Lackey v. State Board of Barber Examiners, 8594.

• Decision Date: 16 February 1938
• Docket Number: No. 8594.,8594.
• Citation: 113 S.W.2d 968
• Parties: LACKEY et al. v. STATE BOARD OF BARBER EXAMINERS.
• Court: Texas Court of Appeals

Page 968

113 S.W.2d 968

LACKEY et al. v. STATE BOARD OF BARBER EXAMINERS.

No. 8594.

Court of Civil Appeals of Texas. Austin.

February 16, 1938.

Appeal from District Court, Travis County; Hardy Hollers, Special Judge.

Suit by M. A. Lackey and others against the State Board of Barber Examiners to set aside orders of the State Board of Barber Examiners suspending the barber's licenses of the plaintiffs. The Attorney General and District Attorney of Travis County intervened on behalf of the State and filed a cross-action praying for injunctive relief enforcing the board's orders. From a judgment denying the relief sought by the plaintiffs and granting the relief sought by the State, the plaintiffs appeal.

Affirmed.

Horace H. Shelton, of Austin, for appellants.

Wm. McCraw, Atty. Gen., T. F. Morrow, Asst. Atty. Gen., and Edwin G. Moorhead, Dist. Atty., and Horace W. Morelock, Asst. Dist. Atty., both of Austin, for appellee.

McCLENDON, Chief Justice.

This is an appeal from orders of the State Board of Barber Examiners suspending the barber's licenses of the six appellants, as follows: Lackey for 15 days from June 2 to June 20, 1936; Tillman for 15 days from June 2 to June 20, 1936; Gardner for 15 days from June 2 to June 20, 1936; Littleton for 15 days from June 2 to June 20, 1936; Williams for 10 days from June 2 to June 11, 1936; and Tidwell for 7 days from June 2 to June 8, 1936.

The Attorney General and District Attorney of Travis county intervened on behalf of the state and by cross-action prayed for injunctive relief enforcing the board's orders. The appeal is by the plaintiffs below from a judgment upon a directed verdict denying the relief they sought and granting the relief sought by the state.

In the trial appellants introduced no evidence. The state on its cross-action introduced the record before the board for the purpose of showing that the orders were entered upon sufficient supporting evidence. It was admitted that all of the proceedings before the board with reference to notice, hearing, etc., were regular; and that none of the appellants had complied with the orders. All of the appellants appeared before the board, some of them pleading guilty to the charges, and as to the others evidence was introduced showing the several claimed violations. The charges against each of the appellants were specific; they were in substance that each appellant had used unboiled or unlaundered towels, and had failed to wash his hands or sterilize his instruments before using them.

The case is brought to this court on five assignments of error, as follows:

(1) That the case was moot and the trial court erred in not dismissing it on appellants' motion.

(2) That the court erroneously overruled the motion of appellants for severance.

(3) That the court erred in overruling "the general and special exceptions of appellants."

(4) That the court erred in refusing to give each of the appellants a trial de novo after a plea of not guilty, "in the same manner as if the case had been a criminal case and appealed from the municipal or justice court to the county court, to have them faced by their accusers under oath, give them the right of cross examination, and in placing the burden of proof upon the appellants."

(5) That it was error to permit the record of testimony before the Board of Barber Examiners to be read to the jury.

Only the fourth assignment above is briefed, and no authorities are cited in support of it.

We will consider these assignments in the order named.

As we understand the first assignment, the contention is that the case was moot because the board in making its orders specified the particular dates between which the licenses were...