# Appendix — Carp v. Texas Bd. of Examiners in Optometry > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0996%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1967 - **Citation:** 389 U.S. 52 ## Text APPENDIX, A Opinion Below . 1. In the Supreme Court of Texas 6 Texag{Srare Boa OF ann IN OPTOMETRY 7 et ab, Petitioners, o iy ‘ R Ellis Carp et al., Respondents. No. A148. Supreme Court of Texas. 7 Feb. 8, 1967. Suit against Texas state board of examiners in optometry and certain of its members for. judgment declaring invalid professional responsibility rule adopted by board. J udg- ment adverse to plaintiffs rendered by District Court, Dallas 2 County, Dallas A. Blankenship, J., was reversed in ‘part and affirmed in part by Dallas Court of Civil Appeals, Fifth Supreme Judicial District, 401 S.W.2d 639, and defendants petitioned for review. The Supreme Court, Pope, J., held that rules promulgated by board of examiners in optometry _ prohibiting fee splitting by licensed optometrist with un- licensed person and division of fees by treating optometrist with another optometrist and practice of optometry under assumed or trade names and requiring presence of optome- trist at office with which his name is identified and at which he holds himself out as praotitioner were not new and i in- * 5 we ‘ oe - „ ax} + Fes — 4 Pow 1 at 5 5 . * . * 2a : 3 provisions to Geste Act and were consistent with one or more of its specific proscriptions and were valid. Judgment of Court of Civil Appeals reversed and judg- ment of trial court affirmed. — J., dissented. Crawford C. Martin, ie Gen., Hawthorne Phillips and John Reeves, Asst. Attys. Gen., Will Garwood and Tom. Gee, Sp. Asst. Attys. Gen., Rinnaan & Babb, Charles N. | Babb, Austin, Strasburger, Price, Kelton, Miller & Martin, ; : Mark Martin, Dallas, for petitioners. Price Daniel, Austin, Douglas E. Bergman, Dallas, Keith, Mehaffy & Weber, Quentin. Raith, Beaumont, for respon- dents. Porr, J ustice. Doctors Ellis Carp, S. J. 8 and N. Jay Rogers 5 sued The ‘Texas State Board of Examiners in Optometry... and sought a declaratory judgment that the Professional | Responsibility Rule adopted on December 21, 1959 by the Board was void. They also asked for a permanent in- junction against the Board’s enforcement of the rule. The trial court denied the relief prayed for and sustained the 8 validity of the rule. The court of civil appeals held that although there was substantial evidence which supported » rule, the Board exceeded its delegated powers in pro- on ting it and therefore, the rule was invalid. 401 W 23 639. In our opinion the Board did not exceed its or 4 powers in promulgating the rule. We reverse e judgment of the intermediate eourt and affirm that of ee a ai r ful ‘was not 5 a , ae or ee ‘and that Gare was cubstential 3a 0 evidence of the relationship between the rule and the gen- _ eral welfare of the citizens of Texas. We too find. that the rule is grounded upon substantial evidence. The neces-. sity for such a rule was demonstrated by the general sup- | port it received from the members of the optometry pro- fession and the professional societies and the record which abounds with evidence of the specific evils the rule. was designed to correct. Some portions of the record. will be mentioned and commented on in our analysis of the * provisions of the rule. The central question presented 1 the 0 before us is whether the Board exceeded its delegated powers in promulgating the Professional Responsibility Rule. In determining this issue, we must examine the general pur- poses of thé Optometry Act as well as certain specific pro- visions of the act. The Legislature’s primary purpose. in 8 passing the act was to assure and protect the personal . professional relationship between an optometrist and patient. To make certain that this purpose was car- ; ried out, the act requires an optometrist to be licensed before he may practice within the state. The optometrist must evidence his identity and professional qualifications by registering and recording his license in any county in which he practices. Articles 4561-4562'; article 735 Ver- non’s Ann. Penal Code. He must also display his license in his office, and when he practices away from his office, he must identify himself by affixing to each bill for glasses his signature, address and the number of his license. Artiele 736, Vernon's Penal Code. Personal identification by those practicing any of the healing arts is of such sig- nificance. that the Legislature requires a licensee to iden- tify the particular system which his license permits him = Unless indicated otherwise, al articles cited in un opinion are contained in Vernon’s Civil Statutes 4a to . Article 4556. It is in this statutory context of fixing professional identification. and personal respon- - sibility that we now examine the powers delegated to the State Board of Examiners in Optometry and the provisions of the particular statutes and the rule which the Board promulgated. Article 4556 is the source of the Board’s rule-making authority. It provides: 4 »The Board shall have the power to make such rules and regulations not inconsistent with this law as may be necessary for the performance of its duties, the regulation of ‘the practice of optometry and the - enforcement of this At. Article 4563 peeved that the Board of Examiners may refuse to issue a license to an applicant. and may cancel, revoke or suspend any Benne it has granted for any of the following reasons: “(a) That said applicant or licensee is . of gross immorality; b) That said applicant or 1 is guilty of any _ fraud, deceit or misrepresentation in the practice of optonietry or in his seeking admission to such prac- _ tiee; d te) That said applicant or licensee is unfit or in- 5 competent by reason of negligpnee : 57 (d) Tuat said applicant or F licensee has been on- 3 noted of a 3 or a misdemeanor Which involves ley That nia applicant or licensee is an habitual > drunkurd or is addicted to the use of morphine, cocaine or other drugs having similar effect or has "become insane or has been adjudged by a court of. | senboet — to be of unsound mind; ° : | 0 That said Licensee = directly. or indirectly: employed, hired, procured, or induced a person, not licensed to practice e in this State, to 80 practice; “(g) That said licensee directly or indireetly aids or abets in the practice of optometry any person not duly licensed to practice under this Act; “(h) That said licensee. directly or indirectly em- ploys solicitors, canvassers or agents for the purpose of obtaining patronage; = “(i) That said licensee lends, leases, rents or in any gther manner places his license at the disposal or in the service of any person not licensed to Asien ‘el tometry in this State; . i) That said applicant or licensee has wilfully o or “repeatedly violated any of the provisions of this Act.” The questioned Professional Responsibility Rule, except for its severability clause, is copied in the footnote to Texas State Board of Examiners in Optometry v. Carp, 388 S.W.2d 409, 411-412 (Tex, 1965). The footnote. to the opinion of the court of civil appeals; 401 S.W.2d 639, 640. 641, is a good summary of section 1 of the rule, which we adopt. Section 1 provides that no optometrist shall:. „(a) Divide, share or split fees with any lay per- son, firm or corporation. However, it shall not be _ construed a violation of the Rule if an optometrist (1) pays an employee in the regular course of em- ployment, or (2) leases space on & percentage or gross receipts basis; and (3) he may 2 0 or assign accounts receivable. | b) Divide, share or b split fees . with another op- tometrist or — except (1) on a division of _ gervices and (2) then only with the knowledge of the patient, but (3) the Rule will not be interpreted to prevent partnerships. 8 . e) Practice under or use an assumed name in connection with his practice. However (1) partners may practice under their full or last names, and (2) optometrists employed by other optometrists may prac- tie under their own names in an office listed in the names of their employers. | d) Use or allow his name or professional identity to be used on the door, window, wall or sign of any office or location where optometry is practiced unless said optometrist is actually present and practicing therein during office hours. — „e) Practice in any: office or location where any name or professional identification on any sign shall indicate that such office or location is owned, operated or supervised by any person not actually present a practicing therein during office hours. . “(f) Requirements (d) and (e) above shall be deemed 8 satisfied if. the optometrist is (1) physically present . more than half the total hours the office is open for * at least nine months of the year; or (2) physically present in such office at least one-half the time such person oonduets, directs or supervises any practice of -, optometry; r (3):regularly makes personal examina- tions of eyes at such location or panes directs or 15 smpervises such examinations.”. . Section 2 of the rule provides mat the wilful or 8 failure of an optometrist to comply with any provision of section 1 shall be considered prima facie evidence that stich ee eee ayn 1 a vidlation * — ead shall 10 VERVE — 88 7 be grounds for filing charges to 3 revoke, or sus- pend his license or to enjoin him from continuing such violation. Section 3 of the rule prevides that if any part of the rule be held invalid, the intent of the Board was to promulgate the remainder of the rule. . , The court of civil appeals in striking down the rule jn its entirety, held that article 4563 and other statutes stated _ Specific grounds for refusing or cancelling a license, that _ the statement of. zpecific grounds ‘was an exclusion of all others, and that the Legislature intended that the Board should not add new or inconsistent grounds. The authori- ties in support of the legal principles applied by the ‘court of civil appeals are listed in the court’s opinion. Our opin- on is, however, that each provision of the rule must be separately examined to determine whether it is related to and consistent with the grounds for cancellation-or refusal _ that the Legislature listed.. In other words, the. real ques. . tion presented is whether the rule states new or inconsist- ent grounds as held by the intermediate court. In Kee v. Baber, 157 Tex. 387, 303 S. W. 2d 376 (1957), this court sustained the validity of three rules that the Board of Optometry. promulgated. These rules regulated: “bait” advertising, basic competence, and corporate prac- tice of optometry. The court held that article 4556 was a broad delegation of regulatory powers to the Board since it authorized the Board to adopt such rules as are necessary for “the regulation of. the practice of optometry. ” The court . also held that each of the rules was ‘consistent with, re- lated to, and implementation of one or more of the pro- hibited categories set out in article 4563. The Professional Responsibility Rule which is under attack prohibits. five forms of practice by those licensed as optometrists, and ‘ as in Kee v. Baber, : ‘we shall examine each of the prohibited ‘practices with reference to article 4563 and othes e — . Niet . ° 1 * 9 „ 83 a ty th ‘ > „ Section 100 of the: rule „ petohtbit teo-splitting ‘by a M. F | censed optometrist with an unlicensed person. Since the * x purpose of obtaining patronage,” and article 773, Vertion’s - . Optometry Act forbids an unlicensed person to directly charge fees for optometric services, such a person cannot undermine the act by indirectly charging and collecting fees + through the device of fee-splitting. The prohibition of fee- 5 splitting with laymen, is generally related to the personal and professional relationship between optometrist and pa- tient which is’ requisite to the practice of. optometry and 3 ddeceit or mis representation in the practice. of optometry a ft is related to artiele 4563 (h) which authorizes es » revocation of a license when the “licensee directly. or in- or * e employs solicitors, eanvassers, or agents ne the ad „ 9 Code, which provides that no optometrist may em- ate ploy b r-agree to employ, pay or promise to pay, or reward is specifically’. related to artiele 4563(b) which pröhibits a 3 promise to reward any person, firm, vo © tor securing,’ . - 5 soli¢iting or drumming patients or patronage.” It is related also to article 4563(i) since a Heensee, who shares his pro- - fessional fees with.an unlicensed. person“ places his license at the disposal or in the service of a[ny} tents not licensed d | 46 practice optometry in this State.