Texas State Bd. of Dental Examiners v. Sizemore

• Decision Date: 22 June 1988
• Docket Number: No. C-7369,C-7369
• Citation: 759 S.W.2d 114
• Parties: TEXAS STATE BOARD OF DENTAL EXAMINERS, Petitioner, v. Charles W. SIZEMORE, DDS, Respondent.
• Court: Texas Supreme Court

Page 114

759 S.W.2d 114

TEXAS STATE BOARD OF DENTAL EXAMINERS, Petitioner, v. Charles W. SIZEMORE, DDS, Respondent.

No. C-7369.

Supreme Court of Texas.

June 22, 1988.

Rehearing Denied Nov. 23, 1988.

Jim Mattox, Atty. Gen., Austin, Brooks W. Conover, III, Asst. Atty. Gen., for petitioner.

Joe Alfred Izen, Jr., Bellaire, for respondent.

OPINION

PHILLIPS, Chief Justice.

This is an appeal by a dentist from an order by the Texas State Board of Dental Examiners suspending his license for five years, all but 120 days of which were probated, and revoking his certificate to prescribe narcotics for a period of at least two years. The trial court upheld the Board's decision. With four justices dissenting, the court of appeals, sitting en banc, reversed the judgment of the trial court, holding that the revocation and suspension were not supported by substantial evidence. 747 S.W.2d 389 (1987). Because we conclude that the majority of the court of appeals erred in both its formulation and application of the substantial evidence test, we reverse the judgment of that court and affirm the decision of the district court.

The Texas State Board of Dental Examiners conducted a hearing based on alleged violations by Dr. Charles W. Sizemore of the Dental Practices Act, TEX.REV.CIV.STAT. art. 4543 et seq., and of certain rules of the Board. Following the hearing, the Board found that Dr. Sizemore prescribed Percodan ¹ and Tylox ², in excess of generally accepted dosages for dental treatment to three of his patients, where the prescription and use of such would promote and further addiction. The Board also found that Dr. Sizemore failed to enter the narcotic drug prescriptions in the dental records of two of the patients on nineteen separate occasions.

Hearings and the appeal from hearings on disciplinary actions against dentists are governed by the Administrative Procedure and Texas Register Act (APTRA), TEX.REV.CIV.STAT. art. 6252-13a. The scope of judicial review under the Act is set forth as follows:

The scope of judicial review of agency decisions is as provided by the law under which review is sought.... Where the law authorizes review under the substantial evidence rule, ... the court may not substitute its judgment for that of the agency as to the weight of the evidence on questions committed to agency discretion but may affirm the decision of the agency in whole or in part and shall reverse or remand the case for proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

* * *

(5) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole....

TEX.REV.CIV.STAT. art. 6252-13a, § 19(e).

The substantial evidence test is applicable to cases involving judicial review of decisions of the Board of Dental Examiners. TEX.REV.CIV.STAT. art. 4548h, § 3(e). The test, as stated many times by this court, is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. E.g., Dotson v. Texas Bd. of Medical Examiners, 612 S.W.2d 921, 922 (Tex.1981); Railroad Comm'n v. Shell Oil Co., 139 Tex. 66, 79-80, 161 S.W.2d 1022, 1029 (1942). In determining whether there is substantial evidence, the reviewing court may not substitute its judgment for the Board's, but must consider only the record upon which the decision is based. Railroad Comm'n v. Entex, Inc., 599 S.W.2d 292, 298 (Tex.1980). The burden is on the complaining party to demonstrate an absence of substantial evidence. Auto Convoy Co. v. Railroad Comm'n, 507 S.W.2d 718, 722 (Tex.1974).

In reversing the trial court, however, the court of appeals disregarded the traditional formulation of the substantial evidence test, purportedly on constitutional grounds. The court concluded that for revocation of a license to satisfy due process, there must be "proof of conduct injurious to the public welfare; proof ... of negligence, incompetence, or wilful misconduct." 747 S.W.2d at 397. Since the Board's action was "punitive in effect" and a "quasi-criminal" proceeding, the court of appeals also held that "evidence of conduct injurious to the public welfare must be substantial" in order to uphold the order.

These holdings are in error. Due process concerns place no such restraints on the right of the state, in the exercise of its police power, to regulate the licensing of dentists. "That the State may regulate the practice of dentistry, prescribing the qualifications that are reasonably necessary and to that end may require licenses and establish supervision by an administrative board is not open to dispute." Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 611, 55 S.Ct. 570, 571, 79 L.Ed. 1086 (1935).

Moreover, substantial evidence review does not permit the court of appeals to substitute its own judgment for that of the Board. "The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness." Firemen's and Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984) (emphasis added). Section 19(e) of the APTRA clearly forbids the court from usurping the agency's adjudicative authority even though the court may have struck a different balance. Gerst v. Goldsbury, 434 S.W.2d 665, 667 (Tex.1968).

Thus, we are presented solely with the question of whether substantial evidence exists in the record to support the Board's action. Texas Health Facilities Comm'n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.1984); Imperial American Resources Fund, Inc. v. Railroad Comm'n, 557 S.W.2d 280, 286 (Tex.1977). Under this test, we find that some reasonable basis exists for the Board's action. Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966).

In its first two conclusions of law, the Board found that Dr. Sizemore (1) improperly prescribed controlled substances not necessary or required in the practice of dentistry, or where such would promote addiction, TEX.REV.CIV.STAT. art. 4551h; and (2) grossly over-prescribed narcotic drugs. TEX.REV.CIV.STAT. art. 4549, § 2(c) ³. We hold that these findings are supported by substantial evidence.

The Board's...