Texas State Bd. of Dental Examiners v. Fieldsmith

• Decision Date: 18 December 1964
• Docket Number: No. 16433,16433
• Citation: 386 S.W.2d 305
• Parties: TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellant, v. Dr. Hugo FIELDSMITH (Fieldschmidt), Appellee.
• Court: Texas Court of Appeals

Page 305

386 S.W.2d 305

TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellant, v. Dr. Hugo FIELDSMITH (Fieldschmidt), Appellee.

No. 16433.

Court of Civil Appeals of Texas, Dallas.

Dec. 18, 1964.

Rehearing Denied Jan. 29, 1965.

Waggoner Carr, Atty. Gen., and Pat Bailey, Asst. Atty. Gen., Austin, for appellant.

Ralph Gismant, Dallas, for appellee.

DIXON, Chief Justice.

Texas State Board of Dental Examiners has appealed from a judgment of a district court setting aside the Board's order revoking the license of Dr. Hugo Fieldsmith to practice dentistry in the State of Texas.

Dr. Fieldsmith, appellee, was charged with violation of Section (g) of Article 4549, Vernon's Ann.Civ.St. in that he permitted an unlicensed employee named Ruby Conner to practice dentistry on several occasions on Charles McDowell, Willie Buford and Marion Tuck; and also permitted his unlicensed employee Adolph Korngut to practice dentistry on Wayne R. Youngblood. Subsequent to the Board's action revoking his license Dr. Fieldsmith took an appeal to the district court pursuant to Art. 4549, V.A.C.S. The court in setting aside the Board's order held that (1) the order did not have reasonable support in substantial evidence and (2) Dr. Fieldsmith was denied due process of law.

The Board's first two points on appeal are that the trial court erred in (1) substituting its discretion for the statutory discretion of an administrative agency and (2) in holding that the Board's order did not have reasonable support in substantial evidence. We agree with appellant.

Our courts have held that an appeal to the district court under the dental statute must be tried in accordance with the substantial evidence rule. Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App., 357 S.W.2d 185, 187; State Board of Dental Examiners v. Fieldsmith, 242 S.W.2d 213, 26 A.L.R.2d 990 (ref. n. r. e.); Tamez v. State Board of Dental Examiners, Tex.Civ.App., 154 S.W.2d 976. ¹ whether there is substantial evidence to support the Board's order is a question of law. In such cases if there is substantial evidence introduced in the district court reasonably supporting the Board's order, the order must stand notwithstanding the fact that the evidence may be conflicting. The district court cannot substitute its discretion for that of the Board. Northeast Tarrant County Water Authority v. Board of Water Engineers, Tex.Civ.App., 367 S.W.2d 720, 726; Texas Liquor Control board v. Warren, Tex.Civ.App., 360 S.W.2d 821, 823; Texas State Board of Dental Examiners v. Fenlaw, Tex.Civ.App., 357 S.W.2d 185; Vrocher v. Texas Liquor Control Board, Tex.Civ.App., 350 S.W.2d 349; Texas Liquor Control Board v. Cervantes, Tex.Civ.App., 333 S.W.2d 466; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619, 623-624; Board of Water Engineers v. Colorado River M.W. Dist., 152 Tex. 77, 254 S.W.2d 369, 372; Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338; Board of Firemen's Relief, etc. v. Marks, 150 Tex. 433, 242 S.W.2d 181.

In this case the court prefaced his utterance of the judgment with this statement from the bench:

'* * * where the Court might have denied the appeal of the Plaintiff if the action of the State Board of Dental Examiners had been a thirty or even a sixty day suspension of Dr. Hugo Fieldsmith's license, the Court was influenced in its decision and took into consideration in making its decision the fact that the State Board of Dental Examiners revoked and cancelled the license of Dr. Fieldsmith to practice dentistry in the State of Texas; * * *.'

The quoted statement indicates that the court felt that the Board's order of cancellation was too severe, otherwise the order would have been sustained. To that extent the court was substituting its own discretion for that of the Board. Appellant's first point is sustained.

There was substantial evidence presented in the district court in support of the Board's order. Charles McDowell testified that on various occasions Ruby Conner, an employee of Dr. Fieldsmith, put medicine in his jaw, treated the place where two teeth had been extracted, removed a piece of bone from his jaw, removed a temporary filling from a tooth, drilled on his teeth, placed permanent fillings in his teeth, and cleaned his teeth. Willie Buford testified that Ruby Conner made impressions of his front teeth and fitted a gold crown on a tooth. Marion Tuck testified that Ruby Conner made impressions of his teeth for the purpose of constructing a fixed bridge and later adjusted the bridge to his teeth. Wayne R. Youngblood testified that Adolph Korngut, also an employee of Dr. Fieldsmith, fitted and adjusted a partial plate for him. It is undisputed that neither Ruby Connor nor Adolph Korngut has a license to practice dentistry.

Dr. Fieldsmith, Ruby Conner and Adolph Korngut contradicted the testimony of the Board's witnesses. They testified that they assisted Dr. Fieldsmith by mixing dental cement, squirting water in the patients' mouths, and building dental plates in the laboratory, but that they did not practice dentistry. A supplier of dental materials also testified that a partial plate introduced as an exhibit was not made from material sold by him to Dr. Fieldsmith.

The testimony was sharply in conflict, but there was an abundance of substantial evidence in support of the Board's order. Appellant's second point is sustained.

In its third...