“ . „ estion 10b) of the rule prohibits a division’ of ties by “7 a treating optometrist with another optometrist. This sec- / Ben is’ subject ‘to some exceptions but even then the fee- splitting is permissible. only with the kpowledge of the — This section is relevant to the same provisions of the Optometry Act as section 10). Section 1 (b) protects the same personal and professional relationship between — ide optometrist and his patient and that pur runs a through the ‘whole act. The section is relevant to article ° BeAr 4863 (b) because the treating optometrist holds himself out eae e A patient as tie ‘one, who is performing the services” ; B ö . . 2 a 2 : * 2 hte 5 „ „8 of Se a a" av ret 4 gs 2 . e, 5 eis 9 9 ; and is to 1 paid upon the basis of those services: A patient a who ignorantly pays optométric fees based upon elements: other than service alone and which fees are paid to absentee optometrists is misled. — Section 1 (e) of the rule prohibits the practice of optom- etry under assumied or trade names. The reason for this section is that the trade or assumed name practice, like fee-splitting, disrupts the optometrist-patient relationship by concealing the identity and burying the responsibility of the licensed optometrist. The need for section 1 (e) is clearly supported by substantial evidence some of which we shall now summarize since it demonstrates the relevance of this section to the provisions of article 4563. Dr. Carp op- erates seventy-one offices in Texas. He advertises them un- der the following trade names: Luck Optical, Luck One Price Optical, Mast Optical, Mesa Optical, Mack Optical, Plains Optical, Amarillo Optical, Lubbock Optical, Pan- handle Optical, and Mission Optical. From time to time he adds, drops, or changes the trade name at a particular Office although the licensed optometrists employed in that office remain the same. He has purchased the practices of licensed optometrists and practices under their name al- though they are no longer associated with the respective offices in any manner. Illustrative of Dr. Carp’s trade or assumed name practice is the situation that exists in Wichita Falls. Within a two-block area in that: eity, Dr. Carp main- tains offices operated under the names of Mast Optical, Luck 8 Optical, and Lee Optical. The same supervisor oversees these three offices. Each office dispenses the same optical goods and services and uses the same kind of equipment. Optometrists are shifted from one loeation to the other. Dr. Carp’s advertising represents to the public that these au three offices are in competition with each other thereby ; — the false 3 that they are euch indepen- | \ 9 . 4 — r —— r Oe heey or 222 ² ü ITO RG RU r W f err „ ag e sail ee 10a dently ‘owned and operated. Similar situations exist in _- Dallas and El Paso. On the other hand, Texas State Optical, owned by.the Doctors Rogers, operates: eighty-two offices in Texas and advertises only under the one trade name. Although no trade name can be licensed to practice op- tometry, Texas State Optical advertises by the use of such statements as “a scientific TSO eye examination.” : ‘The practice of optometry under a trade name is a hold- ing out to the public that the trade name is licensed. The result is that the identity of the licensed practicing optom- etrists is hidden behind the unlicensed trade name. Pre- seriptions belong to those operating the trade name busi- ness rather than the prescribing optometrist. The practice is confusing and misleading to the public. In Kee v. Baber, supra, this court upheld a Board rule which required, an optometrist to separate his practice from the business oper- ations of mercantile establishments, and did so on the grounds that it was a safeguard for the optometrist-patient relationship and would avoid-confusion on the part of the public. The court there ‘held that the rule which prohibited corporate practice of optometry -was reasonably referable to article 4563 (i), which prohibits placing an optometrist’s license “in the service or at the disposal of unlicensed per- sons.“ Practice under a trade name is similar to practice under a corporate name which was denounced in Tee. Ser- tion 1 (e) is also reasonably referable to article 4563 (b) which prohibits “deceit or mis representation in the practice of optometry.” See also article 738a, Vernon’s Penal Code. The practice of a profession under a trade name has _.- Often been regulated and prohibited by rules. Fisher v. Schumacher, 72 So. 2d 804 (Fla. 1954); Pearle Optical of ia, Monroeville Inc. v. Georgia State Board of Examiners in Optometry, 219 Ga. 364, 133 S0. 2d 374 (1963) ; State Board ol Dental Examiners v. Bohl, 162 Kan. 156,174 P. ad 998 my ‘ts (1946) ; Silverman v. Board of Registration i in Optometry, ° 344 Mass. 129, 181 N.E.2d 540 (1962) Toole v. Michigan State Board of Dentistry, 306 Mich. 527, 11 N. W. zd 229 (1943); State Board of Optometry v. Orkin, 249 Miss. 430, 162 So. 2d 883 (1964); Strauss v. Univ. of New York, 2 N. T. 2d 464, 161 N. V. S. 2d 97, 141 N. E. 2d 595 (1957); Strauss v. Univ. of New York, 282 App. Div. 593, 125 N. T. S. 2d 821 - (1953); Straus Inc. v. Univ. of State of New Vork, 186 Misc. 242, 59 N.Y.S.2d 429 (Sup.Ct.1945); 41 Am. Jur. ‘Physicians and Surgeons § 52 (1942); 70 C.J. 8. Physicians . and Surgeons 59 31, 33 (1951). Sections 1(d), 10e), and 1(f) of the rule equire and as- sure the presence of an optometrist at the offices with which _ his name is identified and.at which he holds himself out as a practitioner.. Substantial evidence was presented to prove that such rules were needed to correct the evil of misleading . representations to the public, Named optometrists have been identified with scores of widely separated. offices in Texas, notwithstanding the fact that they have neither practiced at nor been inside many of the places with which their names are associated. Dr. Carp has advertised and 15 practiced under the names of Douglas Optical, Shannon Optical, Pearl Optical, Lee Optical, Lee Optical Company and Dr. L. H. Luck. Those are the names of licensed optom- etrists who sold Dr. Carp their locations and the use of their names but continued their practice independently of Dr. Carp. Texas State Optical’s advertising leaves the impression that one of the Doctors Rogers is present at a particular office. Actually they have neither been inside nor seen some of their eighty-two offices distributed generally over Texas. They list their names in phone books in cities where they do not purport to practice optometry and on plaques show- ing the names of the optometrists who serve particular of- 2 r t; . eT — 0 1 N 7 a ot! 1 8 ** 4 Be, Mess n ~ 4 K . BY TE 3 . 12a fies though they do not in fact practioe at such offices. Since such practices are deceptive and misleading, sections 1(d), 10e), and 1(f) are releyant to article 4563(b). Toole. v. Michigan State Board of Dentistry, supra, and Campbell V. State, 12 Wash. 2d 459, 122 P.2d 458 (Wash. 1942). We conclude that the court of civil appeals erred in its holding that the Professional Responsibility Rule added | new and inconsistent’ provisions to the Optometry Act. To the contrary, our opinion is that the rule’s provisions are in harmony with the general objectives of the act and re- ferable to and consistent with one or ‘more of its specific proscriptions. We believe that the. Legislature, by invest- ing the Board with broad rule-making powers [for] tlie enforcement of this Act” and “[for] the regulation of the practice of optometry,” contemplated that the Board would use these powers to correct the evils generally classified in ‘ article 4563, or some other provision of the Optometry Act. If these rule-making powers did not authorize the Board | to regulate evils not encompassed in the specific wording of | the act, they would be nothing more than meaningless" oe _ Respondents urge two additional reasons in support of the judgment of the court of civil appeals—the case of Southwestern Bell Tel. Co. v. Texas State Optical, 253 S. W. 2d 877, (Tex. Civ. App. 1952, no writ) and the legisla- tive history of the Optometry Act. In the Southwestern Ben Tel. Co. case the Doctors Rogers brought an injunction suit and compelled the telephone company to list Texas State Optical, the trade name, in the yellow pages of the Port’ Arthur telephone directory. At that time the Board had not yet undertaken to implement the act. The case did not come to this court, and the opinion contains a number of holdings that are inconsistent with our views expressed 5 above. The court: held that “It Ihe fact that no license to ees poe ; eee } practice optometry has been issued to ‘Texas State Optical’ is not material.” The decision reflects an absence of factual . background about the evils of the trade name practice of optometry as evidenced by its holding tuat such practice is not against the public interest so long ai as the public by making a search can discover the persons using the name. We disapprove these holdings. Whether the telephone com- pany should list an optometrist’s trade name is not the same issue as that of the Board’s power to make rules ore | hibiting practice under a trade name. * Respondents urge that the Legislature did not enact pro- posed legislation which would have prohibited trade name practice of optometry and fee-splitting. The argument is that the original Optometry Act, as introduced, had a pro- vision which prohibited the practice of optometry: under any name other than a licensee’s own proper name and also had a provision which would have made it a penal offense to falsely impersonate any person licensed as an optonietrist. Acts 46th Leg. R. S. 1939, ch. 4, pp. 360-368. Before passing the bill, the Legislature deleted the sections which n ited trade name practice, Vol. II House Journal, 46th Leg. 1939, pp..2529-2534, and fee-splitting, Senate Journal, 46th Leg.1939, pp. 1958-1968. Respondents urge that the Legis- _ lature by deleting the prohibitions against, the practices from the bill, implied an intent that such practices should 3 permitted. Respondents’ reasoning is that In ]o court should read into a statute by implication that which both Houses of the Legislature have expressly rejected * . Grasso v. Cannon Ball Motor’ Freight Lines, 125 Tex. rr 81 S. W.2d 482 (1935). The Legislature did not adopt specific prohibitions of: trade name practice and fee-splitting; however, any impli- . cations which might be derived from that action are ober- come by the Legislature’ s express grant of broad rule- i — 80 ‘ 2 rern 8 — — — dee Ne e eee. . eens 14a 85 — powers to the Board. Kee v. Baber, supra. The - Legislature expressly empowered the Board to make rules to regulate the practice of optometry and enforce the act. Rather than an implied limitation of Board powers, the act extended the powers of the Board. Instead of an im- 3 plied grant of permission to practice under a trade name, the act’s rule-making provision enrpowered the Board to make appropriate rules grounded upon substantial evi- dence of the evils against which the public should be pro- ctested. Gibbs v. United States Guarantee Co., 218 S. W. 2d. 522 (Tex. Civ. App. 1949, “writ ref.). In Kee v. Baber, supra, this court 80 treated the grant of rule-making powers and we sustained the rule which prohibited corporate practice of optometry on the reasoning that. it implemented the Legislature's prohibition against placing an optometrist’s license “in the service or at the disposal of unlicensed per- sons.“ On similar reasoning, the Board had the power to prohibit the same result under a different scheme. The trade name entity is no more a licensee than a corporate entity. The Board passed its rule after substantial evidence showed that a widespread practice existed in Texas which 25 undermined sections (b), (h), and (i) of article 4563 and the general purpose of the net to identify and establish personal responsibility of the licensee. It is our opinion that the ‘Legislature in failing to enact the specific pro- visions, intended instead to provide a better method for the Board to: regulate the profession, ‘and that it did this by an express authorization for the Board to tailor and make its rules for the particular needs of the profession and the 1 public so Sd as they are relevant to the areas pet pro scriptions. N We reverse the e of the Gurt of civil wren 5 N ‘and afirm the judgment of the trial court. “Share, J, dissenting. TT ) Dramen Ornnon Shere, Justice. 