Goldman v. State, 6405

• Decision Date: 26 April 1954
• Docket Number: No. 6405,6405
• Parties: Bernhard B. GOLDMAN, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 217

277 S.W.2d 217

Bernhard B. GOLDMAN, Appellant, v. STATE of Texas, Appellee.

No. 6405.

Court of Civil Appeals of Texas, Amarillo.

April 26, 1954.

Rehearing Denied May 24, 1954.

Jules F. Mayer, Dallas, for appellant.

Henry Wade, Dist. Atty., John J. Faga and Rufus N. McKnight, Jr., Asst. Dist. Attys., Dallas, for appellee.

PITTS, Chief Justice.

This is an appeal from a summary judgment cancelling and revoking the medical license of appellant, Bernhard B. Goldman, as a result of his having been convicted in the Federal Court of violating what is commonly known as the Harrison Anti-Narcotic Act, 26 U.S.C.A. §§ 2550 et seq., 3220 et seq., such offense being of the grade of a felony for which a fine of $5,000 was assessed and duly paid by him. The action was instituted on February 21, 1951, against appellant in his home county of Dallas in the name of the State of Texas by the District Attorney of Dallas County at the request of the Texas State Board of Medical Examiners duly made on November 10, 1950, after appellant had personally appeared before the said Board for a hearing at which evidence was presented concerning the same issues here under consideration. The State of Texas filed its verified petition, together with a certified copy of judgment of conviction and a return showing the fine paid and a copy of the Grand Jury indictment containing twelve separate counts of a similar nature, all attached to the petition as exhibits and made a part thereof. On July 19, 1951, appellant filed his verified first amended original answer containing certain exceptions, a general denial and specifically denying the charges set forth in the Grand Jury indictment. Thereafter and before a judgment of conviction was rendered, the 53rd Texas Legislature amended a part of the Medical Practice Statutes by approving H. B. No. 254, known as Chapter 426, Page 1029 of the General and Special Laws passed by the Regular Session of the said Legislature and the same became effective on June 13, 1953. Article 4506 was there amended giving the State Board of Medical Examiners the initial authority to conduct such hearings and in a proper case to cancel, revoke or suspend a medical license with a right of appeal given to any district court of the county of the losing party's residence upon his giving proper notice and pursuing his remedy further, whereas the provisions of the said Article before amendment vested the original right for such a hearing in the district court upon the request of the State Board of Medical Examiners as was done in the case at bar. The said amendment did not change or in any manner affect Article 4512, which authorizes a district court to suspend or revoke the medical license of a physician, surgeon or osteopath if he be found guilty of any fraudulent or dishonorable conduct.

On October 3, 1953, the State of Texas acting under the provisions of Rule 169, Texas Rules of Civil Procedure, requested appellant in writing to make admissions to certain inquiries therein made concerning his medical license and his conviction in the Federal Court at Dallas, Texas, on May 24, 1948, of having violated Section 2554(a), Title 26, Internal Revenue Code, United States Code Annotated, for which conviction he was assessed a fine of $5,000, which fine he paid, to which request a certified copy of the judgment of conviction and a return showing the fine paid in full on May 28, 1948, were attached. On October 5, 1953, appellant answered under oath the inquiries made and filed the same for record the next day. He there answered that a Texas Medical License No. B3700 was issued to him on November 22, 1934, and that the same was recorded in Volume 9, Page 36 of the Medical Records of Dallas County, since which time appellant had practiced medicine in Dallas County, Texas, and such license had not been theretofore revoked. Concerning the inquiries about his having been indicated by Federal Grand Jury and having been convicted of having violated the Narcotic Laws, his answers were evasive, either he refused to affirm or deny the request made or gave uncertain answers to the questions. However, in answer to a question of whether or not he was convicted in the Federal Court of Dallas on May 24, 1948, of having violated the Narcotic Law, he answered as follows:

'Defendant says that at one time, the date he does not recall, he was indicted in Federal Court at Dallas with some form of violation of the Narcotic Law. That by permission of the Court he entered a plea of Nolo Contendere. The Court accepted such Plea and entered a fine, the exact amount this Defendant does not recall, but his best recollection is that it was $3,000.00.'

