Texas State Board of Examiners in Optometry v. Carp, A-7630

• Citation: 343 S.W.2d 242,162 Tex. 1
• Decision Date: 08 February 1961
• Docket Number: No. A-7630,A-7630
• Parties: TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Petitioner, v. Ellis CARP et al., Respondents.
• Court: Supreme Court of Texas

Page 242

343 S.W.2d 242

162 Tex. 1

TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Petitioner, v. Ellis CARP et al., Respondents.

No. A-7630.

Supreme Court of Texas.

Feb. 8, 1961.

Rehearing Denied March 15, 1961.

Will Wilson, Atty. Gen., John Reeves, Asst. Atty. Gen., Thos. G. Gee, of Graves, Dougherty & Gee, Austin, Joe S. Moss, Houston, for petitioner.

Douglas Bergman, Henry Klepak, Newberry & Holley, Dallas, for respondents.

WALKER, Justice.

This is an appeal from an order of the district court granting Ellis Carp, respondent, a temporary injunction against the Texas State Board of Examiners in Optometry, petitioner. The Court of Civil Appeals affirmed with an unpublished opinion. We have concluded that the temporary injunction was improperly granted, but the parties raise several other questions which should be considered at the outset.

(1) Respondent says we have no jurisdiction because this is an appeal from an interlocutory order of the district court and the judgment of the Court of Civil Appeals is made final by Article 1821. ¹ There is no merit in this contention. The Supreme Court would have jurisdiction of an appeal from a final judgment in the main case out of which the application for a temporary injunction grew, and therefore has jurisdiction to review by writ of error the action of the trial court in granting such injunction. Southwest Weather Research, Inc. v. Jones, Tex., 327 S.W.2d 417, and authorities there cited.

(2, 3) Petitioner's fifth, sixth and seventh points of error assert that the trial court erred in overruling its plea of privilege, motion for severance, and plea to the jurisdiction. The orders overruling the motion for severance and plea to the jurisdiction are interlocutory, and there is no statute providing for an appeal therefrom. They cannot be attacked in an appeal from another interlocutory order which is appealable except in so far as the questions raised might affect the validity of the latter order. Zanes v. Mercantile Bank & Trust Co., Tex.Civ.App., 49 S.W.2d 922 (wr. ref.); Witt v. Witt, Tex.Civ.App., 205 S.W.2d 612 (no writ). Article 2008 gives either party the right to appeal from an order sustaining or overruling a plea of privilege, but the appeal is governed by Rule 385, Texas Rules of Civil Procedure, and filing of the record in the appellate court within the time there specified is jurisdictional. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956. The record in this case was filed in the Court of Civil Appeals over three months after the plea of privilege was overruled, and no extension of time was requested or granted. The intermediate court did not acquire and we do not have juridiction to review that order. This brings us to the principal question in the case, but an additional statement should be made before attempting to discuss the same.

Article 4563 authorizes the Board, in its discretion, to refuse to issue a license or to cancel, revoke or suspend the operation of a license for any of the reasons stated therein, including: '(b) That said applicant or licensee is guilty of any fraud, deceit or misrepresentation in the practice of optometry or in his seeking admission to such practice; * * * (i) That said licensee lends, leases, rents or in any other manner places his license at the disposal or in the service of any person not licensed to practice optometry in this State; (j) That said applicant or licensee has wilfully or repeatedly violated any of the provisions of this Act.' Article 4565g provides that it shall be unlawful to publish any statement or advertisement concerning eye-glasses which is fraudulent, deceitful, misleading, or which in any manner tends to create a misleading impression, including statements or advertisements of bait, discount, premiums, price, gifts or any statements or advertisements of a similar nature, import or meaning.

To implement these statutory provisions, the Board promulgated its so-called Bait Advertising, Corporate Practice and Basic Competence Rules. The three rules were attacked by respondent and others in Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376, and were there upheld as constituting a valid exercise of the power conferred upon the Board by Article 4556. A statement of the substance of the rules will be found in the opinion in that case. The Corporate Practice Rule, which applies to optometrists who lease space from and practice optometry on the premises of a mercantile establishment, provides that noncompliance with certain specified conditions will be considered by the Board to constitute prima facie evidence of a violation of Article 4563(i). Upon proof of such noncompliance, the person charged has the burden of establishing that his license has not been placed at the disposal or in the service of an unlicensed person. Two of the conditions laid down by the rule are that the leased space be definite and apart from space occupied by other occupants of the premises, and have a patient's entrance opening on a public street, hall, lobby, corridor or other public thoroughfare.

After the decision in Kee v. Baber, supra, the Board discussed the Corporate Practice Rule and expressed the opinion, as reflected by its minutes, that the leased space could not be regarded as definite and apart from the mercantile establishment unless separated from other occupants of the premises by a solid partition or wall from floor to ceiling, that the aisle of a mercantile establishment such as a jewelry or department store could not be considered as a public thoroughfare, and that an entrance could not be considered a patient's entrance unless actually so used by the optometrist's patients. The members of the Board were also of the opinion that Article 4565g prohibits any type of price advertising without regard to whether the advertisement might be false, fraudulent or misleading.

The present suit was originally instituted by the Board against respondent and others alleging that some of respondent's employees were practicing optometry without a license and praying for temporary and permanent injunctions. Respondent filed a cross-action in which he attacks the Board's interpretations of the Corporate Practice Rule and Article 4565g on the ground that such interpretations are arbitrary, capricious and illegal. He prayed for a declaratory judgment and also sought injunctive relief. The Board was denied an injunction, but the trial court granted respondent a temporary injunction restraining the Board from sending out notices to appear before the Board, requesting appearances at hearings of the Board, or filing any charges, proceedings or complaints, civil, criminal or administrative, arising out of: (1) any advertisement published by respondent or his agents unless such advertisement is fraudulent, deceitful or misleading, or (2) the conducting of a practice by respondent or his agents in an office located in a mercantile establishment without such office being separated from the mercantile establishment by a solid partition from floor to ceiling, or without providing a separate patient's entrance opening on a public hall, street, lobby, corridor or other public thoroughfare. No appeal was taken from the denial of the Board's application for a temporary injunction.

In affirming the order of the trial court granting respondent a temporary injunction, the Court of Civil Appeals expressed the view that the separate patient's entrance condition of the Corporate Practice Rule is arbitrary. This conclusion is contrary to our holding in Kee v. Baber, supra. On the other hand the Board's interpretation of Article 4565g is not in accordance with the construction adopted in Shannon v. Rogers, Tex., 314S.W.2d 810, which was decided shortly after the hearing on the temporary injunction in this case was concluded. It is our opinion, however,...