7 . f . 1 respectfully. dissent, The Legislature provided i in Ar- | ticle 4563 ten grounds for refusing or canceling the license of an optometrist. The rule now under attack was adopted by the Texas State.Board of Examiners in Optometry. In my opinion, each of the rules’ outright proscriptions - has been added as a new ground to those enumerated by the Legislature for the revocation of licenses. Since the Legislature through the enactment. of ‘Article 4563 has definitely listed the reasons authorizing the Board, in its diseretion, to refuse to issue a license to any. applicant in the first place, and to cancel, revoke or suspend the operation of any license by it granted, any rule adopted by the Board must by its own terms be referable to or related to a specific provision of Article 4563. An éxam- ination of the specific provisions of Article 4563 and the provisions of the rules under attack leads me to conclude 1 that each provision is an outright and independent pro- scription. The forbidden acts as stated in Section 1 of the rule are not by their own terms referable to or related to any specific provisions of Article 4563. On this point Jean add very little to the holding of the Court of Civil Appeals, 401 S.W.2d 639. However, I do wish to emphaß size that when the Legislature said to the Board that it may cancel, revoke or suspend a license for ten specifie reasons, it negatived any other grounds that might have been permitted under general rule-making powers. See State v. Mauritz-Wills Co., 141 Tex. 634, 175 S. W. 2d 2238, 241 (1943); 41 Am. Juris. 172, Physicians & Surgeons, 44; Graeb v. State Board of Medical Examiners, 55 Colo. 525 139 P. 1099, Hol, 47 L. R.A.NS,, 1063 ( 16a Colo.1913). This latter case involved a Colorado statute which assigned nine specific “acts and conduct as may jus- tiky the revocation of a license“. The Court held: “[q]uite clearly the causes designated in ‘the statute are exclusive, and the maxim, e eee unius est exclusio oe applies. * ee” The Board contends and ‘this Court seems to approve new offenses to those listed in Article 4563. Both the Board and the Court rely heavily upon our holding in Kee v. Baber, 157 Tex. 387, 303 S. W. 2d 376 (Sup. Ct. 1957). In considering and approving the Tee case, I was of the opinion and ‘still. maintain that the rules considered in Kee were specifically tied to and closely related to specific dependent rule. Our decision in Kee stressed the idea and, in fact, the Court found that the board rule-making powers | _ (emphasized by the Court in the present case) were in- tended “to vest the Optometry Board with authority to fall in the details relating to the proscribed actions.” [emphasis added]. My analysis of Kee leads to the con: clusion that this Court was not holding in Kee that the Board could do the proscribing itself. In our case, the Board. makes no contention that the rule under attack in any manner is enacted to fll in the details or in imple- mentation of a prospective enactment. The Board is seek- ing, at the hands of this Court, power to make the proscriptions in the first instance and for such rules to have the force of law just as though the Legislature had included them in the statute. I-respectfully maintain that a ‘the contention that the rule under attack does not add | 8 sections of Article 4563. The rules there involved were designed to implement rather than to add a new and in- | ee an administrative agency may not enlarge the causes for which a license may be revoked or suspended. See Cherry 17a v. Board of Regents of the University of State of New York, 289 N.Y. 148, 44 N. E. 2d 405 (1942). In Cherry, the Court held that since the New Vork Legislature has enumerated the reasons for suspension or revocation of _ licenses, the Board cannot, by adoption of rules, add to the statutorily enumerated grounds. The Court said in Cherry: : [Wie have said that the Board of Regents’ ‘specific supervisory powers over the practice of dentistry * * * enable it, within reasonable limits, to prescribe canons . by which conduct deemed by it, in the exercise of fair judgment, to be unprofessional and objectionable may, in the interest of rescuing that profession from vulgar commercialism, be banned.’ Matter of Dr. Bloom Den- tist, Inc., v. Cruise, 259 N. V. 358, 363, 182 N. E. 16, 17. The field in which that power may be exercised is nonetheless subject to restriction by the Legislature, and even within the field in which the Legislature has delegated to the Board of Regents power to prescribe canons banning conduct which it deems unprofessional and objectionable, ‘the Board of Regents cannot by the exercise of that power enlarge the causes. for which the license of a dentist may be revoked or suspended, 8 as defined in subdivision 2 of section 1311. 8 46 @ Tjhe bill which had W introduced in the Legisla- ture defining the grounds for the revocation of a den- tist’s license included as an additional ground ‘that the dentist has violated the rules of the regents gov- erning advertising or any other rules.“ That ground was stricken out before the bill was passed. - ~ 18a ee ee. “[T]he Legislature has, ‘\tself, ended the W . upon which a license to practice dentistry may be sus- pended or revoked. The Legislature has not delegated _ to the Board of Regents power to ners offenses which shall furnish additional groun 5 Here again, I wish to emphasize that the Court in the present case has misconstrued its holding in Kee v. Baber, supra. We. simply held in that case that the Board may enact such rules and regulations as would be consistent with the power given it under the in a of Article It! is my y position that the broad regulatory powers given to the Board in Article 4556 were to be exercised by the Board in a manner consistent with Article 4563. The Legis- lature has not only enumerated specific grounds for license _ revocations, it has also set forth detailed and specific: of- fenses which would constitute violations of the Act. The Legislature has pre-empted the field of punishable offenses as well as grounds for license revocation. This action pre- vails-over its general grant of power to the Boar D to make such rules and regulations not inconsistent with this law as may be necessary for * * the regulation of the practice of optometry and the enforcement of this Act.” To further demonstrate that the Board is seeking rule- making power in the field of license — regardless of statutory limitations, I take up its par Board has the same license revocation powgrs as those given to the Supreme Court and the State Bar. In advane- ing this argument; the Board fails to distinguish between the fact that the Optometry Act enumerates the reasons for _ revocation of licenses, whereas the State Bar Act does not do 80. Article 320-1, Ses. 4, subdivision (a) a gent that the ._ * * 19a g ‘ “From time to time as to the Court may seem proper, the Supreme Court of Texas shall prepare and propose rules and regulations for disciplining, suspending, and disbarring attorneys at law; for the operati in- tenance and conduct of the State 3 a code of ethics governing the p essional conduct: of ae aay FS" The 46th a idee enacted both the State Bar Act and the Optometry Act. The State Bar Act authorizes the Su- preme Court to enumerate the grounds and procedures for Suspension or cancellation of licenses and the. means of en- forcement. This is not true with the Optometry Act. What- ever its reasons for making this distinetion might have been is beside the point; the fact remains that the Legislature in adopting the Optometry Act deliberately enumerated the grounds for cancellation and revocation and set up by penal statute the means of enforcement. Therefore, the Board has no authority to add new grounds and new pro- cedures for license. revocations under the general powers set out in Article 4556. See Kentucky State Board of Dental Examiners . Crowell, 220 Ky. 1, 294 S.W. 818; 819 (Ot. of App.Ky.1927);°2 Am. Jur. 2d 130, Administrative Law § 301; Cherry v. Board of Regents of the University of the State of New York, supra. Respondents in their conditional. . for writ of error and in a supplemental brief filed herein present addi- tional . oe ones the rule under r attack invalid. 1 1 “STATEMENT. or Responpent? Cross-Pomnts “Pinst Cross-Ponrr | re eee relationship to the health and wellbeing of the citizens of Texas, P 5 7 8 * 5 * . * 9 * . ‘ 4 . 3 0 LG : — hey Sr : 4 FU Sieh ES 598 3 : 3 * 8 r 8 * 5 8 : * * r N. 1 * j — * 13 1 think these . siecle’ 8 In my. opinion * ° tho rule is arbitrary and eapricibus and bears no ‘relation: „ chip to the health ad well being of the citizens of Texas. << The rule ia invalid because there was no substantial evi- dene to support a finding that the rule bears any reason- able relationship to the publie health and welfare. Respon- dents pleaded in the trial court that the “rule is arbitrary _, Snd-eapricious in that it does not have ‘or bear ang sub 3 A cͤ9§ᷓ,tantial relationship to the protection of the publie in its | Adaealings with persons licensed to practice optometry under wu laws of the State of Texag.” ‘The Court of Civil Ap. 8 Peals quotes some of the evidence on this question. The i record contains evidence concerning the care exercised in | te ‘selection of employee-optometrists by one of the Re- Fee eee This evidence relates to the edu- @ational ound of the optometrists ‘selected, The fact is that’ they: were ‘licensed by the Board and their practical \ | 4S > experiences; ete: With reférence to the “Professional Re- 2 sponsibility” phase of the rule under attack, one of the oS VVV s — 1 2 8 * ; pe — eg e a f — Coane and Court eae > see 0. Now, Dr. g noed, an optoimetrist in your organization, do von have any. Sears standing instructions as to how he shall-condyct the r peli icissiireee hee and responsibility iss ewe e at aA Yes, we do. eS . 5 8 1 5 a od aS „ And ‘what is tt: . Well, number one, the man, as T nentioned is solely responsible for his action with that patient, N. | - hié—whatevgr he does or doesn’t do with regard to the patient and his sole allegiance, his sole responsibility, is todo what inthis opinion is eren Or beet or in ’ the best interest of that patient or that patient's visual bare. This is the basis upon whith’ all of our offices operate and this js the way: 2 man conducts hitselt, just as though he wers in his own office.” hanced + The Board wholly failed to establish its contention ‘that * person employed by another optometrist i in astrade- name organization: lacks professional responsibility to this pa- tient. In fact this contention was refuted Mf the es testimony: eK esis 3 N Now i in all of your e Dr. ‘moj aa 78 5 an optometrist, and as a Board menber, now. something ‘ in excess of six years, I will ask you the point blank question, are optometrists practicing on a saiary, ‘ora - compensatory basis, on a solely ‘employed ‘basis; und m a trade name organis such us ‘yours, are they — ses ft get those who: practice solely er in | ! . pie ¥ a ~ Tae , N h e e — doctor 3 with you in one of your . offices where in his primary responsibility, to you or 2 Sadia patient whee epee examined N . By. all means to the un? . There i is a complete absenne ot testimony given by patients 8 e ‘others which even rentotely suggested that the care given ta patients in Respondents; establishments located through-* out the State was any less satisfactory to the patient, than the care: given in the offices of individual practitioners. There is no evidence that the practice of optometry under =i trade or assumed names in rn offices ‘injuriously af- -feets: the publie health. : It-is argaed that other jurisdictions have adopted rules Similar to the one under consideration. Grant this is true, os still the Board has made no showing that conditions: were _ the same in each instance. There is no showing that the : Legislatures in the other jurisdictions have refused to adopt the essential proseriptions contained in the rule 8 une en F the Texas es . the ‘anboyatiintional proseriptions contained in oe the Board: rule now before us. A court cannot substitute 4 int for that of the legislative branch of the gov- : 3 ‘There is no provision of the Board's rule here 8 that bears any reasonable relationship to the pub- Mare. It ig clear that the rule is advanced for the in 6 pr etion of a particular class rather than for 7 the protestion of the nerall; . There is no evidence er „ . : ers cee Se ne ae tion ney adop- a nn ew Se 5 a tion. See Kost v. Texas Real 1 3d 906, (Tex.Civ.App.1963; writ ref'd)« In clear and “unmistakable terms, and will not be ‘There is another reason which ey reason thus far advanced to support the argument hat yee te es ait 8 8 o Regie RK 3 fis 8 bee ie 0 ait): 7 a * = | Ci . : ] 5 ; | é ö } . 