said to him: ‘If you don’t get rid of this boy, we are going to get rid of you.’ That’s the way I feel about it and that's the way I am going to rule.” (Emphasis ours.)

From the above statement it is apparent that the court found that the Board acted arbitrarily and capriciously because it ordered the Doctor’s license revoked without first having given him a warning to desist from his violation of the law. The statute does not provide that a violator shall first be warned to desist from his illegal practice before the penalty provided by law may be visited upon him. The Board, not the Court, was charged with the duty of using its discretion within the limits laid down by the law in deciding what to do about Dr. Fenlaw’s violation of the statute regulating the practice of dentistry. There was not ample evidence that the Board acted arbitrarily and capriciously. The Board simply took an action for which the law itself expressly provides. Appellee’s first counterpoint is overruled.

Appellee in his second counterpoint says that the order of the Board did not have reasonable support in substantial evidence.

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Texas State Board of Dental Examiners v. Fenlaw
357 S.W.2d 185 (Court of Appeals of Texas, 1962)

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Bluebook (online)
357 S.W.2d 185, 1962 Tex. App. LEXIS 2429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-state-board-of-dental-examiners-v-fenlaw-texapp-1962.