Texas State Board of Dental Examiners v. Prichard

446 S.W.2d 905, 1969 Tex. App. LEXIS 2658
CourtCourt of Appeals of Texas
DecidedOctober 24, 1969
DocketNo. 17051
StatusPublished
Cited by5 cases

This text of 446 S.W.2d 905 (Texas State Board of Dental Examiners v. Prichard) 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. Prichard, 446 S.W.2d 905, 1969 Tex. App. LEXIS 2658 (Tex. Ct. App. 1969).

Opinion

LANGDON, Justice.

OPINION

This appeal is from a judgment setting aside the order of appellant, Texas State Board of Dental Examiners, by which the license of the appellee, Dr. John F. Prich-ard, to practice dentistry in the State of Texas, was suspended for a period of thirty (30) days beginning on November 15, 1967. The appellant’s suspension order dated September 26, 1967, based upon a complaint that appellee in 1967 violated appellant’s Telephone Directory Listing Rules and Regulations Sections (a), (b), and (c) and Subsection (j) of the second portion of Article 4559, Vernon’s Ann.Civ. St., also provided that should the appellee notify the appellant and the telephone company in writing on or before November 15, 1967, of his willingness to comply with the listing rules and regulations in the next published directory then such suspension would be cancelled.

Rather than submit to the appellant’s order of suspension and the conditions attendant to it the appellee perfected his appeal from such order to the District Court. The case was tried to the court without a jury. After a full hearing the trial judge declared the order of suspension to be of no force and effect and accordingly entered ' judgment setting it aside.

No finding of fact or conclusions of law were requested and none were filed.

The appellant expresses its displeasure with the judgment based upon two points of error by which it contends that the record before the court fails to establish that the order of suspension was arbitrary, illegal, void, etc., and that such order had reasonable support in substantial evidence.

From the time of the filing of the original complaint against him, throughout the hearing before the appellant Board, during the trial in the district court, and on this appeal by his counterpoints the appellee has maintained that the Telephone Directory Listing Rules and Regulations in question are void because the appellant lacked statutory authority to promulgate them. We are in accord with this position.

[907]*907Thus the primary and essential question to be determined on this appeal is whether or not the appellant had the statutory authority to adopt and promulgate the rules and regulations in question. If it had no such authority then such rules and regulations are void from their inception and unenforceable.

The facts in the record concerning the background and history of the appellee and the Telephone Listing Rules and Regulations will in our opinion be most helpful in portraying the nature of the situation involved in this case as it was unfolded before the trial court. These facts are summarized as follows:

Appellee, Dr. John F. Prichard, has been licensed by the appellant to practice dentistry continuously since 1928, the same year he received his D.D.S. degree from Baylor at Dallas. He is a doctor of dental surgery. His practice is limited to periodontics. He has had numerous post graduate courses in periodontics at such institutions as Boston University, Beth Israel Hospital in Boston, Northwestern University, and the University of Michigan. He is a past-president of the American Society of Periodontics, a Diplómate of the American Board of Periodontology. The latter was the result of a National Board examination in 1947, at which time he was certified as a specialist in periodontics. He is a member of the American Dental Association, the American Academy of Oral Roent-genology, the State and District Dental Associations, and of numerous other professional societies.

He is the author of a 600 page published textbook on advanced periodontal disease which is in general use with practically all graduate courses and a number of undergraduate dental schools.

He is a Senior Consulant of the Periodontics Department of the University of Washington in Seattle, a visiting lecturer in the Periodontics Department of the University of Pennsylvania. He has been active with and is now Honorary Consultant to the United States Public Health Service through the Air Force at Lack-land, Carswell, and the United States Public Health Hospital in Fort Worth.

In 1967 when the complaint in question was filed the appellee was listed in the yellow pages of the Fort Worth telephone directory under his specialty as follows:

“Dentists — Periodontists (Gum Diseases)
“Prichard, John F.”
Business Address — phone number
Residence Address — phone number.

He has been listed in exactly the same manner since 1947, the year in which he was certified as a specialist in periodontics.

Through the years preceding the adoption of the directory listing rules here involved, it has been the customary procedure for dental specialists to list their names in the telephone directory in the same manner as the appellee.

It has likewise been customary for medical doctors and doctors of osteopathy and related professions to list in the yellow pages in the same manner under the heading of their specialties.

On August 3, 1961, the Telephone Directory Listing Rules and Regulations in question were adopted by the appellant.

Mr. Tom A. Garner, Sr., is the Assistant Executive Secretary of the appellant Board and an investigator for it. He has been an employee of the Board since September 1, 1947. He was the appellant’s sole witness. He was familiar with the rules in question and attended the meetings and discussions which led to their promulgation and adoption. His testimony concerning these matters is summarized as follows: The rules were not initiated by the appellant. The latter [908]*908had been continuously asked for a “uniform telephone listing” by the general practitioners (dentists having no specialty). The appellant in response to the requests, “to come up with some type of rule and regulation concerning telephone listings”, held four different hearings concerning the rules at Dallas, Houston, Austin and Corpus Christi. The majority of the members of the profession were in favor of and desired to be governed by the rules. The Board adopted the rules in question solely because the majority of the dentists voted in favor of them. No other reason or explanation for the appellant’s action in adopting the rules in question was given or testified to.

The dentists (general practitioners) desired the rules because, according to Mr. Garner, it is they who send specialists their business and they feel like the patient should let them “decide who he should go to.”

“Q. Now the general practitioners have the feeling that they should control whether or not a patient was sent to a specialist, is that correct?
“A. The general practitioner felt like that they should be the one who decided whether a man needed an oral surgeon, a periodontist, or an orthodontist, that is the way they felt. That the patient should not decide that that is who he needed.
“Q. That was the only reason that this rule was adopted?
“A. That’s my understanding.”

The desire to control referrals was the only reason the dentists (general practitioners) desired the rule in question. They outnumber the specialists 20 to 1. Only five (5) dentists out of every 105 are specialists.

Mr.

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446 S.W.2d 905, 1969 Tex. App. LEXIS 2658, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-state-board-of-dental-examiners-v-prichard-texapp-1969.