12 * ‘ 1 | j N : eek ° v. App., pted a * is perhaps’ greater nm ‘te _- 8 * s „ > ; ¥ 2 * > N ay - 1 ; — * * — * 3 * * — > a * 5 * J . * j — 1 1 R 5 ‘ 4 — Tey 10 * ( 2 D 1 | } — — — ̃ — ‘ 1 ‘ . . | 99852 8 ee | the vg bond be stricken down’ by the courts The rule nental right of an optometrist to law- ade Mis profession. I agree with the Respon- ‘the rule impairs the obligation of contracts. Not only that, it is arbitrary and capricious,in nature and dopted without regard to the law as enacted. by ure and in Violation. of both the state and fed- ns, The tule amounts to a taking of Respon- “ES gece e a jase of tn The rale has not been enacted kor the benefit of ‘the Trg but to the Fee and at cost of 3 more . hehe(Gienia:obeitiew'wtcnach its powers under the guise of ‘the exorcist of the Polis power of the State. ‘This Court in the ease of: Honston & T..C. R. Cos v. Dallas, 98 Tex. 396, 84 KSW. 648, 70 LH. A. oe ont ae, i has this to ga: PAQIENS SS al ee nr he power is woh al arbitrary one, tae’ Bas Wü itations. It is commensurate with, but does not ex- “ceed, the duty to provide forthe veal ids ofthe peso in their health, safety, comfort, and convenience 48 con- sistently as may be with private property ‘Tights. As those needs are, extensive, various, and indefinite, the power to deal with them is likewise broad, ind 6 and impracticable of precise definition or ‘imitation. But as the citizen cannot be ‘deprived of his property Ultbont due process of law, and as a'privation by forte shee F the power is exercised for the purpose of accomplish- ing, ‘and in a manner appropriate to the sccomplish- 5 ment of, the purposes for which it exists, it muy often i become necessary for courts, having proper regard to __ the constitutional daten ard referred fo in favor of the 2 citizen, . to 1 to the existende of the facts upon | de manner of its exercise, and it there has been an of ty richts under the guise of this ‘power without justifying ‘occasion, or in an tunreason- mo "Lawton v. Stel 152 u ee oo due, arbitrary, and “oppressive “way, to’ give t the Ea rece renee Ss are | et ecke tie h fee ie Bh ue 8 a Sart et ae: 5 aes Par 1 aes ; ae 2 ox — pray : . < 58 8 tcc: 3 2 RAEN een a Bement oe et Ot a 5 ai ot 40.8 tlo juitify ‘the state in thas interposing-its authority in behalf of the public, it must ppear— iret, that the interests ef the public generally, as | distinguished from those of & particular class, require . gach: interference;“and, second, ‘that the means are reasonnbly necessary for the accomplishment of the — purpose, and not unduly oppressive upon individuals. ' The legislature may not, under the guise of protecting “\ » the. public. interests, arbitrarily interfere with private _ business, or impose unusual and e restric- tions upon lawful occupations,” In the case of Smith v. Decker, 158 Tex. 416, 312 S. W. 2d 632: (1958), this Court held unconstitutional a statute which deprived’ citizens of the right to earn a living, a property right, In holding void the act there involved, we said: “Appellants having a vested property right in mak. . ry statutes, and being prevented from performing ‘their business otherwise lawful but for the statute in 5 question, we believe that we are permitted under the rule announced in Temp Hotel Operating Co. v. City cae ol Wichita Falls, [141 Tex: 90, 170.8.W.2d 217], supra, : do order the issuance of the injunction. | There it was : eee eee tor tge ee . enjoining the, enforeament of a criminal. when same is void and when its 1 \ ae — * 3 2 \ 3 5 g oe — 2. — . 3 een N u. cur. debe, 5 Fans . Boarp or mami orm. . at al., N N si 154 ree est “No. 16669. a asa a ) . Court of Civil Appeals of Texas. e 9 1 ‘ 80 * Dallas. 15 3 Suit was brought against the Texas Stats Board of Exam. iners in Optometry and cértain of its members for a judg- ment declaring invalid the professional responsibility rnle prohibiting the use of an assumed name in the practice of - optometry and imposing strict limitatio ons on the operation of multiple offices. and the splitting of The District Court,-Dallas County, Dallas A. J., entered a N “i — See aled, Tex, 388 8 W. 2d 400. Price Daniel, Austin, Douxlas n ‘Ba erg 75 — e e a8 ¢ Martin, Dallas, Babb; Waggbnct: Cart, „ Atty. Gen., Hawthorne “and John Reeves, Asst. This suit was filed by, appellants. Dr. Elis Carp, Dr. S. J. Rogers and Dr. N — — Texas State Board of Examiners in 0 try, hereinafter called the 5 Board, and also against a ut one of the members of the a Board individually. lie sb tor a judgment de. adunring invalid a rule adopted December 21, 1959 by the Board known as the Professional Responsibility Rule, referred to hereinafter as the Rule. Appellants also pray that the Board be permanently enjoined from enforcing the Rule. ‘Permission for appellants to bring this action. against the State of Texas was granted in Senate Con- current Resolution No. 8, dated January 15, 1962. N. Jay y Rogers, one of the appellants, though a mem- ben: the Board, voted. against the adoption of the Rule and. joined other plaintiffs in bringing this suit. e to. prob Cho ‘ne of in. ws Ar ee Bretton. of optometry, and to impose ~ ‘of fete; A eommary of its proviciins will be eee haan e ve KK 7 Yas . RS 5 bbe cy i tres — 7 25 x = . . . tes e . : - 2 — Ais ae 5 9 9 TRS 2 with 4 * 5 . 4 i Court in Texas State Board of Examiners in Optonistty . et al. v. Carp et al, 388 S. W. 24 409, 411. (108). The Doctors Rogers testified that they: maintain 82 offiess dt numerous locations in the State of Texas: ‘Since 1939 ey have operated under the trade name, Teras State Optical”. Dr. N. Jay Rogers testified that the average cost of setting up an office is between $10,000 and $12,000. In addition they usually are obligated to pay rent of 6400 or $600 per month under a/lease term of normally ten , years. Over a period of 24 years preceding the trial they have spent more than a million dollars to publieise their assumed nam. 8 a me nowledge of the patient, bat (0 the Role l not be inter preted to prevent partaershipa | pee ad Ay a Dr. Carp testifled that he operates 71 offices in the State of Texas. He uses several assumed names, among thein being Lee ‘Optical’, Luck One Price Optical“, “Mack Optical” and Mesa Optical”. He employs 84 optometrists. He testified that he had spent three or four or five million dollars. advertising the assumed name, “Lee Optical”. This suit was the subject of a mandamus proceeding be- fore our Supreme Court, Texas State Board of Examiners i | in Optometry v, Carp, supra. The suit had gone to trial in. the district court under the preponderance of the evi- dence rule. A jury was gmable to agree to answers to sev- eral special issues, 80 a mistrial was declared. The Su- preme Court in granting a writ of mandamus held that the case should have been tried under the substantial evi- dence rule. Since the facts had been ‘fully developed an and only issues. of: law remained to be resolvéd, the trial eourt was directed to enter an appropriate final, appealable judg. 5 under the substantial evidence rule. I its opinion the Supreme Court stated that there were two decisive questions of law in this case: (1) whether in . adopting. the Rule the Board acted within the powers dele- . gated to it by the Legislature; and (2) if so, whether the | Board's action was arbitrary, capricious or unreasonable because not supported hy substantial evidence. 3 an Following the pronouncement by the Supreme Court the district court proedded to render. judgment. The court held that the adoption of the Rule was within the lawful powers of the Board, was reasonably supported by sub- stantial evidence, and has been in full force and effect since its adoption. It was ordered that appellants Ace 255 nothing by their suit, In their first two points 0 8 . that (i) the Board in adopting the Rule exceeded the gated to it by 8 the Legislatare © and (2) that the on y * 155 n 2 8 9 6 8 8 5. y A Pr — — ih bn —— — — — 7 ° . V. A. C. S. We quote the material part of the statute: should ascertain and be guided by the Legislature’ 8 inten- N gtudy of available records convinces us that it was not the 3 0 — . 7 N > 5 af . : . * — > oe 3 1 : Ast 3 31a 0 8 b : eS pee Aes : * Rule js inconsistent with the sintute d which the Bark ths operates. We agree with appellants. and accordingty A clare the. Rule to be invalid and of uo foros and effect.’ 2S The subject of optometry is treated in our Civil Statutes — in Articles 4552 to 4566-1, Vernon's Ann. Civ. St. For „ penal provisions see | Articles er oy en 8 Amn. n Penal Code. 5 | | Tn Article 4568 the Legislatufe has ‘specifically listed the ten grounds upon which the Board in its diseretion may refuse to issue a license, or may — Fevoke or niga a ligense.. The powers of the Board are set forth ch ary 4556, “The Board shali have the power to make such rules and regulations not inconsistent with this law as may be necessary for the performance of its duties, the regulation of the practice of e and W forcement of this act.” The cardinal rule in shateutaey construction: i is that sollte tion. ‘We recognize that. Art. 4556, V. A. C. S. clothes the Board with “broad regulatory Sowers, many of which are - ‘somewhat discretionary in nature Ke v. Baber, . 157 Tex. 387, 303 S.W.2d 376, 378. We reeognine. aleg:thet a the statutes relating to optometry are to be liberally con- strued to effectuate the purpose intended by the Legis. lature, Art. 10, See. 8, V.A.C.S, Nevertheless, 2 carefal | intention of the Legislature to clothe the Board with the = = power it has exercised in adopting the Rule. In 7 ae Which follow we shall state the. reasons which n. im- W us to this conclusion, 5 f | en 32a (i) By naming the ten grounds for refusing or canceling a license the Legislature in effect expressed its intention to exclude all others: The maxim, expressio umius est _exclusio alterius (the naming of one thing excludes an- other) is applicable here. Though not conclusive the maxim has been pronounced a logical, sensible and sound rule of statutory construction. 