Francisco v. Board of Dental Examiners

• Citation: 149 S.W.2d 619
• Decision Date: 05 March 1941
• Docket Number: No. 9127.,9127.
• Parties: FRANCISCO v. BOARD OF DENTAL EXAMINERS et al.
• Court: Court of Appeals of Texas

149 S.W.2d 619

FRANCISCO v. BOARD OF DENTAL EXAMINERS et al.

No. 9127.

Court of Civil Appeals of Texas. Austin.

March 5, 1941.

Rehearing Denied March 19, 1941.

Appeal from District Court, One-Hundred Twenty-Sixth Judicial District, Travis County; Roy C. Archer, Judge.

Suit by Dr. Winn O. Francisco against the Texas State Board of Dental Examiners and others, to require reinstatement of the plaintiff as a practicing dentist and to cancel an order of the Board revoking plaintiff's license. From an interlocutory order denying plaintiff a mandatory temporary injunction reinstating his license pending trial on the merits of the case, the plaintiff appeals.

Reversed and remanded with instructions and motion for rehearing overruled.

Clyde Vinson and Hughes, Hardeman & Wilson, all of San Angelo, for appellant.

Gerald C. Mann, Atty. Gen., and Walter R. Koch, and Zollie C. Steakley, Asst. Attys. Gen., for appellee.

McCLENDON, Chief Justice.

Suit by Dr. Winn O. Francisco against the Texas State Board of Dental Examiners and its members to require defendants to reinstate plaintiff as a practicing dentist and to cancel an order of the Board which revoked his license on the ground that he had been convicted of forgery in the State of Oklahoma. The appeal is from an interlocutory order denying plaintiff a mandatory temporary injunction reinstating his license pending trial upon the merits of the case.

The order revoking the license was regularly passed without notice under the provision of R.C.S. Art. 4549, as amended in 1935, Acts 44th Leg. p. 606, Ch. 244, § 6, Vernon's Ann.Civ.St. art. 4549, authorizing the Board to revoke a license upon "proof of conviction of the applicant or holder of a license for a felony involving moral turpitude."

The provision is attacked as unconstitutional in that it fails to provide for: (a) notice; (b) hearing; (c) court review; (d) appeal to any court; (e) trial by jury and (f) "notice and hearing before an impartial board or court, and right of appeal and review."

The salient provisions of the Article are these:

"The State Board of Dental Examiners shall have authority to suspend or revoke a dental license for any one or more of the following causes:

"a. Proof of insanity of the applicant or holder of a license, as adjudged by the regularly constituted authorities.

"b. Proof of conviction of the applicant or holder of a license for a felony involving moral turpitude.

"The District Courts of the State shall have the authority, after a proper hearing, to revoke or suspend any dental license issued in the State of Texas for any one or more of the following causes:"

Then follow seven separate grounds for which the district court may suspend or revoke a license.

"Proceedings to suspend or revoke a dental license on account of any one or more of the causes set forth in the preceding Article shall be taken as follows:

"a. Where the cause involves a criminal conviction or a conviction of insanity in some court of competent jurisdiction, the receipt by the Board of a certified copy of the records of the Court of Conviction showing a final conviction shall be sufficient evidence to justify and require such revocation by the State Board of Dental Examiners."

Then follows a subdivision which provides for trial in the district court, where the grounds are other than in the preceding subdivision a. This subdivision provides for trial as in other civil cases including trial by jury.

In a former opinion we held that the language, conviction of a "felony involving moral turpitude," meant conviction of such felony under the laws of this state. This was predicated in the main upon the fact that in the same chapter of the statutes, Art. 4545a, Vernon's Ann.Civ.St. art. 4545a, relating to "Reciprocal arrangements" the applicant is required to make affidavit (inter alia) "that no prosecution was then, or is at the time of the application, pending against the applicant, in any State or Federal court for any offense which under the laws of Texas is a felony."

A re-examination of this question in the light of authorities cited in appellees' motion for rehearing, especially the case of State v. Estes, 130 Tex. 425, 109 S. W.2d 167, leads us to conclude that we were in error in this holding. While that case arose under Art. 311, Vernon's Ann. Civ.St. Art. 311, relating to revocation of attorneys' licenses, the reasoning of the opinion is, we believe, conclusive of this issue. We therefore withdraw our former opinion as it would no longer serve any useful purpose.

Under this view, the above constitutional questions, which we did not decide in our former opinion, become controlling in the appeal.

It is to be observed that in the first quoted provision the Board is given authority to "suspend or revoke" a license; whereas in subdivision a of the second quoted provision under "Proceedings to suspend or revoke" a license, "the receipt by the Board of a certified copy of the records of the Court of Conviction showing a final conviction shall be sufficient evidence to justify and require such revocation by the * * * Board." (Italics supplied.) There is therefore manifest an irreconcilable conflict in the two provisions; the first vesting in the Board a discretion to suspend or revoke, the latter making revocation mandatory under the same circumstances. There are cogent reasons supporting a resolution of this conflict in favor of the mandatory language of subdivision a in the second quotation, and for our present purposes we will consider the question from that viewpoint.

The general principles which govern the question presented are well settled by adjudications in this state and, at least by the weight of decision in other jurisdictions. An extended review will...