Kee v. Baber

• Decision Date: 29 May 1957
• Docket Number: No. A-6229,A-6229
• Parties: Dr. John E. KEE, Appellant, v. Dr. W. F. BABER et al., Appellees.
• Court: Texas Supreme Court

Page 376

303 S.W.2d 376

157 Tex. 387

Dr. John E. KEE, Appellant, v. Dr. W. F. BABER et al., Appellees.

No. A-6229.

Supreme Court of Texas.

May 29, 1957.

Rehearing Denied July 10, 1957.

Victor A. Speert, San Antonio, for Dr. Kee.

Henry Klepak, Dallas, for appellants-intervenors.

Will Wilson, Atty. Gen., Mary K. Wall, Asst. Atty. Gen., Joe R. Greenhill, Austin, for appellees.

NORVELL, Justice.

This is a direct appeal from an order of the District Court of Travis County, 53rd Judicial District, declaring the validity of certain rules adopted by the Texas State Board of Examiners in Optometry and refusing to grant a permanent injunction restraining their enforcement. Article 5, § 3-b, Constitution of Texas, Vernon's Ann. Article 1738a, Vernon's Ann.Tex.Civ.Stats., Rule 499-a, Texas Rules of Civil Procedure. Dr. John B. Kee, plaintiff below and intervenors, Drs. Robert K. Shannon, Ellis Carp and Stanley C. Pearle contended that three rules promulgated by defendants, Dr. W. F. Baber and others as members of Texas State Board of Examiners in Optometry were void as being contrary to and inconsistent with the Legislative Act relating to the practice of Optometry. Article 4552 et seq., Vernon's Ann.Tex.Civ.Stats. The rules are referred to in the briefs as (a) the basic competence rule, (b) the 'bait' advertising rule and (c) the corporate practice rule. It was stipulated below that these rules were duly promulgated by the Texas State Board of Examiners in Optometry and that the question presented by the suit related to the power of the Board to promulgate and enforce such rules.

In oral argument the attorney for appellants-intervenors described optometry as being a quasi-profession in that an optometrist not only performs professional duties such as measuring and examining eyes preliminary to prescribing ophthalmic lenses, but also occupies the position of a merchant or tradesman in that he sells manufactured products such as lenses, frames, spectacles and other optical goods. It is not inaccurate to describe this as a dispute between two groups of optometrists, one of which emphasizes the merchandising factor of the profession or occupation and contends that the cost of suitable glasses for the using public may be greatly reduced by eliminating numerous unnecessary steps and practices which are insisted upon by the opposing group who regard such procedures and regulations as necessary to safeguard the public health. To our minds this basic conflict in Texas has been resolved by the Legislature and the optometrists themselves in favor of the group favoring strict regulation essentially by the profession itself. The trial court was correct in so holding and accordingly the judgment appealed from will be affirmed.

There are certain areas of agreement conceded by appellants which narrow the questions before us. It is recognized that 'the Legislature has the power to define optometry, to prescribe the duties of optometrists, to provide for 'basic competence', to prohibit 'price and bait advertising' and to prohibit 'corporate practice,"-but it is asserted that rules or regulations cannot conflict with the statutes nor can they subvert or enlarge on the statutory authority or policy.

It must likewise be conceded that broad regulatory powers, many of which are somewhat discretionary in nature, are delegated to the Texas State Board of Examiners in Optometry, which for convenience we shall hereafter refer to as the Optometry Board. Article 4556, Vernon's Ann.Tex.Civ.Stats. provides that '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.' This authority is similar in scope to that vested in the State Board of Medical Examiners under the Medical Practice Act ¹ and in this Court under the State Bar Act, ² and differs from the narrower delegation contained in the Dental Practice Act ³ and other similar Acts relating to administrative boards that could be mentioned. ⁴ The Optometry Board is empowered not only to adopt regulations necessary for the performance of its duties but also such rules as are necessary for 'the regulation of the practice of optometry.'

