Burton v. Rogers
| Decision Date | 15 March 1973 |
| Docket Number | No. 7448,7448 |
| Citation | 492 S.W.2d 695 |
| Parties | Dr. Jack BURTON et al., Appellants, v. Dr. N. Jay ROGERS, Appellee. |
| Court | Texas Court of Appeals |
Jack Sparks, Asst. Atty. Gen., Austin, for appellants.
Mehaffey, Weber, Keith & Gonsoulin, Beaumont, for appellee.
Defendants below appeal from an order overruling their pleas of privilege to be sued in Travis County. The defendants are the five individuals who, along with the plaintiff, constitute the Texas Optometry Board created under the provisions of Art. 4552-2.01, Vernon's Ann.Civ.St. (Supp.1972). 1 Plaintiff sought a declaration that a specific interpretation of Sec. 5.09 of the Act adopted by defendants was null and void because: (a) it was violative of the provisions of Sec. 2.14 of the Act; (b) the interpretation was ultra vires the power of said Board; (c) that it was null and void as to certain specific items of advertising and those of a similar nature. Plaintiff also sought an injunction to restrain the defendants and their agents from enforcing the interpretation proclaimed by the defendants.
We note that each of the individual defendants resides in some county in Texas other than Jefferson or Travis Counties, but the amended plea of privilege of defendants alleged that each was a member of said Optometry Board and was acting within the scope and course of his duties as a member of said Board in the promulgation of said interpretation; hence, it was asserted that "as members of the Texas Optometry Board, [they] have their legal domicile or residence in Travis County, Texas." 2 Further, according to the amended plea, the plaintiff's petition "shows on its face that a Writ of Injunction is sought by Plaintiff against officials of the State of Texas and an agency of the State of Texas and, as such, is only properly maintainable in Travis County, Texas, the seat of State Government for the State of Texas."
Plaintiff filed his controverting affidavit invoking the provisions of subdivision 9, Art. 1995, V.A.C.S. Only the plaintiff testified upon the hearing, at the conclusion of which the court overruled said pleas, and this appeal has been duly perfected after defendants filed their appeal bond. 3
We will discuss together the first two points of error brought forward by the defendants, such points being set out in the margin. 4 In urging these points, defendants misconstrue the allegations of the pleading and the long line of respectable authority which has determined that the acts of state officials not lawfully authorized or which exceed their delegated authority are not the acts of the State of Texas. Such unlawful and ultra vires acts are not entitled to protection under the doctrine of sovereign immunity. The rule was forcefully applied by the United States Supreme Court in United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882), a case involving the title to General Robert E. Lee's property then occupied by Arlington National Cemetery. We cite only a few of the authoritative decisions by our own courts which follow the rule so announced in Lee. See: Terrell v. Middleton, 187 S.W. 367 [Tex.Civ.App., San Antonio, 1916, error ref., 108 Tex. 14, 191 S.W. 1138 (1917) ]; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945); State v. Epperson, 121 Tex. 80, 42 S.W.2d 228 (1931); W.D. Haden Company v. Dodgen, supra (308 S.W.2d 838); State v. Lain, 162 Tex. 549, 349 S.W.2d 579 (1961); Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151 (1960); Texas Highway Com'n v. Texas Ass'n of Steel Imp., Inc., 372 S.W.2d 525 (Tex.1963). Indeed, in a venue appeal Chief Justice Nye of the Corpus Christi Court faced a similar contention advanced by the Attorney General and followed this respectable line of authority. Sanders v. State Department of Public Welfare, 472 S.W.2d 179, 183 (Tex.Civ.App., Corpus Christi, 1971, error dism.).
As plaintiff conceded upon oral submission of the cause, if his suit is against the State or its officials acting within the scope of their authority, he has no cause of action since the suit would be against the State and no permission to sue had been obtained. This concession is required under a long line of decisions, many of which are mentioned in Department of Pub. Safety v. Great S.W. Warehouses, 352 S.W.2d 493, 494 (Tex.Civ.App., Austin, 1961, error ref. n.r.e.).
