Parks v. Francis

• Decision Date: 02 May 1947
• Docket Number: No. 14828.,14828.
• Citation: 202 S.W.2d 683
• Parties: PARKS v. FRANCIS et al.
• Court: Texas Court of Appeals

202 S.W.2d 683

PARKS v. FRANCIS et al.

No. 14828.

Court of Civil Appeals of Texas. Fort Worth.

May 2, 1947.

Appeal from District Court, Tarrant County; Walter L. Morris, Judge.

Action by E. S. Parks against J. H. Francis and others for a restraining order to prevent the State Board of Barber Examiners from holding a hearing and for a declaratory judgment determining the invalidity of the Texas Barber Law. From an adverse judgment, plaintiff appeals.

Case dismissed.

J. O. Hughes, of Fort Worth, for appellant.

Price Daniel, Atty. Gen., and J. A. Amis, Jr., Asst. Atty. Gen., for appellees.

SPEER, Justice.

The basis of this appeal is a complaint by plaintiff, E. S. Parks, a barber by profession, that he was denied relief prayed for when he sought a restraining order against the defendant, State Board of Barber Examiners, to prevent a threatened hearing by the Board to determine whether or not plaintiff had violated certain statutory regulations which might result in a cancellation or suspension of his certificate of registration as a barber and for a declaratory judgment by the court holding the laws applicable thereto void for the reasons set out in the petition.

The laws so attacked are found in Article 728 et seq. of Vernon's Texas Penal Code, commonly known as the Texas Barber Law. The special provisions of Art. 734a and sections 22 and 22-A thereunder are the especially offending ones attacked by plaintiff. To summarize his allegations, he alleges they are void because in violation of Texas Constitution, Sect. 15, Art. I, Vernon's Ann. St.; because the Legislature, without constitutional authority, attempted to create an administrative body to function, usurping the powers conferred by constitutional authority upon the courts. He sought a declaratory judgment finding that such provisions complained of were void and unenforceable by an administrative body.

In chronological order the following events have transpired. On August 31, 1946, as provided by Sec. 22-A, Art. 734a, P.C., the Board gave plaintiff written notice that it had information that he had infringed the provisions of the Act in specified ways and that he would be given a hearing at a named office in the court house at Fort Worth, Texas, on November 18, 1946. On November 7, 1946, plaintiff filed in the district court his petition above referred to asking for a restraining order to prevent the Board from holding the hearing, and for the declaratory judgment determining the invalidity of the law. To the petition, when presented, the court attached his fiat setting a show cause hearing for November 15, 1946. Record shows all parties appeared at that time and agreed that the Board would pass no orders (although it might have the hearing on November 18, at the time set) until the court had heard and passed upon the petition of plaintiff. The hearing on plaintiff's petition was reset for December 5, 1946. On the last-named date the court heard the petition and entered, in short form, a judgment that plaintiff be denied all relief sought and that defendants go hence without day. Plaintiff excepted to the judgment and gave notice of appeal, and timely filed an appeal bond. There was no attempt at supersedeas. On December 9, 1946, the Board entered its order, based upon the hearing had on November 18, 1946, suspending plaintiff's certificate of registration for a period of 15 days beginning with January 6, 1947, and ending on January 20th thereafter, and gave plaintiff the required notice of its action.

When this appeal was presented by oral argument, in response to an inquiry by the court, plaintiff's counsel said his client had performed the order of the Board—had closed his shop and had not opened it for business during the period of suspension.

The material portions of plaintiff's prayer found in the petition, are: "* * * That this Honorable Court issue its temporary restraining order against said defendants and each of them restraining said defendants (the Board) from holding said hearing as hereinabove alleged; that upon a hearing hereof this Honorable Court enter a Declaratory Judgment in favor of the plaintiff declaring the invalidity of said Penal Statute and enjoining and prohibiting said defendants from holding said hearing."

It is certain that the court never at any time issued a restraining order to prevent the hearing set for November 18, 1946. As indicated by the fiat of the court, a hearing on the petition was set for November 15, 1946, at which time defendants should "show cause" why the orders prayed for should not be granted. On that date, the record shows all parties appeared and that by mutual consent of all, the date for the "show cause" hearing was reset for December 5, 1946, and that "even though they might have a hearing by the Board" the Board would not enter an order or decree on that hearing until after the court had heard plaintiff's petition on December 5, 1946. With this agreement by plaintiff it is obvious that he abandoned his application or petition to restrain the Board from having such hearing.

As we have already pointed out, the court did hear plaintiff's petition on December 5, 1946, and denied plaintiff all relief sought therein. Naturally the trial court on December 5, would not grant a restraining order against the Board holding a hearing which had already been had by agreement of the parties on November 18. Nor would he at that time issue a permanent injunction against the Board holding that hearing as prayed for by plaintiff.

In plaintiff's statement of the nature and result of this suit contained in his brief, it is stated: "On the 9th day of December, 1946, said Board entered its judgment against plaintiff revoking his license and suspending him from operating his business for a period of fifteen (15) days." The Board by its brief says plaintiff's statement of the nature of the case is correct. W...