It is apparent that the Optometry Board in adopting the three rules now under attack was attempting to implement the statutory provisions relating to the licensing of applicants and the revocation of such licenses. We here set out the pertinent provisions of Article 4563, Vernon's Ann.Tex.Civ.Stats. and in brackets thereunder the Attorney General's accurate summations of the contents of the rules relating to each paragraph of the statute:

Article 4563: 'The Texas State Board of Examiners may, in its discretion, refuse to issue a license to any applicant and may cancel, revoke or suspend the operation of any license by it granted for any of the following reasons: * * *

'(b) That said applicant or licensee is guilty of any fraud, deceit or misrepresentation in the practice of optometry or in his seeking adminission to such practice;

('Bait Advertising Rule. This rule states that the advertising of certain representations regarding the quality or cost of services rendered or materials furnished by the optometrist will be considered prima facie evidence of fraud, deceit or misrepresentation within the meaning of Article 4563(b), and that upon proof of such advertising the person charged shall have the burden of establishing certain facts in rebuttal of the prima facie presumption.

'If the advertisement represents that any part of his services or materials is free, he must show that his charge for other services furnished to patients receiving the free service is not in excess of the amount customarily charged by other optometrists in the same locality or similar localities for similar services or materials, not including the services or materials which are advertised as free.

'If the advertisement represents that his charges are cheaper, he must show that his charge for the services or materials is less then the amount customarily charged by others for similar services or materials in the same locality or similar localities.

'If the advertisement represents that his services or materials are superior in any way, he must show wherein they are superior to the services or materials of optometrists generally.')

'(c) That said applicant or licensee is unfit or incompetent by reason of negligence;

('Basic Competence Rule. This rule states that the Board considers it necessary to an adequate examination of a patient for whom an optometrist issues a prescription for an ophthalmic lens, that in the initial examination of the patient the optometrist make and record, if possible, certain enumerated findings of the condition of the patient, and that every prescription for a lens include certain information; that the wilful or repeated failure of an optometrist to comply with these requirements will be considered to constitute prima facie evidence that he is unfit or incompetent by reason of negligence within the meaning of Article 4563(c); and that upon proof of noncompliance at a hearing before the Board for revocation of his license the person charged shall have the burden of establishing that compliance with the rule was not necessary to a proper examination of the patient in the particular case.')

'(1) That said licensee lends, leases, rents or in any other manner places his license at the disposal or in the service of any person not licensed to practice optometry in this State.'

('Corporate Practice Rule. This rule states that an optometrist who practices optometry on the premises of a mercantile establishment should observe certain specified conditions regarding the separation of his practice from the business operations of the mercantile establishment, and that proof of noncompliance with any of these conditions will be considered prima facie evidence that the optometrist has placed his license at the disposal or in the service of an unlicensed person in violation of Article 4563(i).')

The rebuttable presumption is a device now generally recognized as valid when reasonably applied in judicial trials or administrative hearings. The power of the Legislature or an administrative board having rule-making authority to prescribe such procedures cannot be questioned unless it clearly appears that the rebuttable presumption bears no logical relationship to the ultimate fact or conclusion sought to be established. Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78; Helvering v. Rankin, 295 U.S. 123, 55 S.Ct. 732, 79 L.Ed. 1343; Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; 73 C.J.S. Public Administrative Bodies and Procedure § 124, p. 444.

The gravamen of appellants' attack upon the three rules in question are that they are inconsistent with the provisions of Article 4563. We do not so regard them. The provisions of the legislative enactment are broad and general in scope. An intention to vest the Optometry Board with authority to fill in the details relating to the proscribed actions by members of the profession is indicated. While the rules in a sense relate to procedures before the Optometry Board, the circumstance that such Board is authorized to prescribe such 'rules and regulations as may be necessary for * * * the regulation of the practice of optometry' lends support to a construction favoring a broad and liberal delegation of authority. Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563; Finlay Straus, Inc. v. University of State of New York, 186 Misc. 242, 59 N.Y.S.2d 429; Finlay Straus, Inc. v. University of State of New York, 270 App.Div. 1060, 62 N.Y.S.2d 892; Strauss v. University of State of New York, 282 App.Div. 593, 125 N.Y.S.2d 821; Strauss v. University of...