Carp v. Texas State Bd. of Examiners in Optometry, 16669

• Decision Date: 25 March 1966
• Docket Number: No. 16669,16669
• Citation: 401 S.W.2d 639
• Parties: Ellis CARP et al., Appellants, v. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY et al., Appellees. . Dallas
• Court: Texas Court of Appeals

Page 639

401 S.W.2d 639

Ellis CARP et al., Appellants, v. TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY et al., Appellees.

No. 16669.

Court of Civil Appeals of Texas Dallas.

March 25, 1966.

Rehearing Denied April 15, 1966.

Price Daniel, Austin, Douglas E. Bergman, Dallas, and Quentin Keith, Beaumont, for appellants.

Mark Martin, Dallas, Charles Babb, Waggoner Carr, Atty. Gen., Hawthorne Phillips and John Reeves, Asst. Attys. Gen., Tom Gee and Will Garwood, Sp. Asst. Attys. Gen., Austin, for appellees.

DIXON, Chief Justice.

This suit was filed by appellants Dr. Ellis Carp, Dr. S. J. Rogers and Dr. N. Jay Rogers against Texas State Board of Examiners in Optometry, hereinafter called the Board, and also against all but one of the members of the Board individually. Appellants pray for a judgment declaring invalid a rule adopted December 21, 1959 by the Board known as the Professional Responsibility Rule, referred to hereinafter as the Rule. Appellants also pray that the Board be permanently enjoined from enforcing the Rule. Permission for appellants to bring this action against the State of Texas was granted in Senate Concurrent Resolution No. 8, dated January 15, 1962.

Dr. N. Jay Rogers, one of the appellants, though a member of the Board, voted against the adoption of the Rule and joined other plaintiffs in bringing this suit.

The effect of the Rule is to prohibit the use of an assumed name in the practice of optometry, and to impose strict limitations on the operation of multiple offices and the splitting of fees. A summary of its provisions will be found in a footnote hereto. ¹ The Rule itself is set out verbatim in a foot note to the opinion of our Supreme Court in Texas State Board of Examiners in Optometry et al. v. Carp et al., 388 S.W.2d 409, 411 (1965).

The Doctors Rogers testified that they maintain 82 offices at numerous locations in the State of Texas. Since 1939 they have operated under the trade name, 'Texas State Optical'. Dr. N. Jay Rogers testified that the average cost of setting up an office is between $10,000 and $12,000. In addition they usually are obligated to pay rent of $400 or $500 per month under a lease term of normally ten years. Over a period of 24 years preceding the trial they have spent more than a million dollars to publicize their assumed name.

Dr. Carp testified that he operates 71 offices in the State of Texas. He uses several assumed names, among them being 'Lee Optical', 'Luck One Price Optical', 'Mack Optical' and 'Mesa Optical'. He employs 84 optometrists. He testified that he had spent three or four or five million dollars advertising the assumed name, 'Lee Optical'.

This suit was the subject of a mandamus proceeding before our Supreme Court, Texas State Board of Examiners in Optometry v. Carp, supra. The suit had gone to trial in the district court under the Preponderance of the evidence rule. A jury was unable to agree to answers to several special issues, so a mistrial was declared. The Supreme Court in granting a writ of mandamus held that the case should have been tried under the Substantial evidence rule. Since the facts had been fully developed and only issues of law remained to be resolved, the trial court was directed to enter an appropriate final, appealable judgment under the substantial evidence rule.

In its opinion the Supreme Court stated that there were two decisive questions of law in this case: (1) whether in adopting the Rule the Board acted within the powers delegated to it by the Legislature; and (2) if so, whether the Board's action was arbitrary, capricious or unreasonable because not supported by substantial evidence.

Following the pronouncement by the Supreme Court the district court proceeded to render judgment. The court held that the adoption of the Rule was within the lawful powers of the Board, was reasonably supported by substantial evidence, and has been in full force and effect since its adoption. It was ordered that appellants take nothing by their suit.

In their first two points on appeal appellants contend that (1) the Board in adopting the Rule exceeded the power delegated to it by the Legislature and (2) that the Rule is inconsistent with the statute under which the Board operates. We agree with appellants and accordingly declare the Rule to be invalid and of no force and effect.

The subject of optometry is treated in our Civil Statutes in Articles 4552 to 4566--1, Vernon's Ann.Civ.St. For penal provisions see Articles 735--738a, Vernon's Ann.Penal Code.

In Article 4563 the Legislature has specifically listed the ten grounds upon which the Board in its discretion may refuse to issue a license, or may cancel, revoke or suspend a license.

