# Scott v. Texas State Board of Medical Examiners > Texas Supreme Court · November 11, 1964 · 384 S.W.2d 686 URL: https://www.frixlaw.com/law-library/cases/9761737 ## Case - **Full name:** Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent - **Court:** Texas Supreme Court - **Decided:** November 11, 1964 - **Citations:** 384 S.W.2d 686 - **Precedential status:** Published - **Opinion:** Concurrence by Smith - **Judges:** Griffin, Smith, Steakley - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761737 ## How later opinions describe it (automated extraction) - noting that a jury trial had always been available under a 1905 statute providing for the revocation of physicians’ licenses ## Opinion text SMITH, Justice (concurring). I concur in the holding that the revocation of a medical license has been committed by the Legislature to the district courts as a judicial function. The revocation of a doctor’s license by a state agency is primarily a quasi-judicial function. While the Court in the present case has held that the trial court correctly ruled that the appeal from the order of revocation of the Board was to be tried de novo, and that the burden of proof was upon the Board, etc., yet, the Court, by way of dicta, seems to advance a new theory and a new test which would further complicate an already complex problem. Of course, it is true, as Mr. Justice Holmes once pointed out, the business of *693 ■courts is to draw difficult lines, but, this •does not mean that it is the business of the ■courts to, by way of dicta, create perplexing problems. The Court’s holding that “[t]he validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers,” coupled with the dictum — “We would have no •difficulty in holding that the acts and conduct of a medical practitioner in prescribing narcotic drugs in medical bad faith would support the revocation of his license under Subdivision (4) of Article 4505,” indicates to me that if testimony by experts in the field of medicine had been introduced, establishing that Scott had acted in medical bad faith, the Court would hold that the Legislature did not intend to provide for a trial de novo upon a conviction under subdivision (4) of Article 4505. Be that as it may, this philosophy is definitely an unnecessary and unwarranted extension of the line drawn by this court in the case of Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11 , 350 S.W.2d 839 . Although the Court cites Key Western on one narrow holding, yet, in my opinion, the Court, in the main, is, in principle, following the basic holding made in Key Western. Apparently the Court is disturbed because of the magnitude of the alleged violations of the law by the doctor. Admittedly, the charges, if true, are serious, indeed, but what would the Court say if we had before us a factual background showing only that the Board was seeking to revoke the doctor’s license because of a single violation ? This Court should bear in mind that its business is to construe statutes, when required to do so in a given case, and not to act as the trier of facts. I am opposed to any suggestion that is in the least contradictory of a holding that the Legislature meant to provide for a trial de novo in cases involving charges of a violation of Article 4505, including subdivision (4). Perhaps it could be said that, the Legislature acted unwisely in this respect, but that is not the question before us. This Court said in State Board of Insurance v. Betts, (1958), 158 Tex. 612 , 315 S.W.2d 279 , 281: “It is concededly a serious matter to strike down duly enacted legislation as being unconstitutional. It is perhaps an equally serious matter to hold that the Legislature did not mean what it said. The problem of statutory construction is to ascertain the intent of the Legislature. When we abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best. It should perhaps be reiterated that Courts have no concern with the wisdom of legislative acts, but it is our plain duty to give effect to the stated purpose or plan of the Legislature, although to us it may seem ill advised or impracticable.” This Court, in Key Western, quoted with approval the above pronouncement. It is my view that if the Court will give effect to the stated purpose of the Legislature, it will eliminate all suggestions that there possibly could be a way to circumvent the stated purpose, and will give to all doctors charged with a violation or violations the same fair and impartial trial under proper de novo proceedings. To me, there is a close analogy between Key Western and this case. We have the question: Is the Board exercising legislative power in revoking a license, or is it performing a semi-judicial function? This question was sufficiently answered in Key Western when it was said: “Therefore, the Board * * * could exercise no more discretion than the terms of the statute clearly provide, and it appears from a literal reading of the statute that the Board was not to have broad legislative discretion. The Board of Insurance Commissioners is empowered to disapprove a form for certain specific reasons only and may not dictate to the insurance companies the particular form to be used. Its only duty is to determine whether the form of the *694 policy submitted for its approval meets the standards prescribed by the statute. The action of the Board of Insurance Commissioners ‘is particular and immediate, rather than, as in the case of legislative or rule-making action, general and future in effect.’ ” (Emphasis added.) Clearly the Board’s action is “particular and immediate, rather than * * * general and future in effect.” The primary duty of the Texas State Board of Medical Examiners, under Articles 4505 and 4506, is to determine whether the conduct of the accused doctor is such that is enjoined by the statute. The degree of the alleged violation has nothing to do with this determination, likewise, it should have no bearing upon our problem of ascertaining the intent of the Legislature. As a matter of fact, we have a much less complex problem here than confronted us in Key Western. The charges against the doctor are akin to being criminal in nature. Certainly, the proposed action of the Board will peculiarly and directly affect the doctor. It is fundamental to our American system that a man “have his day in court.” Where the government, acting directly or through a Board or administrative agency, singles out an individual or small group and proposes action which substantially alter the individual’s rights then he is justly entitled to his day in court. The Legislature by enacting Articles 4505 and 4506 surely intended the proceedings to be in all respects a judicial action. In Key Western, this Court cited with approval the holding of the United States Supreme Court wherein it was said: “ ‘A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.’ Prentis v. Atlantic Coast Line, 211 U.S. 210 , 29 S.Ct. 67 , 69, 53 L.Ed. 150 .” In Key Western, in holding that the determination made by the Board was not the exercise of legislative discretion, this Court rejected the contention that the case of Davis v. City of Lubbock, (1959) 160 Tex. 38 , 326 S.W.2d 699 , was controlling. Key Western was a direct appeal. In connection with our analysis of the Davis case, we said: “Appellee fails to appreciate that there is a distinction between the types of decisions rendered by different administrative agencies. Some agencies perform judicial or quasi-judicial functions; others exercise powers which are essentially legislative. In re Harmon, 1958, 52 Wash.2d 118 , 323 P.2d 653 .” This Court pointed out that in Davis we said: “ ‘ * * * it is quite clear that a decision that it [a particular area] is a slum area under (3) of the definition is a decision of a question of pure public policy.’ “ ‘A decision or conclusion by the agency that a particular area is a “Slum Area” or a “Blighted Area” is thus made to rest upon a finding involving legislative discretion. A de novo judicial review of such a decision would clearly involve the exercise by the courts of nonjudicial powers.’ (Emphasis added.) 326 S.W.2d 699, 714 .” It is to be noted that the concurring opinion in Key Western states that under Article 21.21 of the Insurance Code, the Board is “given the power to call before it any person who is accused of deceptive acts or practices or unfair methods of competition in the business of insurance. It has authority to issue cease and desist orders to stop the objectionable practices. To me, this would have been the proper approach to the objectionable practices in this case.” This theory was rejected in *695 Key Western, yet, the Court seems to be adopting such view by projecting the line drawn in Key Western, as heretofore indicated. In June, 1963, this Court rendered its opinion in the case of Chemical Bank & Trust Company v. Falkner, Tex., 369 S.W. 2d 427 . Contrary to the argument of some, the judgment in Chemical did not modify or overrule our opinion and judgment in Key Western rendered in October, 1961. This Court in Chemical clearly distinguished Key Western in disposing of the argument that Chemical was controlled by Key Western. The Court said: “It is contended that the Key Western case laid down a broad rule for determining whether a function of an administrative agency is judicial or legislative. The court said that judicial action is ‘particular and immediate, rather than, as in the case of legislative or rule making action, general and future in effect/ * * * The heart of the decision in the Key Western case was that the statute did not give the Insurance Board legislative discretion in approving insurance policies.” The dissenting opinion in Chemical, however, seems to have selected our approval in Key Western of a holding in a Minnesota case, State ex rel. Patterson v. Bates, 96 Minn. 110 , 104 N.W. 709 , as being the heart of the Key Western case. In Chemical, this Court did not accept the dissenting view