Upon being next asked about the amount of the fine assessed against him by reason of the conviction, he replied:

'Defendant says that upon his Plea of Nolo Contendere in Federal Court, the exact date he does not remember, a fine was entered against him and as he has stated before his best recollection is, it was $3,000.00 and not $5,000.00.'

Appellant further stated that the charges made in the erroneous indictment were false and that he was not guilty. At no time did he deny being convicted or paying the fine. In effect he admits in his brief that he paid a fine. A certified copy of the judgment reveals that appellant was 'convicted' and was found 'guilty as charged' and he was 'sentenced to pay a fine of five thousand ($5000.00) dollars.' The 'Return' of J. R. Wright, United States Marshall, shows a fine of '$5000 paid on 5-26-53 in Dallas, Texas, to United States Clerk' in the said cause.

On October 8, 1953, the State of Texas filed its motion for a summary judgment, alleging the facts previously pleaded and heretofore discussed herein, particularly the admissions made under oath by appellant and filed for record by him, together with the contents of an affidavit of Warren A. Heddens, Agent of the Federal Bureau of Narcotics, attached to the said motion and made a part thereof, all in support of the said motion. In his affidavit Heddens stated he was present in Federal Court when appellant was convicted and assessed a fine of $5,000 upon the Grand Jury indictment containing 12 counts of narcotic violations and heard appellant's plea of 'nolo contendere' to the charge when called for trial.

On October 8, 1953, the motion for summary judgment was set by the trial court for a hearing to be held on October 19, 1953, and notice thereof was given to appellant's attorney. The same was accordingly heard by the trial court on the date set with all parties present and without appellant having filed any answer to the motion of the State of Texas. However, appellant did ten days later on October 29, 1953, file a verified answer to the motion of the State of Texas. The trial court's judgment entered on November 3, 1953, recites that on the date of the hearing all pleadings then on file were considered, together with exhibits attached thereto, the admissions of appellant made under oath, the affidavit attached to the said motion and the briefs submitted by the parties, and the trial court then concluded that no genuine issue as to any material fact existed, for which reason judgment was rendered sustaining the motion for summary judgment, thus cancelling and revoking the medical license of appellant. An appeal was perfected to the Dallas Court of Civil Appeals and the same was transferred to this court by the Supreme Court in equalizing the court dockets.

Appellant has for the first time on appeal challenged in his first four points the jurisdiction of the trial court on the grounds that Article 4506 was amended by the Legislature after the alleged cause of action arose and was filed but before judgment was rendered therein. We think a question of jurisdiction can be properly raised for the first time on appeal but it cannot be sustained unless there is a logical sound reason for sustaining it.

In the case at bar the State of Texas exercised the right to rely upon all of the existing statutes for the relief sought. It is our opinion that provisions of Article 4512 effective continuously since 1905 gave the trial court jurisdiction and sustained its judgment if and when it was conclusively shown that appellant had been found guilty of 'fraudulent or dishonorable conduct'. Surely a physician, or a 'Doctor of Osteopathy', which appellant claims himself to be, convicted on a plea even of 'nolo contendere' of having violated the Narcotic Laws as charged in an indictment containing 12 separate counts certainly must have been guilty of 'fraudulent or dishonorable conduct'. We believe the provisions of Article 4512 gave the trial court jurisdiction over the subject matter and fully supports its judgment. However, the Legislature did not repeal Article 4506 in 1953. Neither did it divest the district court of jurisdiction in finally trying such cases as are here presented. It merely changed the procedure authorizing the State Board of Medical Examiners to hear the original charge while the district court was given authority to hear an appeal perfected therefrom. This amendment did not attempt to divest the district court of its jurisdiction to hear such cases filed and prosecuted under the general provisions of the law governing such matters. Neither does the language contained in the amendment attempt to give the State Board of Medical Examiners the exclusive right to first her such cases. The amendment says such Board 'shall have the right to cancel, revoke, or suspend the license' of any practitioner found guilty of violating the law as set forth in that Article. In the case at bar, if we eliminate the provisions of Article 4512 and look only to the provisions of Article 4506 as amended for authority to support the trial court's judgment, the letter of the amended Article 4506 was not strictly followed in the full proceedings had, but according to the record presented, the provisions of the amended Artic...