The opinion
ON SECOND MOTION FOR REHEARING
In a second motion for rehearing appel-lee points out that Art. 4549, V.A.C.S., contains this language:
“Upon the hearing of such cause, if such Court shall find that the action of such Board, in .revoking or suspending such license or licenses is not well taken, such Court shall by appropriate order and judgment set aside such action of said Board; but if such Court or jury shall sustain such action of said Board in revoking or suspending such license or licenses an order shall be made and entered in appropriate form sustaining and affirming the action of such Board; provided, however, that the person or persons whose license shall have been so revoked or suspended may waive the impanelling of a jury, from which order an appeal may be taken to the Court of Civil Appeals, as in other civil causes (Emphasis ours.)
Appellee argues that since the Statute provides for a jury trial, the substantial evidence rule is not applicable.
The present Statute was amended in 1951, the amendment becoming effective 90 days after June 8, 1951, the date of adjournment of the Legislature. The caption of the amending act makes no reference to a jury trial. General and Special Laws, 52nd Legislature, 1951, Chapter 267, § 2, pp. 427-434. The cases of Texas State Board of Dental Examiners v. Fieldsmith, Tex.Civ.App., 242 S.W.2d 213 , 26 A.L.R.2d 990 ; and Tamez v. State Board of Dental Examiners, Tex.Civ.App., 154 S.W.2d 976 were both decided prior to the effective date of the amendment of 1951.
However, the Statute had previously been amended in 1941. General and Special Laws, 47th Legislature, 1941, Chapter 605, § 1, pp. 1336-1339. This 1941 amendment also permitted a jury trial in substantially the same language as above quoted in the amendment of 1951. The two cases above cited were decided while the 1941 amendment was in effect. The cited cases are not exactly in point for they refer only to Arts. 747, 752b(c) and (o) and 752c, § 4 of our Penal Code, Vernon’s Ann.P.C. They do not refer to Art. 4549, V.A.C.S. And the Articles in the Penal Code malte no reference to trial by jury in respect to the revoking or cancelling of a license to practice dentistry.
So far as we know our Supreme Court has not made a judicial determination interpreting the Statutes in question in regard to the applicability of the substantial evidence .rule.
If this were a matter of first impression we might be inclined to interpret the Statutes to mean that the substantial evidence rule is not applicable in cases involving the revocation of a license to practice dentistry. But in the light of the holdings in the Fieldsmith and the Tamez cases, supra, by Courts of Civil Appeals, and in view of the fact that our Legislature has not seen fit to amend the dental statutes in the plain manner it amended the Insurance Code by Art. 21.44, we shall adhere to our original holding that the substantial evidence rule is applicable here.
Appellee’s second motion for rehearing is overruled.