Texas State Board of Medical Examiners v. Scott

377 S.W.2d 104, 1964 Tex. App. LEXIS 2060

• Court: Court of Appeals of Texas
• Decided: February 19, 1964
• Docket: 11151
• Status: Published

Opinions

PHILLIPS, Justice.

Dr. Scott, the appellee in this Court, was charged before the Texas State Board of Medical Examiners with violation of the provisions of subdivisions (4), (5) and (12) of Article 4505, Vernon’s Civil Statutes.

Article 4505, V.C.S., provides, when read in conjunction with Article 4506, V.C.S., that the abovementioned Board shall have the right to “cancel, revoke, or suspend the license of any practitioner of medicine upon proof * * * (4) Grossly unprofessional or dishonorable conduct, or a character which in the opinion of the Board is likely to deceive or defraud the public; (5) the violation, or attempted violation, direct or indirect, of any of the provisions of this Act, either as a principal, accessory, or accomplice; * * * (12) The impersonation of a licensed practitioner, or permitting, or allowing, another to use his license, or certificate to practice medicine in this State, for the purpose of treating, or offering to treat, sick, injured, or afflicted human beings.”

The Order of the Board was as follows:

“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.”

Appellee then brought suit in the district court to permanently enjoin the Board from enforcing the abovementioned Order. The case was tried before a jury that found from the preponderance of the evidence that the doctor had prescribed certain barbiturates and narcotics to persons known to the doctor to be addicted to the use of such drugs and that such conduct constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public. The jury made several additional findings not pertinent to this opinion.

There is no dispute in- that at the time ap-pellee wrote the prescriptions in question he was duly licensed to practice medicine in the State of Texas and held a valid federal narcotics license.

Lawyers for the Board made a motion for judgment on the verdict, however the court on motion by appellee entered a judgment non obstante veredicto. The Board then perfected this appeal under the provisions of Rule 324, Texas Rules of Civil Procedure.

Appellant contends that the Trial 'Court erred in trying the case before a jury under the preponderance of the evidence rule and that the case should have '•been tried under the substantial evidence rule.

We hold that the appellant is correct in this contention.

The granting or revoking of licenses has been held to be an extension of the power of the legislature albeit performed by an administrative agency created by the legislature. This has been held in license cases involving optometry, pharmacy, dental practice and real estate. State Board of Examiners in Optometry v. Marlow, Tex.Civ.App., 257 S.W.2d 761; Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530, writ refused; Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App., 357 S.W.2d 185; Host v. Texas Real Estate Commission, Tex.Civ.App., 359 S.W.2d 306, writ refused. 'This holds true even though the act provides that the trial shall be de novo. Such requirement is unconstitutional in that it breaches the traditional division of powers between the three departments of our state government. Chemical Bank & Trust Company v. Faulkner,Tex., 369 S.W.2d 427.

In a proceeding under the substantial evidence rule the party aggrieved by the administrative decision must assume the burden of satisfying the courts that the administrative decision is illegal, arbitrary ■or capricious; that is, that it is not reasonably supported by substantial evidence. Board of Firemen’s Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181.

In the case at bar the burden of proof was misplaced in that the Board was required to prove its case. The appellee presented no witnesses at all. The case has not been fully developed and in the interest of justice should be reversed and retried. London Terrace v. McAllister, 142 Tex. 608, 180 S.W.2d 619; Rule 434, T.R.C.P.

Appellee contends that the order of the Board is void as a matter of law in that it fails to affirmatively and clearly hold that appellee had violated the subdivisions of Article 4505, V.C.S. set out in the Order. We cannot agree with this contention. The Order states that the charges are brought under subdivisions (4) (5) and (12) of Article 4505. Subdivision (4) is “[gjrossly unprofessional or dishonorable conduct, or a character which in the opinion of the Board is likely to deceive or defraud the public.” The Board then sets out in its findings the conduct of the doctor which, in its opinion, substantiates these charges.

In State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609, the Court held that Section 4 of Art. 4505 includes “a doctor’s grossly unprofessional or dishonorable conduct practiced under the cloak of a medical treatment.” We hold that the conduct of appellee as found by the Board would be such conduct as to come within the provision of Sec. 4 of the Act set out above.

We reverse and remand this cause for a new trial.

Reversed and remanded.