The powers of the Board are set forth in Art. 4556, V.A.C.S. We quote the material part of the statute:

'The Board shall have the power 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 cardinal rule in statutory construction is that courts should ascertain and be guided by the Legislature's intention. We recognize that Art. 4556, V.A.C.S. clothes the Board with 'broad regulatory powers, many of which are somewhat discretionary in nature * * *.' Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376, 378. We recognize also that the statutes relating to optometry are to be liberally construed to effectuate the purpose intended by the Legislature. Art. 10, Sec. 8, V.A.C.S. Nevertheless, a careful study of available records convinces us that it was not the intention of the Legislature to clothe the Board with the power it has exercised in adopting the Rule. In paragraphs which follow we shall state the reasons which have impelled us to this conclusion.

(1) By naming the ten grounds for refusing or canceling a license the Legislature in effect expressed its intention to exclude all others. The maxim, Expressio unius est exclusio alterius (the naming of one thing excludes another) is applicable here. Though not conclusive the maxim has been pronounced a logical, sensible and sound rule of statutory construction. 53 Tex.Jur.2d 205--206. It has often been applied in determining the powers which have been or have not been delegated by the Legislature to administrative boards, commissions, licensing authorities and others. Commercial Standard Ins. Co. v. Board of Ins. Commissioners, 34 S.W.2d 343 (Tex.Civ.App.); Foshee Refining Co. v. State, 73 S.W.2d 1098, 1100 (Tex.Civ.App.); State v. Mapel, 61 S.W.2d 149, 152 (Tex.Civ.App.); State v. Mauritz-Wells Co., 141 Tex. 634, 175 S.W.2d 238; Ex Parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479, 484; Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652, 655; Huntress v. State, 88 S.W.2d 636, 643 (Tex.Civ.App.); McCamey v. Hollister Oil Co., Tex.Civ.App., 241 S.W. 689 (aff. by 115 Tex. 49, 274 S.W. 562); Clark v. Briscoe Irr. Co., 200 S.W.2d 674, 682. The maxim has also often been applied in other jurisdictions. See Sutherland, 'Statutory Construction', Vol. 2, p. 412, and 50 Am.Jur. 238.

A principle of statutory construction closely akin to the Expressio unius maxim is this: an administrative agency may implement and fill in details relating to statutory provisions listing or naming powers or activities granted or proscribed, but the agency may not by its own rules extend or add to the powers or activities listed in the statute. We think the principle is applicable here. In taking upon itself the task of listing in Art. 4563, V.A.C.S. the grounds upon which a license to practice optometry may be denied or canceled the Legislature plainly manifested its intention to retain such prerogative unto itself and not to delegate it to the Board; and the Board lacks authority to add to the grounds named in the statute. Kelly v. Industrial Accident Board, Tex.Civ.App., 358 S.W.2d 874, 876; Teacher Retirement System of Texas v. Duckworth, 153 Tex.Civ. 141, 260 S.W.2d 632 (opinion of Court of Civ.App. adopted by 153 Tex. 141, 264 S.W.2d 98); Board of Ins. Commissioners v Texas Employers Inc. Ass'n, Tex.Civ.App., 189 S.W.2d 47; Ketring v. Sturges, 372 S.W.2d 104 (Mo.); Golding v. Schubach Optical Co., Inc., 93 Utah 32, 70 P.2d 871.

(3) We believe the legislative intention was plainly manifested in 1953 when the Legislature rejected a proposed statutory amendment which would have prohibited the practice of optometry under an assumed name. The Beaumont Court of Civil Appeals on October 23, 1952 rendered a decision upholding the right of appellants Rogers to practice under an assumed name. Southwestern Bell Telephone Co. v. Texas State Optical, 253 S.W.2d 877 (1952), no wr. hist. In reaching its decision the court pointed out that neither under common law nor under our statutes was such practice prohibited; and that it was for the Legislature, not the courts, to change the law. The record before us shows that following this judicial decision House Bill No. 5 was introduced in the House of Representatives in 1953. The Bill as drawn prohibited the practice of optometry under an assumed name, and limited the number of offices of each practitioner to two. The Bill was rejected by the House. Thus the Legislature expressed its intention Not to prohibit the practice of optometry under an assumed name and not to prohibit the operation of multiple offices. The rejection was all the more significant because it came with knowledge that the Beaumont court had held that in the absence of a statute forbidding it, the practice under an assumed name was not illegal.

In Grasso v. Cannon Ball Motor Freight Lines, 125 Tex. 154, 81 S.W .2d 482, 485, the Commission of Appeals in an opinion adopted by the Supreme Court had this to say:

'When we come to examine the legislative history of section 11 of article 911a, supra, we find that there is no escape from the conclusion that it was the legislative intent that such statute should not be...