that the question of whether there is a public need for a bank in a given area is a pure fact question — one which a trial judge or jury could decide on evidence available for introduction in court. In Chemical as in Key Western this Court recognized that there is a distinction between the types of decisions rendered by different administrative agencies. In view of the analysis of Key Western in Chemical, I cannot conceive of a logical reason for rejecting a holding in this case that the doctor is entitled to an adjudication of his rights under de novo proceedings. The holding in'Key Western is neither new nor novel. Since the writing of Key Western, this Court has caused further research to be made in an effort to find additional guide lines for determining the perplexing question: Was the agency action primarily rule making or adjudicative ? In the case of Londoner v. Denver, 210 U.S. 373 , 28 S.Ct. 708 , 52 L.Ed. 1103 (1908) and in the case of Bi-Metallic Investment Co. v. State Board of Equalization of Colorado, 239 U.S. 441 , 36 S.Ct. 141 , 60 L.Ed. 372 (1915), the question was whether the plaintiff was entitled to a full due process hearing before proposed agency action became final. In the present case the question is whether the Legislature may provide de novo review of this type of agency action. In the Londoner case, the Court found that the agency’s action was quasi-judicial, and held that there had been a denial of due process. In reaching a different result in the Bi-Metallic case, Mr. Justice Holmes, speaking for the Court, distinguished the Londoner case with these words: “In Londoner v. Denver * * * a local board had to determine ‘whether, in what amount, and upon whom’ a tax for paving a street should he levied for special benefits. A relatively small number of persons was concerned, who were exceptionally affected, in each case upon individual grounds, and it was held that they had a right to a hearing. But that decision is far from reaching a general determination dealing only with the principle upon which all the assessments in a county had been laid.” (Emphasis added.) Taking the cases together, the rule seems to be that the first inquiry is whether the action is “forward looking” or whether it refers to past acts or a present situation. If the latter, then the action is adjudication. To me, the holding in Key Western is, in effect, the same as Londoner. It is my position that if, as in Londoner, a small group were exceptionally affected, *696 in each case upon individual grounds, most certainly the doctor in this case is exceptionally and individually affected. In Key Western, this Court quoted from 4 Davis. Perhaps the Key Western holding could have been materially strengthened if this Court had quoted the following from Professor Davis’ 1 Administrative Law Treatise 413 (1958): “ * * * Adjudicative facts are the facts about the parties and their activities, business and properties. Adjudicative facts usually answer the questions of who did what, where, when, how, why, with what motive or intent; adjudicative facts are roughly the kind of facts that go to a jury in a jury case. Legislative facts do not usually concern the immediate parties but are general facts which help the tribunal decide questions of law and policy and discretion. “Facts pertaining to the parties and their business and activities, that is, adjudicative facts, are intrinsically the kind of facts that ordinarily ought not to be determined without giving the parties a chance to know and to meet any evidence that may be unfavorable to them, that is, without providing the parties an opportunity for trial. The reason is that the parties know more about the facts concerning themselves and their activities than anyone else is likely to know, and the parties are therefore in an especially good position to rebut or explain evidence that bears upon adjudicative facts. Yet people who are not necessarily parties, frequently the agencies and their staffs, may often be the masters of legislative facts. Because the parties may often have little or nothing to contribute to the development of legislative facts, the method of trial often is not required for the determination of disputed issues about legislative facts.” It should be noted that Professor Davis seems to stress the distinction between adjudicative facts” and legislative facts.” This theory, however, does not run contrary to or conflict with the basic holding-in Key Western. In fact, this treatise-would have been a material adjunct to the-rules and definitions set out in Key Western! which were used in determining that the-policy form contains provisions which, “encourage misrepresentation or are unjust, unfair, inequitable,” was a judicial function. For the reasons stated, I join in the judgment reversing that of the Court of Civil1 Appeals and affirming the judgment of the District Court. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761737. Public record. Not legal advice.