State By and Through State Bd. of Morticians v. Cortez
| Decision Date | 27 January 1960 |
| Docket Number | No. A-7326,A-7326 |
| Parties | STATE of Texas, Acting By and Through STATE BOARD OF MORTICIANS, Petitioner, v. Frank G. CORTEZ, Respondent. |
| Court | Texas Supreme Court |
Allen Melton, George M. Elliott, Dallas, for petitioner.
Glenn B. Lacy, Albert De La Garza, Jr., San Antonio, for respondent.
This is a suit for an injunction brought in a district court of Bexar County, Texas by petitioner against respondent. Petitioner alleged that the licenses of respondent, as an embalmer and as a funeral director, had been cencelled by the State Board of Morticians (hereafter called Board) after due hearing. It was further alleged that respondent had appealed from the cancellation orders of the Board to a district court of Bexar County, Texas, and was continuing to operate a funeral establishment and to act as a funeral director and as an embalmer despite the Board's order of cancellation. The Board sought a temporary injunction prohibiting respondent from conducting his business until the appeal could be heard and disposed of on its merits. Although the cancellation order had been entered on January 21, 1957 and an appeal promptly taken, the cause had not been tried on its merits in the district court at the time of the injunction hearing on July 2, 1958.
When the hearing of the appeal and the order of the Board cancelling Cortez' license first came on for trial, the trial court held that the appeal was controlled by the 'substantial evidence' rule and that the burden rested upon Cortez to proceed and make a case showing that the action of the Board was illegal, unreasonable, or arbitrary. Respondent refused to proceed. His position was that the burden was upon the Board to show by a preponderance of the evidence that his licenses should be cancelled. He also contended that on appeal his cause was to be tried 'de novo' as in cases of appeal from the justice court to the county court. He further contended that the effect of a de novo appeal was to set aside the order of cancellation entered by the Board and, therefore, his licenses were still in full force and effect and the Board was not entitled to its injunction. The trial court, without hearing any evidence, dismissed the appeal and granted the injunction.
On appeal the Court of Civil Appeals held the cause was not governed by the 'substantial evidence' rule; that by virtue of the provisions of Art. 4582b, § 4, Vernon's Annotated Texas Civil Statutes, the trial in district court was a de novo trial; that the judgment of cancellation of respondent's licenses was annulled and set aside, and remanded the cause for a new trial under the de novo rule. 306 S.W.2d 243.
The Board applied for a writ of error to this Court and we, by a per curiam opinion, 157 Tex. 649, 308 S.W.2d 12, dismissed the application for writ of error because no motion for rehearing was filed in the Court of Civil Appeals and we had no jurisdiction to hear and determine the cause. After remanding the cause to the District Court, the Board sought a temporary injunction against Cortez practicing his profession, and after a hearing, the trial judge refused the temporary injunction and this appeal results. A majority of the Court of Civil Appeals affirmed the trial court's judgment of refusal. 323 S.W.2d 56. One of the judges dissented on the ground that the former decision that the 'substantial evidence' rule did not apply was error, and that this case was governed by the substantial evidence rule. As pointed out by the Court of Civil Appeals in its majority opinion, no question as to the constitutionality of this section of Art. 4582b was raised in any of the proceedings. Neither is the constitutionality of the statute raised in this Court so we do not pass on that point, but assume, without deciding, that the statute is constitutional.
The controlling point is: Did Cortez' appeal annual and set aside the Board's order cancelling and revoking his licenses as an embalmer and as a funeral director? If the answer is 'yes' then the trial court's judgment refusing the temporary injunction is a correct one. We hold that the answer is 'yes' and affirm the judgment of the Court of Civil Appeals.
The pertinent part of § 4, Art. 4582b in question reads as follows:
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