# State Ex Rel. State Board of Morticians v. Cortez > Court of Appeals of Texas · January 21, 1959 · 323 S.W.2d 56 URL: https://www.frixlaw.com/law-library/cases/9777082 ## Case - **Full name:** STATE of Texas, Acting by and Through STATE BOARD OF MORTICIANS, Appellant, v. Frank G. CORTEZ, Appellee - **Court:** Court of Appeals of Texas - **Decided:** January 21, 1959 - **Citations:** 323 S.W.2d 56; 1959 Tex. App. LEXIS 2309 - **Precedential status:** Published - **Opinion:** Dissent by Murray - **Judges:** Murray, Pope - **Cited by:** 4 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/9777082 ## Opinion text W. O. MURRAY, Chief Justice (dissenting) . I am of the opinion that our decision in Cortez v. State Board of Morticians, Tex.Civ.App., 306 S.W.2d 243 , writ dismissed, Tex.Sup., 308 S.W.2d 12 , is erroneous. The result of that opinion is to require the trial court to substitute its findings for the findings made by the Board of Morticians and to enter judgment accordingly. The Supreme Court did not pass upon the merits of our opinion in that case, but dismissed the application because no motion for a rehearing had been filed therein in this Court. This is an unfortunate situation, because up to now the Supreme Court has given no intimation as to whether it approves or disapproves our opinion. I also think this Court was in error in Rockett v. Texas State Board of Medical Examiners, Tex.Civ.App., 287 S.W.2d 190 , opinion written by the writer of this dissenting opinion, wherein it was held that Dr. Rockett was entitled to a trial de novo, not under the substantial evidence rule. However, our disposition of that case rendered this erroneous statement of the law immaterial, and the Supreme Court refused an application for a writ of error with the notation, “no reversible error.” The question of the unconstitutionality of the provision for an appeal “the same as from the justice court to the county court” was not raised, as I recall the record in that case. Since the Supreme Court affirmed the Austin Court of Civil Appeals in Southern Canal Company v. State Board of Water Engineers, 318 S.W.2d 619 , Court of Civil Appeals opinion, 311 S.W.2d 938 , I am definitely of the opinion that the general rule with reference to appeals from the *59 orders of administrative agencies to courts, is that where the Legislature has given fact finding powers to an administrative agency, such as the State Board of Morticians, with reference to purely administrative duties, the findings of fact of that agency are binding upon the courts if supported by ⅛ substantial evidence. In such an appeal the court has no power to substitute its findings for those of the Board and render judgment upon its own findings. This would violate the Constitution, Art. 2, § 1, providing for a separation of the powers of government. Southern Canal Company v. State Board of Water Engineers, Tex.Civ.App., 318 S.W.2d 619 , affirming the Court of Civil Appeals, 311 S.W.2d 938 ; Fuller v. Mitchell, Tex.Civ.App., 269 S.W.2d 517 ; City of Waco v. Akard, Tex.Civ.App., 252 S.W.2d 496 , and authorities there cited. In Lone Star Gas Co. v. State, 137 Tex. 279 , 153 S.W.2d 681 , at page 696, the Supreme Court said: “Under our practice, as shown by the Shupee case, supra, [Shupee v. Railroad Commission of Tex., 123 Tex. 521 , 73 S.W.2d 505 ], a court is not an administrative agency, and therefore in administrative matters it does not substitute its judgment and discretion for the judgment and discretion of a duly constituted administrative agency of the State. Gulf Land Co. v. Atlantic Ref. Co., 134 Tex. 59 , 131 S.W.2d 73, 82 . It follows that in an administrative matter the judgment and discretion of the State’s administrative agency must prevail in cases where the evidence is conflicting.” Hawkins v. Tex. Co., 146 Tex. 511 , 209 S.W.2d 338 ; Trapp v. Shell Oil Co., 145 Tex. 323 , 198 S.W.2d 424 ; Texas Liquor Control Board v. Johnson, Tex.Civ.App., 298 S.W.2d 227 ; Texas Co. v. Texas Employment Comm., Tex.Civ.App., 261 S.W.2d 178 ; Smith County Oil & Gas Co. v. Humble Oil & Ref. Co., Tex.Civ.App., 112 S.W.2d 220 ; 1 Tex.Jur. Ten-Year Supp., 1937-1947, p. 124, and authorities there cited; 42 Am.Jur. pp. 563, 564, §§ 190, 191. In Southern Canal Co. v. State Board of Water Eng., Tex.Civ.App., 318 S.W.2d 619, 625 , Justice Calvert, speaking for the Supreme Court, has this to say: “If the Legislature truly wishes to provide for a strict de novo trial of the statutory issues decided by the Board, it can easily so provide. It can provide, for instance, that when suit is filed and the District Court acquires jurisdiction the Board’s order shall be null and void and of no force or effect and that the applicant’s right to a permit shall be determined by the court