53 Tex.Jur.2d 205-206. It has often been applied in determining the powers which have been or have not been delegated by the Legislature to ad- - ministrative boards, commissions, licensing authorities and others. Commercial Standard Ins. Co. v. Board of Ins. Commissioners, 34 S.W.2d 343 (Tex.Civ.App.); Foshee Re- fining Co. v. State, 73 S.W.2d 1098, 1100 (Tex. Civ. App.); Stati v. Mapel, 61 S.W:2d 149, 152 (Tex. Civ- App.); State F. Mauritz-Wells Co., 141 Tex. 634, 175 S. W. 2d 238; Ex parte Halsted, 147 Tex. Cr R. 453, 182 S. W. 2d 479, 484; Harris County v. Grooker, 112 Tex. 450, 248 S. W. 652, 655; Funtress v. State, 88 S. W. 2d 636, 643 (Tex. Civ. App.); McCamey v. Hollister Oil Co., Tex. Civ. App., 241 S. W. 689 (aff. by 115 Tex. 49, 274 Aw. 562); Clark v. Briscoe Irr. Co., 200 S. W. 2d 674, 682. che maxim has also often been applied in other jurisdictions. See Sutherland, “Statutory - Construction”, Vol. 2, p. 412, and 50 Am. Jur. 238. > (2) A principle of statutory construction closely akin to the expressio wnius maxim is this: an administrative agency may implement and fill in details relating to statutory pro- visions listing or naming powers or activities granted. or ‘proscribed,’ but the agency may not by its own’rules ex- ‘ tend or add to the powers or activities listed in the statute. We think the principle is applieable here. In taking upon itself the task Of listing in Art. 4563, V. A. C. S. the grounds upon ‘which a- Hoense to practice optometry may be denied or dbanoeled the Legislature plainly manifested its inten- ee itself and not to dele. 83a gate it to- the asd and the Board lacks anthority to add to the gro» ends named in the statute, Kelly v. Indus- trial Accident Board, Tex. Civ. App., 358 S. W. 2d 874, 876 Teacher Retirement System of Texas v. Duckworth, 1535 Tex. Civ. 141, 260 S. W. 2d 632 (opinion of Court of Civ. App. adopted by 153 Tex. 141, 264 S. W. 2d 98); Board of Ins. Commissioners v. Texas | Employers Ins. Ass'n, Tex. Civ. App., 189 S. W. ad 47; Ketring v. Sturges, 372 8.W.20 104 (Mo.); Golding v. Schubach Optical to r a Utah 32, ren | (3) We believe the legislative benin was plainly mani- fested in 1953 when the Legislature rejected a proposed . statutory amendment which would have prohibited the prae- ö tioe of optometry under an assumed name. The Beaumont Court of Civil Appeals on October 23, 1952 rendered a . decision upholding the right of appellants Rogers to prac- tice under an assumed name. Southwestern Bell Telephone Co. v. Texas State Optical, 253 S.W.2d 877 (1952), no wr. hist. In reaching its decision the court pointed out that neither under common law nor under our statutes was such praetice prohibited; and that it was for the Legislature, not the courts, to change the law. The record before us shows that following this judicial decision House Bill No. 5 was introduced in the. House of Representatives in 1953. The Bill as drawn prohibited the practice of optometry under an assumed name, and limited the number of. offices of each practitioner to two. The Bill was rejected by the House. Thus the Legislature expressed its intention not to prehibit the practice of optometry under ap assumed name and not to prohibit the operation of multiple offices. The rejection was all the more significant because it came with knowledge that the Beaumont court had held that in the absence of a statute forbidding it, the signe under an assumed name was not * : . 3 „ In Grasse v. Cannon Ball Motor Freight Lines, 126 Tex. 154, 81 S. W. 2d 482, 485, the Commission of Appeals in an opinion — by the Supreme Court had this to say: we come to examine ‘the legislative history of section 11 of article 911a, supra, we find that there is no escape from the conclusion that it was the legis- lative intent that such statute should not be construed © 80 as to allow the insurance company to be joined in the same suit with the bus operator. When such stat- ute, section 11, supra, which was contained in HB. No. 50, Regular Session 40th Legislature, 1927, was pending in the Senate, an amendment thereto was offered to apply to such section. “This-arhendment pro- vided in éxpress terms that the bus owner and his insurer could be sued in the same action. This amend- ment was duly adopted by the Senate, and was con- tained in the act as it originally passed that body. a Senate Journal, 40th Legislature, Regular Session 1b pi. 678. Such provision was not in the act as it orig- inally passed the House. After the act, of which sec: tion 11 is a part, was passed by the Senate with amendments, the bill was returned to the House as ‘amended, and the House refused: to concur in the Senate amendments. House Journal, Regular Session, 40th Legislature, 1927, p. 1175. The bill went to a free conference committee. The report of this com- mitteg, which was adopted by decisive majorities in doth Houses, eliminated the above-mentioned Senate ‘amendment. We think this history of the act evidences 5 a legislative intent not to permit insurance companies under section 11, supra, to be joined in damage suits uin the same ‘action’ with the bis owners. Love v. Wilcox, 5 sae at e (70 ALR. 1484}. 3 0 8 75 — At is evident that section 11 of article 9112, supra, does not expressly authorize the joinder of the insuret © in damage suits against the insured. ‘If such right id held to exist, it must be put into the statute by impli- cation. No court should read into a statute by implica- tion that which both Houses of the Legislature have expressly rejected by decisive votes. On this question we will here quote from Judge Greenwood's opinion. in Love v. Wilcox, supra: ‘No court could justify putting into a statute by implication what both Houses of the Legislature had expressly rejected by decisive votes. The Honse and Senate Journals leave no room for doubt of the legislative intent to deny the power exer- cised by the State Committee in seeking to debar names from the primary ballots under the resolutions of Feb- . ruary 1, 1930. Once the legislative intent is ascertained, . _ the duty of the court is plain. To refuse to enforce statutes in aceordance with the true intent of the Legis- _ lature is an.inexcusable breach of judicial duty; because an unwarranted interference with the exereise of law- fal, legislative authority.“ “» a N . Appellees frequently cite and quote from the opinion in Kee v. Baber, 157 Tex. 387, 303 S.W.2d 376. (1957). In that : ease our Supreme Court passed on the validity of three rules adopted by the Board: (1) ‘the “Bait Advertising Rule“, (2) “Basic Competence Rule” and (3) the “Cor- porate kee Rule“ It was held that these rules were valid; that the Board in adopting them did. not exceed the ‘powers delegated to it by the Legislature e; that the rules were not contrary to or inconsistent with the Legislative Aet; but were simply 8 @ proper attempt by the Board to implement the statutory provisions, especially Section (b) of Article 4563 pertaining to fraud, deceit or ne. | tation in the practice of optometry. After a careful study of the Kee case and the three rules of the Board there under scrutiny we have concluded that the holdings there are not applicable here. The Supreme Court said that the three rules were adopted by the Board : to implement and “to fill in the details ‘relating to proscribed actions of the statutory provisions. Since they implement | but do not undertake to add to the list of statutory pro- nmaibitions listed in Art. 4563, V. A. C. S. they are not invalid. As 3 mated in this 2 we » think the Rule now Ga ist nan now ‘before us we pay Beck ae a statute which * Sees tat eek form in ote Be woe Lens « 8 gy ee Reh mee 2 * ry ; 15 1 2 before us for cousiderstion:'sdoes: atten: tor: add to. the : an prohibitions in Article 4563, though the Legislature has de- rn the Rule. 5 Appellants' first two poiats on appeal are n In their third and fourth points appellants contend that the Rule is arbitrary and capriciots and has no support in substantial evidence. There is no merit in these points. If the Rule invalid only the Board in adopting it acted beyond the powers delegated by ghe ‘Legislature. — lants’ third and fourth points are overruled.. The substance of appellants’ points five, six, seven. el eight is that the Rule violates. both the: Federal and State Constitutions because it i impairs the obligation of contracts,. takes or destroys appellants’ property without due process, bears no reasonable Telationship to the health and well being of the citizens of Texas, is. retroactive in its legal effect and permits the Board to delegate unlawfully its rule- making powers to outeiders (members of the N 5 of optometry). . a . the Legislature had delegated authority to the Board to adopt the Rule we would be compelled. to say that the. - _ Board’s action is supported by substantial evidenee:; The statement of facts includes nearly 3,000 pages of testimony of many witnesses glus numerots exhibits. We declare A It the Rule i is eee ee it is 0 1 Yan: we. have held) in adopting it the Board exceeded the powers which the Legislature delegated to it. It is not unconsti- tutional for the reasons urged by appellants: It has long been settled that legislative bodies and administrative agen- cies with. proper delegation of authority may regulate’ e pro- fessions and businesses under the police power. Texas State 8 Board of Examiners in Optometry v. Carp, Tex. , 388 S. W. 2d we: 4000; Kee v. Baber, 157 Tex. 387, 303 S. W. 2d 376; Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S. W. 2d 79, 130 K. L. R. 1053; Texas Nat Guard Armory Board v. McCraw, 132 Tex. 613, 126 S. W. 2d 627; Sherman * State Board of Dental Examiners, Tex. Civ. App „116 S. W. 2d 843; Turner v. Bennett, Tex. Ci App., 108 S. W. 2d 967; International & G. N., R. Co. v. Railroad Commission of Texas, 99 Tex. 332, 89 8. W. 961; Lichter v. United States, 334 U.S. 742, 68 S.Ct. 1294, 92 L. Hd. 1694; Lewis v. Michi- gan State Board of Dentistry, 277 Mich. 334, 269 N. W. 193 Williamson v. Lee Cytical of Okla., 348 U. S. 483, 75 S. Ct. 44561, 99 L.Ed. 563 Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608. 55 S. Ct. 570, 79 L.Ed, 1086. Points _ five, six, seven and eight are overruled. bear. | 25 Appellants ask for but the trial court denied an injunc- tion. Though we have declared the Rule invalid we see no pecasion for the issuance of an injunction. The question of injunctive relief will arise only if and when the Board un- 3 dertakes to enforce the Rule. . Because we believe that the Board exceeded its delegated powers in adopting the Rule we reverse the trial court’s ‘judgment and here render judgment declaring the Rule in- valid, and of no force and effect. The court’s refusal to , SS e. eae 8 _ Reverend and rendered in Achim and afirmed in part. 8. in the Supreme — . — (1965) N N re, x et al., Relators, = ‘ 5 v. . | ’ 3 N ee Ellis Carp et al., Respondents, No. A-10258. Supreme Court of Texas. Feb. 17, 1965. Rehearing Denied April 7, 1965. Original mandamus proceeding. The Supreme Court, os Steakley, J., held that where action for declaratory n ment as to validity of professional responsibility rule adopted by state board of examiners in optometry had been ö fully developed in trial court and attack on rule involved only questions of law, and trial judge was mistaken in his belief that answers by jury to specific issues which he sub- mitted were essential to rendition of judgment, the case was ripe for judgment and writ of mandamus was available to compel rendition of judgment. pie e of Decision i in accordance with ade a Smith, J., dissented. Ma e — Reeves, net 8 Atty. Gen., Tom Gee and Will Garwood, Sp. Asst. Attys. r _ Niemann:&t Babb, Austin, for relators. : ~ Douglas E Bergman, Dallas, Quentin Keith, Keith, tie baffy & Weber, Beaumont, Jake. Jacobsen, C. K. Richards, = Austin, for respondents. : Sreaxiay, Justice. i 1 Relators are — a the Texas State Board of Examiners in Optometry, and - thers.’ Respondents are Honorable Dallas Blankenship, Judge of the 101st Judicial District Court of Dallas County; \ Ellis Carp, & licensed optometrist practicing under various ‘. assumed names, including Lee Optical, Luck Optical, One Price Optical, Douglas Optical, Plains Optical, Mesa Opti- | l, Mast Optical ; | 8. J. Rogers and N. Jay Rogers, li- censed under the-assuniéd name ot _ Texas State Optical. — — tt . Judge declaring a mistrial in (in the 101st Judicial District D 1 : under attack in the l. ) dnd farther com. - . a ‘ by e 3 ts g * 4 Board of Ex- 2 — that this 4588. Re. regulations not in- - Article 4556 “to make such rules and ! Civil Statutes of Texas, 1925. It is On December 21, 1959, the Board ‘sdopted what is entitled i the Professional Responsibility Rule, the relevant provi- f optometry, and the enforcement of the Optometry Act.“ sions of which are quoted in the footnote.’ The Board is an administrative agency of the State of Texus created under the provisions of Article consistent with this law as may be necessary for the per- formance of its duties, the regulation of the practice of * * cc aia tlh * nt ö ae ane — 4 | 42a D : g Carp and Robie immediately attacked the Rule by suit i in the nature of a declaratory judgment ‘action, since which .time the Board has been under successively issued court orders restraining the enforcement of the Rule. 2 in an office listed under the name of the individual optom- etrist or partnership of optometrists by whom they are employed. In event of the death or retirement of a part- ner, the surviving partner or partners practicing optom- ‘etry in a partnership name may, with the written permis- sion of the retiring partner or the deceased optometrist’s widow or other legal! ~ wae ag the .case may be, continue to practice wi ame of the deceased partner F in the partnership name = N25 0 not to exceed one (1) year from the date of his death, or during the period of administration of a deceased: partner’s estate as pro- | vided by Article 4563, as amended, Revised Civil Statutes of Texas, whichever period shall be the longer.. d. Use, cause or allow to, be used after the elapsing of a 4 reagonable time not to exceed one (1) year after the effec- : tive date of this rule, his name or professional identifica- tion, as authorized by Article 4590e, as amended, Revised Civil Statutes of Texas, on or about the door, window, wall, directory, or anyopign or listing whatsoever, of any office, location or place where optometry is practiced, un- less said optometrist is actually present and practi op- a ‘ tometry therein the hours such office, location or place of 3 is open to the public for the pinetice of optometry. „ 4. Practice or 3 after the ene of a „ time not to exeeed one (1) year after the effective date of this rule, to practice optometry in any offlee, location or place of practice where any name, names or professional 9 n wall, direc- + tery, or any sign or er, or in any manner \ used H Oe ee Ot tah males cx tad wo \ dicate that such office, location or place of practice is Rare operated, supervised, staffed, directed: or attended by any pers person not actually present and practicing optom- etry therein duringethe pe 5 such office, location or place ))%%CCß»³ͤ W.. ĩ eer OOP The requirement of mbparagraphe d and.s above tht ap ‘actually resent’ locatio 5 — bling name ot tte poe shal 43a It is necessary to describe only briefly the various pro- . ceedings and legal maneuvers of the parties preliminary to the events in court which brought about this mandamus Proceeding The suit attacking the Rule was placed on the jury docket upon the motion of Réspondents Carp and Rogers. A Pre-trial hearing was held. on September 12, 1963, at which the Respondent Judge Blankenship over- ruled the motion of the Board to strike the cause from the be deemed satisfied if the optometrist is, as to such office, > location ox. place of practice, eitber: 2 | (1) physically present therein more than half the total number of hours such office, location, or place of practice ig open to the public fo practice of optometry. during each calendar month for at least nine months in each calendar year; or — “(2) physically present in such office, location, or place of practice for at least one-half of the time such person conducts, directs, or ry any practice of optometry. Provided that this rule shall not be Z interpreted as requiring the physical presence of a ; person who is ill, injured, or otherwise incapacitated “temporarily: 28 | 4 * The requirement of, subparagraphs d and e above that an optometrist be ‘pra€ticing optometry’ at an office, location, or place of practice holding his name out to the publie shall be deemed satisfied if the optometrist regularly makes personal examination at such office, location. or place of practice of the eyes of some of the persons prescribed for therein or regularly supervises or directs in person at such office, location or place of practicg such examinations. - “Section 2. The willful or repeated failure or refusal of an op- tometrist to comply with any of the provisions of Section.1 above shall be co: idered by the Texas State Board of Examiners in ; tometry ‘to constitute prima facie evidence that suclt opto is guilty of violation of Chapter 10, Title 71, as — ‘of the Revis Civil Statutes of Texas, and shall be sufficient ground for the filing of charges to.cancel, revoke or auspend his license. The charges shall state the speeifle instance or instances in which it is alleged that the rule was not complied with. Alternatively, or in audition to the above, it shall be the duty of the Board to institute and prosecute an action in a court of competent jurisdiction to re- strain or enj ining the violation of any of the preceding rules.“ 5 448 0 e eal, ee tage jected to Wiel before the court. with the issues to be determined as matters of law 0 under the substantial evidente rule. Parenthetically, it may be noted that at all proper times in the course of the subse- " quent trial the Board reasserted this position by proper motions, all of which were in turn overyuled. Prial commenced on October 21, 1963, and eontinued:t un- til November 13, 1963. The court submitted twelve special issues to the jury inquiring, in brief, if the members of the Texas Optometric Association, Ine. entered into a con- spiracy with a majority of the members of the Board to use powers of the Board to prohibit the practice of op- tometry under trade or assumed names and multiple offices; if enforcement of the Professional Responsibility Rule re- sulted in the stifling of competition in the practice of op- tometry; if the persons eonspiring, if such were found, did _ go for the purpose of stifling competition in the practice of optometry between Relators and Respondents; if enforce- - ment of the Professional Responsibility Rule would in- crease the cost of spectacles; if the persons conspiring, if such were found, did so for the purpose of i increasing the cost of spectacles; if the Relator Board acted arbitrarily _ in Adopting che Rite; if enforeement of the Rule will lessen competition ; if the Rule was necéssary in the regulation of the practice of optometry by the Board; if the Board was = acting in good faith for the purpose of regulating the ice 0 etry.in adopting the Rule; if there were 0 reasonable relationship to the protection of the public | alth and welfare of the citizens of Texas; and if in the n of the a, the Board followed the ao eis set 718 8 r 1471 Dat. aoe F F The * — November 13, 1963, * 2 7 f dy the Defendant Board (your therefrom and. on Menai 14, 1963; thie Relators filed a motion for 5 ‘the court to proceed to judgment and to the entry of judg. ment. On May 25, 1964, Judge Blankenship overruled this ; motion of Relators and declared a. mistrial: This mandamus : proceeding resulted. = 2 N Respondents present two pointe, They are, , first; that The writ should be denied because of the failure of the Relators to seek substantially the same relief in the Court of Civil Appeals. “; and, second, “Granting the validity of the Rule is to be determined as a question of law, the Trial Court has authority to determine from a preponder- ance of the evidence the i issue of conspiracy in restraint of trade. 1 Respondents Carp and 8 variously assert be “injected a fact issue of ‘conspiracy’ in the ‘declaratory © judgment proceeding, and in so doing raised the i issue that acts. of an official not lawfully authorized are not acts of the State.”; that “the Rule was not adopted in good faith for the’ ee of protecting the public health and well- being, but upon the contrary as a result of a conspiracy between the individual Board members (who were also members of Texas Optometric Association) and the other members of TOA for the purpose of destroying eompeti- tion then being experienced by such conspirators.”; “that the rule was the product of the ee and was there- * fore invalid.” The allegations of these eee upon which the foregoing rest are Fk in the footnote.” N, Jay Rogers, dissenting er de ewe prs a ing ro Pia sd — 46a . . The izsue in the suit in the district court is the validity of the Professional Responsibility Rule promulgated by the Board. The issues in this mandamus.proceeding are whether the determination of such issue in the district court presents galy questions of law, and, if so, whether this ae Court: should direct the district court—Respondent- Judge — Blankenship—to proceed to judgment, either sustaining or invalidating the Rule upon the basis of the trial record made before him. inet Shee | Board is also u member. In this connection your Plaintiffs now “Plaintiffs further show unto.the Court that the said Board, and respective Courts; that of such suits with ie Association, Inc., to he same have 270 17 attorney for ‘favorable‘ruling on the Parties bona fide con- ints State Board vf Ex. that such actions on | f Q ee methods they adopt or_the--motives-or purposes which prompt their action. Railroad Commission of ‘Texas v. ~ Galveston Chamber of Commerce, 105 Tex. 101, 145 S. W. 573, 580 (1912). The legal effect of the administrative act upon the parties affected is the judicial inquiry. Railroad’ Commission of Texas v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967 (1937 ). Where, as here, the adminis- trative action is quasi-legislative in nature, and apart from. process of Jaw and is in violation of Plaintiffs’ constitutional rights, spirators; And, by reason of. thé foregoing ‘oath, the District Court of Dallas County, Texas, in the exercise of its equity power and jurisdiction. — ee pestegiped and - enjoined said Defendants from so conspiring in the had been pointed out to said, Board that the effect of the adoption aof such rule would be tantamount to the destruction of the practice of your Plaintiffs; Nevertheless, the said individual board .mem- bers, purporting to act in their official „A but motivated . dhe question of — in its phim, its review cy a the judiciary is constitutionally limited ta a determination of questions of law, i. e., whether the action is within the powers delegated to the agency and, if so, whether the ab- tion is arbitrary, capricious or unreasonable because not -reasonably supported by substantial evidence. Kee v. Baber, 157 Tex. 387, 303 S. W. 2d 376 (1957); Hawkins v. Texas Co., 146 Tex: 511, 209 S. W. 2d 338 (1948); Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1946) ; Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, - S.W.2d 420 -(1946). 8 ae ' 7 Respondents appear to acknowledge the 8 by i their statement in their Point No. 2 that „granting the validity of the Rule is to be determined as a question of law * *.” What Respondents seek to assert is an addi- tional iype of attack against the order here, namely, that it is the product: of a conspiracy in restraint of trade as to which are fact questions to be decided by the pre- ponderance of evidence standard. This Court in Kee v. Baber, 157 Tex. 387, 303 S. W. 2d 376 (1957), in which three similar rules of general application promulgated by the Optometry Board were likewise under attack, recognized that broad regulatory powers, many of which are discre- tionary in nature, are legate’ to the Board- We said of i that controversy: c between two groups of optometrists, one of which em- _. phasizes the merchandising factor of the profession or occupation and contends that the cost of suitable . pe rye | 4 eliminating numerous unnecessary steps and practices 1088 . which are insisted upon by the opposing group ‘who re- gard such procedures and regulations as necessary to _. safeguard the public health. To our minds this base conflict in Texas has been resolved by: the Legislature and the optometrists themselves in favor of the group : favoring strict regulation essentially by the profession.. ie „ We also said: - ‘3 : : tee “Optometry has been classified by the Legislature as a profession and as such subject to a. degree of self- regulation. As is the ease of most professions, à cer- tain proportion, generally a majority group, in a sense do tell the other members of the profession ‘how to run their business.