Texas State Bd. of Dental Examiners v. Friedman, C14-83-234CV
| Decision Date | 16 February 1984 |
| Docket Number | No. C14-83-234CV,C14-83-234CV |
| Citation | 666 S.W.2d 363 |
| Parties | TEXAS STATE BOARD OF DENTAL EXAMINERS, et al., Appellants, v. Lawrence A. FRIEDMAN, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
Jim Mattox, Atty. Gen., Robert W. Gauss, Asst. Atty. Gen., Austin, for appellants.
David W. Hilgers, Hilgers, Watkins & Kazen, Austin, for appellee.
Before JUNELL, MURPHY and PRESSLER, JJ.
This is an appeal from the judgment of the District Court overruling the order of the Texas State Board of Dental Examiners suspending Dr. Lawrence A. Friedman's license to practice dentistry. The court below found there was no substantial evidence that Dr. Friedman had actual knowledge that an unlicensed person had practiced dentistry in an office under his control, and the Administrative Order of the Board was reversed. At issue is whether allegation and proof of such actual knowledge is required. We hold that it is required; therefore, we affirm.
The Board docketed a complaint against Dr. Friedman charging that on November 11, 1980 he had violated TEX.REV.CIV.STAT.ANN. ART. 4549 § 3(C) AND (G)1 which provide:
The Texas State Board of Dental Examiners and the district courts of this State shall have concurrent jurisdiction and authority, after notice and hearing as hereinafter provided, to suspend or revoke a dental license or a dental hygienist's license, to place on probation a person whose license or certificate is suspended, or to reprimand a licensee or a certificate holder for any one or more of the following causes:
(c) That the holder thereof has been or is guilty of dishonorable conduct, ... in the practice of dentistry or dental hygiene.
* * *
(g) That a dentist employs or permits or has employed or permitted persons to practice dentistry in the office or offices under his control or management, who were not licensed to practice dentistry.
The complaint in this case was based upon allegations of a patient that a dental hygienist employed by Dr. Friedman had given her an injection of anesthetic. It is undisputed that a person is regarded as practicing dentistry if he or she administers any anesthesia in connection with the practice of dentistry. TEX.REV.CIV.STAT.ANN. art. 4551a. Upon this basis the Board charged that Dr. Friedman had employed or permitted an unlicensed person to practice dentistry.
At the hearing held by the Board, the testimony given by the patient and Dr. Friedman was conflicting as to who actually administered the anesthetic. Based upon the evidence before it, the Board found Dr. Friedman guilty of violating article 4549 § 3(c) and (g).
The appeal to the District Court was governed by the substantial evidence rule. After the record of the Board hearing was introduced into evidence, the Assistant Attorney General stipulated that the Board had not proved, and did not intend to prove, by substantial evidence or otherwise, that Dr. Friedman had any knowledge that his unlicensed dental auxiliary had practiced dentistry in his office. The District Judge ruled that based upon the evidence introduced and the stipulation, there was not substantial evidence to support the order of the Board.
The Board in this appeal brings fourteen points of error. The seventh point of error is that the District Court erred in failing to conclude, as a matter of law, that it was not necessary to allege and/or prove actual knowledge in order to suspend Dr. Friedman's license for permitting an unlicensed person to practice dentistry. Point of error number eight claims the trial court erred in failing to find that a culpable mental state need not be alleged or proven. The tenth point of error is that the trial court erred in finding that the order of the Board was not supported by substantial evidence.
Appellant argues that under State v. Houdaille Industries, Inc., 632 S.W.2d 723 (Tex.1982), knowledge and intent are not required in any suit by the State seeking civil penalties for the violation of any regulatory statute. In Houdaille, the Supreme Court, by a five to four margin, reversed the judgments of the District Court and Court of Civil Appeals. The majority opinion held that knowledge or intent are not essential elements to show a violation of § 16(b) of article 911b, of the Motor Carrier Act. However, the Supreme Court did not announce the broad rule for which appellant argues. The majority opinion expressly stated that with regard to the other statutes providing for civil penalties "depending upon particular legislative history and the wording of the statute, knowledge and intent may be required." Houdaille Industries, 632 S.W.2d at 729. The opinion then goes on to list other statutes which have been interpreted so that knowledge and/or...
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Armstrong v. State Bd. of Dental Examiners, COA97-615.
...273, 225 S.E.2d 543, 547 (1976) (Exum, J., concurring). He further cites a decision of the Texas courts, Texas State Bd. of Dental Examiners v. Friedman, 666 S.W.2d 363 (Tex.App.1984), which held that knowledge had to be shown before a dentist could be disciplined under a Texas statute simi......