upon a trial of the statutory issues conducted under rules governing the trial of other civil suits, just as though the matter had been committed to the courts in the first instance and there had been no intervening decision by the Board. No doubt before enacting such a statutory provision the Legislature would give careful consideration to some of its con- ' sequences — that decision of technical matters would be removed from the hands of trained personnel and lodged with the untrained; that an administrative agency of its own creation would become a useless appendage; and that whereas on conflicting testimony one judge or jury could and well might determine, for example, that there was not sufficient unappropriated water to justify the granting of a permit, or that the granting of the permit would be detrimental to the public welfare, another judge or jury trying the right to a subsequent application, on the same evidence, would determine that there was sufficient unappropriated water to require the granting of the permit and that the granting of it would not be detrimental to the public welfare. And even if enacted, the courts would still have to decide whether such a statute contravened Section 1 of Article 2 of the Constitution. *60 To hold that Sec. 4, Subdivision (4), of Article 4582b, Vernon’s Texas Civil Statutes, wherein it provides, “When any such appeal is perfected the trial thereon shall be conducted de novo, as in the case of an appeal from the Justice Court to the County Court,” means exactly what it says, and that it does not violate Sec. 1 of Art. 2 of the State Constitution is to say that power is properly placed in the judiciary to administer all of the duties given by Art. 4582b to the State Board of Morticians. All that a funeral director or an embalmer who is dissatisfied with an order of the Board of Morticians would have to do, would be to perfect an appeal to the district court, and this would render the Board, to use Justice Calvert’s language, “a useless appendage,” and thereafter the matter would be entirely in the hands of the judiciary, just as though the Board had never acted. The result unquestionably would be to place upon the judiciary the duty of administering the law relating to morticians, that the Legislature clearly intended should be administered by the State Board of Morticians, which it created for that very purpose. The many cases heretofore cited clearly demonstrate that the judiciary cannot properly have jurisdiction over purely administrative matters which have been delegated to administrative agencies. The judicial review must necessarily be under the substantial evidence rule. In 42 Am.Jur. p. 563, § 190, we find the following statement: “It is a well-settled general principle that nonjudicial functions cannot be exercised by or imposed upon courts, and statutes which attempt to make a court play a part in the administrative process by conferring upon it administrative or legislative, as distinguished from judicial, functions may contravene the principle of separation of powers among the different branches of our government.” This brings us to a consideration of what to do about this provision which the Legislature has clearly set out in Art. 4582b. We must either declare the entire Act or only this provision unconstitutional and void. I prefer that we do the latter. The original Act, 53rd Legislature, Regular Session 1953, Chapter 251, p. 661, titled “State Board Of Morticians — Licenses — Embalmers And Funeral Directors,” contains this provision: “Sec. 7. Should any provisions of this Act be held to be invalid by a court of competent jurisdiction, for any reason, such holding shall not affect the validity of any remaining portion of this Act, it being the legislative intent that this Act shall stand, notwithstanding the validity of any such provision or section thereof. “Every provision of this Act, every section and every part of every section is hereby declared to be independent insofar as this relation shall be necessary to the validity of this Act; and the fact that any provision, section or part of any section is void, shall not be held to invalidate any other provision hereof.” Thus our duty is made clear. We should strike out the sentence, “When any such appeal is perfected the trial thereon shall be conducted de novo, as in the case of an appeal from the Justice Court to the County Court,” and leave the remainder of the Act standing just as it was written by the Legislature. When this is accomplished, it would then be our duty to reverse the judgment of the trial court and here order the injunction prayed for issued. I do not concur in the opinion of the majority. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777082. Public record. Not legal advice.