“ This is a necessary adjunct or burden of regulation which the Legislature has deemed necessary to prescribe in order to safeguard the public 50a Board “shall possess the necessary qualifications to prac- tice o Those appointed to serve on the Board, es is true of all administrative agencies, necessarily bring their individual. professional viewpoints with them. These may or may not be shared by either a majority of the Board, or by a thajority of the profession itself. But the members of the Board having the same professional objec- tives will necessarily. join ‘together in acting upon rules membein of said association.. On the other hand, there is a large group of licensed optometrists who have adopted a different ap- proach to the practice of optometry and engage in the practice thereof er trade or assumed names and in multiple offices or establishm ats. Daring the st decade there has been a great deal familiar with * piece of litigation), and the practitioners who. belong to the Texas Optometric Association, Inc.,’ have been successful, generally, in p the appointment to the Defen- | dant Board of a majority of persous who are members of said As- Sila and regulations to govern the profession, and those in m majority will prevail. The views thereby translated into governing regulations will coincide with the views of others, and perhaps a majority, of the profession. But this is not unlawful conspiracy ; it is neither unlawful in itself nor is it the accomplishment of a lawful objective by unlaw- ful means. Of. State v. Standard Oil Co., 180 Tex, 313; 107 S.W.2d 550 (1937). The invalidation of an administrative order apart from, and regardless of, its validity as a matter of law when measured by the standard of the substantial evidence rule requires a showing of circumstances under which it would be shocking to the judicial conscience to permit the order to stand. This requires, in turn, a showing of conditions comparable in seriousness to oorruption, fraud, dishonesty or bribery in the promulgation of the administrative order. This is not alleged here, and there is no contention that such is shown by the evidence in the trial of the case. It is in the public interest that orders of administrative agencies shall not stand when they are the product of sinister acts and deeds which shock the judicial céascience. But fearless administration is also in the pub- lic interest; and this is strengthened when administrative agencies are given protection against harassment or intim. dation. by suits which do not meet the test we have indi- cated.* ria’ : eis waa DS dae tins The issues submitted to the jury in this case;*previously reviewed in the forepart of this opinion, illustrate the fore- g. An affirmative answer to all of the issues would not «Compare the reasoning supporting the rule of federal and state jurisdictions that e officials are immune from tort: liability even when it is thst they acted malicionaly, See Sanders ard.: —————— a the Board by the Legislature, and if reasonably supported dy substantial ‘evidence, there can be no unlawful con- | spiracy in the fact, if it be a fact, that a majority of the 4 Relator Board joined in promulgating the Rule, and in using the powers of the Board to prohibit the practice of optometry under trade or assumed names and by means of multiple offices. Nor is the ‘Rule rendered unlawful because it will lessen competition and increase the cost of spectacles. The Board cannot: have acted arbitrarily if it acted within its powers and if ite aetion is reasonably supported by substantial evidence. Its motives are not the subject of judicial inquiry. The question of whether or not there is a reasonable relationship i in tha promulgation of the Rule to the protection of the public health and welfare of the _ Gitisens of Texas is, agg of law, i. e., whether or not the Board. . its sta statutory cusses in promulgating the e n to whieh this proceeding relates. The attack by Respondents Carp and. : the Professional Responsibility Rule in- vox any questions of law. Article 1734, Vernon's notated Texas Statutes, authorizes this Couft to issne the writ of mandamus “* * * to compel a judge of the district court to proceed to trial and judgment in a cause agreeably de there sand usages of lar In point by Err e e e e by he tia 77 Bis 8 5 e ö Brinck, W 8. F. ieee a a8 Woe) | South. laifa Greyhotind Lint, Inc. v. Richardson, 126 ‘Tex. 118, 86 S.W.2d 781 (1935). In these cases‘ the action taken by 3 ths trial eourt involved a determination or ner there was conflict in the findings of the jury with 1 t ö fact essential to the rendition of a final judgment, _ determination was not regarded as an exexpise of a ju function by the trial court such as would defeat the writ mandamus. It was stated in Cortimeglia and reiterated in N Southland Greyhound Lines, Ind.: : a =. « The judge of the court, however, has no arbitrary « right to refuse to enter judgment on a verdict which constitutes a finding on all the facts tendered im the pleadings necessary to the rendition of . when it appears from the verdiet itself refusing to render and enter judgm ereon that ° +s such refusal is arbitrary and not based on the éxercise of discretion, mandamus will lie to require entry of . judgment. In such case the action of the judge is in effect a refusal to proceed to judgment in the trial of the cause. sien See So it is here. The case has been fully developed in the trial court and is ripe for judgment. The trial judge was mistaken in his belief that answers by the jury to the spe- dial issues whichrhe submitted were essential to a rendition of judgment, just as in an occasional case a trial judge may be mistaken in his belief that there is conflict in the jury _ findings. In such instances a judgment should be rendered, and such action may be compelled by mandamus. The writ. im no way controls the judicial discretion of the Responder Judge. It does not direct that he enter a particular judg- a Laat . 3 5 ; . € 0 ‘ ment.’ The circumstance that the jurisdiction-of the Court of Civil Appeals was not first invoked does not defeat the 1 jurisdiction of this: Court. State v. Ferguson, 133 Tex. 60 ‘- 125 S. W. 2d 272 (1939); Hidalgo County Water Improve- - ment District No. 2 v. Blalock, 157 Tex. 206, 301 S. W. 2d “i „ . 593 (1957); Bee. also Yett v. e 115 Tex. 175, 268. S. W. 5 "715. (1925). | 2 „ We express no opinion by pil or 5 upon the question of whether the action of the Board in pro- mulgating the Professional Responsibility Rule was be- yond the powers delegated to the Relator Board or was arbitrary, capricious. or unreasonable. because not reason- ably supported by substantial evidence. These are ques- tions of law to be initially determined by the Respondent = * and are not before us in this mandamus = 0 are confident that the Rekpondent trial 1 vil ; proceed in aceordance with this opinion without the neces- _ Sity for an actual issuance of me writ of mandamus. Sarre, J., dissenting. 2 awd, mat ee 5 en - | Ne 5 Sun, Justice © (dianenting). I respectfully dissent, The Court has, in effect, held that the Respondents failed to plead in the trial court facts Suff. dient to show that the individual members of the eel re) entered into a conspiracy for the purpose of destroying 77 is - competition between the individual members of the. Board . 1 ox Simi th cama whi the ety of fugit onthe leading 5 = Tania v. N 5 | 2 Tos ther the App 180, gia prow). a wf * 3 and those whom 5 represent as e of the Texas Optometrie Association and the Respondents, My position, simply stated, is this: H the pleadings alleged, and there was some evidence to support an allegation that the Pro- fessional Responsibility Rule under attack was not enacted in good faith for the purpose of protecting the public - a _ health and well-being, but was the result of an actionable conspiracy entered into between the individual members of 5 the Texas State Board of Examiners in Optometry, ee such issue or issues were tried by. consent, the trial judge’s action in submitting the i issues of conspiraey to a jury for” determination was in the exercise of his judicial discretion, and this Conrt is without authority, in mandamus proceed- ‘ings, to control the exercise of such discretion. | Gigs. This is not a Proceeding brought solely to test the va- lidity of the rule, but the question is whether the pleadings ? and the ‘evidence raise issues of fact to be submitted to the trier of the facts in a trial de novo, to be determined by a preponderance of the evidence rather than the substan- ‘tial evidence rule. In this connection, it should be stressed that the validity or invalidity. of the » rules is not anne this 52 Court. In my opinion the legal effect of the. n was to charge that the individual members of the Board had en- tered into a conspiracy, which is an actionable conspiracy | under the anti-trust laws of the State. These acts, if com- mitted, were unlawful acts of officials, hence not acts of the State. Therefore, the issue was. properly tried under 2 the preponderance of the evidence rule. See Cobb v. Har- . rington, 144 Tex. 360, (190 8. Wad 709, 1B: ALE. aed 945). In] discussing or 1 the e of ‘fact ¢ con- nnn of both e and the Re. 56a spondents, I wish to make it clear that my comments are in no way to be construed as an expression of an opinion as to how the trier of the fact issues, whether raised by the pleadings and the en or tried by consent, shofffa answer the issues. n The pleadings are e 1 the statement of facts 2 consists of some three thousand pages. I have read the _ pleadings but not che statement of facts, therefore, I do not propose to second guess the trial court as to the evi- ns dence but rather choose to think that it was the considered o opinion of the trial court that the evidence which had been adduced before the court and jury in a regular trial was sufficient to raise an issue of fact on the question of con- spiracy. Tus Court a not reach. the 3 of evnliantion of evidence, but holds that the pleadings fail to allege an un- ., lawfal conspiracy and that the acts charged against the individual members of the Board were neither unlawful in themselves nor did such alleged acts bring. about the ac- complishment. of a lawfal objective by unlawful means. Tube allegations in Respondents’ pleadings show a studied desigi on the part of the members of the Board (except Rogers) to pass à rule (the rule under attack), which e- eseded statutory authority and would ultimately destroy the business of their competitors. Furthermore, it was al- _ leged that these Board’ members were also members of the Tee Optömetrie Association, an ‘organization with a 3 be e dines e rare to the business methods 7 aaf and lawfully used by the Respondents in the operation of ‘their profession as‘ optometrists. It was al- : leged that by virtue of the conspiracy, the Board members bac, in effect, abdicated their official Positions and were 8 e * gain and that of their fellow was implicitly followed in the adoption of the “Professional oe 57a doonspirators, the Texas Optometric Association. It was alleged that the Board meers (except: Rogers) paved the way for such accomplishment by the adoption ok another rule known as the “Rule Making Procedure Rule.“ ? The petition alleges that the “Rule Making Procedurg Rule? Responsibility Rule,” and that both rules were unlawfully promulgated. for the “sole purpose of hindering and. de- - stroying the competition: which said Board members, in their individual capacities, and members of the Texas Op- tometrie Association, Inc, may encounter in their per- sonal and day to day activities in their practice of op- _ > tometry.” 25 * . eo) The pleadings further alleged that the effect of the rule, . which they claim was, adopted to destroy competition, would shall be valid unless a minimum of fifty-one per cent ＋ ati of the have voted at the election at which ure oe Hyles are ated on; d each and all of such rules and regulations that have received two-thirds of the votes east shall. be b. . das ap that such rule or regulation is | i : F 5 F i J He 58a . s “be en to the destruction of the prectins of your Plaintiffs; nevertheless, the said individual Board mem- bers, purporting to act in their official capacity, but mo- tivated solely by their own selfish interests and the selfish interests and desires of the. Texas Optometric em Inc., proceeded with the adoption thereof.” The trial court defined, in its charge to the jury, civil conspiracy in these words: Tou are further instructed that a civil conspiracy is a combination of two or more private persons, firms or associations by concerted action to accomplish’ an ’ unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.” This is a correct definition and oie that has been ap- proved by the courts. See Bartelt v. Lehmann, Tex. Civ. App. (1947), 207 S. W. 2d 131, 132, wr. ref. Pursuant to Article I, Section 26, of the Constitution of Teras, our Legislature adopted =e 7429, Vernon’s An- _ notated Civil Statutes, which reads: “Any and all trusts, monopolies and conspiracics in eae of trade, as herein cent, are prohibited and declared to be ee: ; | 1 is notin accord with the Constitution of Texas and the las of Texas to condone the selfish acts of one group of a certain profession which-would lead to the destruction of the practies and the on of the competition of — — 157 Per. 387, 303 8 W. 2d 876 (195 d that “* * * bYoad : sy trys Ged f° Bard The Court, however, overlooks the statement in Kee v. Baber, which distinguishes. that case from this. In Kee v. Baber, we said: | 51 ai “The gravamen of appellants’ attack upon the three 0 rulée in question are. that they are inconsistent with the provisions of Article 4563. We do not so regard them. The provisions of the legislative enactment are broad and general in scope. An intention to vest the Optometry Board with authority to fill in the details relating to the proseribed action by members of the profession is indicated. * * *” = a8 Although the Court in the present case points out that _ Respondent Carp intervened in Kee v. Baber and attacked the rules there under consideration “on the basis of similar allegations of conspiracy,” and that the issue of conspiracy '-— was “put aside by stipulations of the parties,“ the Court now cites Kee v. Baber as authority for its holding that no conspiracy has been pleaded. tees ie The Court dismisses the conspiracy charge in this case by observing that this is just a professional dispute and that a rule has been adopted. which happens to. please the members of the Board (except Rogers) and the members of the Texas Optometric Association, Inc., a corporation, its members allegedly having been ‘unlawfully given the authority to finally, in effect, enact the rules for the Board to follow. The conspiracy charges are more serious thar the Court seems to realize. 