This brings us to a consideration of the basic issue involved in the case--was plaintiff's suit one against the state officials acting within the scope of their lawful authority? Or, conversely, were acts of the individual defendants complained of ultra vires and in contravention of the lawful authority granted by the statute? Upon submission of the cause, the Assistant Attorney General contended that this issue could only be reached upon the trial upon the merits and could not be considered upon the venue appeal. We disagree, and proceed to a determination of the questions presented by the record before us.
On January 27, 1972, the Chairman of the Board addressed a letter to several optometrists, including plaintiff and several licensed optometrists employed by him, advising that the Board had adopted an interpretation of the Act which read as follows:
"It is the interpretation of this Board that the Texas Legislature by the enactment of Section 5.09 of the Texas Optometry Law prohibits price advertising by an optometrist whether it be specific or fixed prices or by phrase or slogan such as 'economical price', 'one low price', 'popular price' or any other terms or phrases making reference to price." 5
In an opinion dated December 29, 1971, the Attorney General upheld the validity of the "interpretation" previously quoted. Opinion No. M-1029. Defendants now contend that, as a matter of law, the action of the Board members in attempting to enforce such "interpretation" was lawful and that neither the trial court nor this court is at liberty to reexamine the question. We have not been referred to any decision which supports this position.
Chief Justice Cureton in Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 131, 79 A.L.R. 983 (1931), laid down the rule applicable to this case in this language:
"[W]hen a controversy finally reaches the courts for determination, the opinions of the Attorney Generals, rendered in due course, while entitled to careful consideration by the courts, and quite generally regarded as highly persuasive, are not binding on the judiciary, and it is our duty now to enter upon an independent inquiry as to the validity of the act before us."
In Royalty v. Nicholson, 411 S.W.2d 565, 572 (Tex.Civ.App., Houston, 1967, error ref. n.r.e.), it was said: "We recognize that Attorney General's opinions are not in any manner controlling, but they are entitled to great weight unless clearly wrong." In considering the question before us we will follow the rules set out in the cited cases.
The only provision of the Optometry Act regulating price advertising of optometrists is Sec. 5.09(a), reading:
"No optometrist shall publish or display, or knowingly cause or permit to be published or displayed by newspaper, radio, television, window display, poster, sign, billboard, or any other advertising media, any statement or advertisement of any price offered or charged by him for any ophthalmic services or materials, or any statement or advertisement concerning ophthalmic lenses, frames, eyeglasses, spectacles, or parts thereof which is fraudulent, deceitful, misleading, or which in any manner whatsoever tends to create a misleading impression, including statements or advertisements of bait, discount, premiums, gifts, or any statements or advertisements of a similar nature, import, or meaning." 6
The Optometry Act of 1969 repealed the prior acts regulating the practice of optometry [Ch. 10, Title 71, Rev.Civ.Stat. (1925), as amended, and Ch. 5, Title 12, Penal Code (1925), as amended]. Sec. 6.03. One of these repealed statutes, Art. 4556, had authorized the Board to "make such rules and regulations not inconsistent with this law as may be necessary for the performance of its duties, the regulation of the practice of optometry and the enforcement of this Act." The validity of rules regulating the practice had been upheld by our Supreme Court in several cases, e.g., Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376 (1957); Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex.1967).
The amendatory Act now under consideration drastically curtailed the rule-making authority of the Board. Sec. 2.14 of the Act reads:
While the amendatory Act was before the Senate and prior to its adoption, Senator Kennard, Chairman, Public Health Committee then considering the bill, requested an opinion from the Attorney General as to the effect of the proposed Sec. 2.14, quoted above, called attention to the cases of Kee and Carp, supra, and propounded this question:
"Does Section 2.14 of the proposed bill limit the Board to the making of procedural rules only or would the underlined provisions have the effect of clothing the Board with authority to make interpretive rules or rules which would have the effect of enlarging upon or expanding the specific provisions of the Bill." 7
The Attorney General answered the question by...
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