1 The trial court held the pleadings alleged a conspiracy in restraint of trade, and the trial court was of the opinion that there was some evidence showing that a conspiracy produced th rule in order to stifle competition in the sale of eye Whether it was urged that there was no evi- & 60a dence of conspiracy or whether the trial court was doubtful : as to the sufficiency of the evidence to raise a fact issue is immaterial. ‘The fact remains that the trial court, in the exercise of its discretion, overruled all objections offered by Relators and submitted i issues inquiring if the individual members entered into a conspiracy with the Texas Optometric Association to use the powers of the Board to prohibit the practice of optometry under trade or assumed names; inquiring if the enforcement of the rule would “result in the stifling of competition in the practice of optometry between those same persons and your plain- tiffs (Respondents). » The jury was asked to find if such conspiracy. Afrend).. was for the purpose of stifling 1 tition. In none of the cases cited 5 the Court which, involved ilroad Commission orders were there pleadings that the individual embers of the Railroad Commission had en- tered into a conspiracy with one group to stifle competition between that group and another group engaged in the same | business, The Relators have failed to show a clear abuse 3 of discretion by the trial court. They. have failed to show clear right to the writ of mandamus. Therefore, the ap- lication 6, the eee writ of. mandamus should _ Clearly the objections to the pleadings, and the Relators’ ton fa instracted, F resented -questions which ‘equired the exercise of d va on eee Man- cretion by trial courts in ath 3 of purely judi 55 as distinguished from ministerial acta. In the Betts ease, supra, it was said that this Court is not vested with N N fy reno poner aver the-district . courts. “If an exercise of discretion by the district” fudge be involved this Court may not assert its original juris- : diction to enforce its own judgment, even though the actions of the distriet judge or fe have been improvident | or war she, erroneous.’ «tebe 2 ; 8 The writ of b will not lie to correct a merely -erronequs or voidable order of the trial judge. The action ot the trial judge in permitting the ease to go to the jury, and later declaring a mistrial when a verdict was not ob- " tained are not orders which the trial court was powerless — J. to enter. If such actions were erroneous, such errors can be corrected on appeal. See Iley v. Hughes, supra. I agree with the Respondents that the conspiracy ques- ; tion should be met. Iti is stated i in their brief: “eee (T]he Relators relegate the contention of Re- spondents to a challenge of ‘motives’ of the individual Board members. This exercise’ in semantics cannot sweep under the rug the hard fact that Respondents 2 charged a conspiracy under the Constitution and stat- utes, offered proof in support. thereof, and the belief of the trial judge that there was an issue of fact to _ . submit to the jury. Conspiracy, to become an issue of .. law, must be determined from an evaluation of the facts offered in support thereof. Weighing the facts to de- 8 e the necessary quantum of evidence which would “ot aint fy nd a ne, an exercise of en e eas ee The Court, in effect, has held that the pleadings must be sufficient to shock the judicial conscience, and that its con- science could only be shocked upon a “showing of condi- tions comparable in seriousness to that to corruption, fraud, dishonesty or bribery * * *.” T cannot conceive of alleged . conditions more corrupt in nature than the allegations that 5 ak lic officials,.and have designedly conceived a scheme to destrey not only the good name of the-Respondents but their business as well. The Court says this is not the type of . action and conduct which would shock its conscience. Not -only that, the Court holds that the “ease has been fully developed in the trial court and is ripe for judgment.” The effect of this order is to deprive the Respondents of the right to amend their pleadings and obtain a ruling on the amended pleadings ‘by the trial court. The conspiracy is- sue has been eliminated. The Respondents can expect no relief by appealing from the force of the judgment the trial court has been ordered to enter. I presume it would not shock the conscience of the Court in the event the trial court should grant the Respondents u new trial in order to give the parties a fair opportunity to perfect a record from the ‘trial oourt's ruling on sufficiency of pleadings after aving been n given an opportunity to amend their pleadings. : 2 ef 2 sty y . 4 124 Pend i on 1858 I 8 2 ws 5 82 ¢ 2 K 115 18 ae 5 Piet 2 5 . Ogee 4 ts 5 ae 8 AS ~ the members of the Board have lost sight of their duties as. 8 Relators” prayers for a writ of mandamus should be Judgment of the Supreme Court of Texas and Order Denying Rehearing 7 ‘ate: _In THe Supreme Cour or Texas ‘Aust FE February 8, 196 > From Dallas County, Fifth Diatriet. a No. A-11478 ‘Texas State Boarp or ExaMmvers N Orromerry. et al. ed TB re le ‘Kus Carp et al. \ This cause came on to be heard on writ of error to the Court of Civil Appeals for the Fifth Supreme Judicial A District, and the original transcript and transcript show- ing the proceedings in the Court of Civil Appeals having _ been duly considered, because it is the opinion of the Court (Associate Justice Smith dissenting) that there was error _in the judgment of the Court of Civil Appeals, but no error in that of the District Court, it is; therefore, adjudged, ordered and decreed that the judgment of the Court of Civil Appeals be, and hereby is, reversed and set aside, and the judgment of the District Court be, and hereby is, It is further ordered that respondents, Ellis Carp, S. J. Rogers and N. Jay Rogers, and their sureties, Ben Rogers Ss and Victor J. Rogers, pay all costs in this cause expended and incurred in this Court and Court of Civil Appeals; that petitioners, Texas State Board of Examiners in Op- tometry s the individual members thereof and the North Texas Op io Society, Inc., have and recover of and from respondents, Ellis Carp, S. J. Rogers and N. Jay Rogers, and their sureties, Ben Rogers and Victor. J. Rogers, the costs by them expended and incurred in said ‘Courts, and that this decision be certified to the District . Court of Dallas County, Texas, for observance. 8 Ix ‘THE Supreme Court or Texas - a | lll March 29, 1967. | From Dallas County, | Fifth District. en 5 Texas Sass haas oF Bum ox Oran et al. 7 vs. u Canp et al. ABespondants“ motion for rehearing, filed in the above | * wumbered 4 titled cause on February 22, 1967, having been duly considered, it is ordered that said motion be, „5 State Statute and Regulations Involved : 1. Texas Revised Civil Statutes, Article 4556 _" . they shall make recommendations to the Board with re. N 7 0. 1 * — — — nae a os —— 8 > 53 et harete: Tue Board shall have. the power to . ee the services of stenographers, inspectors, and other.nec- essury assistants in carrying out the provisions of this 7 At. The Board shall be represented ‘by the Attorney ‘| General and the County and District Attorneys of the * State. The Board, any committee, or any member thereof, — 4 hall have the power to issue subpoenas and \gubpoenas (° 4 . Andes tecum to compel the attendance of witnesses, arid the | production of books, records and documents, to administer | | 3 — , gate and to take bore concerning all matters within ie iss or his jurisdiction. The Board shall net be bounds by. - | | as strict“ rules of pro ire o ‘by the laws of evidence in | om fee the conduct. of its proceedings\but the determination shall ! 5 be = ‘upon sufficient legal evidence to. sustain it. ee “| The Board shall have the right to institute an action in . | its own name to enjoin the violation of any) of the provi- * | ee sions of this Act. Said action for an ‘injunction shall be | in addition to any other action, proceeding or remedy ~ | . K authorized by law. Before entering upon the discharge tf dhe Auties of. his Office, the Secretary-Treasurer of the 4 0 Board shall give such, bond for the performance of his ö duties ps the Board may require, the premium of which a is to be paid from funds in the possession’ of the Board. asa The Board shall adopt an official seal and license of suit- . 122 2 able design and shall have an-office where all of the per- ae muanent records shall be kept. Acts 1st CS. 5 ee | | „ 2 e 9 „„ 8 i 6 ed the pablle h in thé practice. of op 5 oi eae better enable members of the public _ to’ fix j oo responsibility, and further safeguard | the 5 e e e the dhe wormed rule is hereby 67 22 . adopted by the Texas State Board of Examiners in: Op- _tometry on the 21st day of December, 1959, to become effective. on the a day. of ape — Section 1. No optometrist” shall: a. Divide, share, split, or allocate, either directly o or . indirectly, any fee for optometrie services or ma- terials with any lay person, firm or corporation, Provided that this rule shall not be interpreted to prevent an optometrist from paying an employee in the regular course of employment, and pro- vided further that, it shall not be construed as a violation of this rule for any optometrist to lease space from an establishment on a percentage or gross receipts basis or to sell, transfer or assign accounts receivable. b., Divide, share, split or allocate, either diceétiy or - indirectly, any fee for optometrie services or ma- terials with another optometrist or with a physician except upon a division of service or responsibility . and then only after the patient paying the fee has full knowledge thereof, provided that this rule shall not be interpreted to prevent partnerships 58 the practice of optometry. _ @ Practice or continue, after the clapsing of a rea- . ° sonable time not to exceed one (J) year after the effective date of this rule, to practice optometry under, or use in connection with his practice of optometry, any assumed name, corporate name, trade name, or any name other than the name under which he is licensed. to practice optometry i in Texas; provided, however, that optometrists 3 practicing as partners may practice under the full or last names eo oe of the partners. Optometrists who are employed dy other optometrists shall practice in their own 0% names, but may practice in an office listed under thé name of the individual optometrist or partner- ship of optometrists by whom they are employed. In event of the death or retirement of a partner, the surviving partner or partners practicing op- tometry in a partnership name may, with the. ‘written permission of the retiring partner or the 4s deceased optometrist’s widow or other legal n resentative, as the ease may be, continue to practice with the name. of the deceased partner in the part- nership name for a period not to exceed one (1) year from the date of his .death, or during the period of administration of a deceased partner’s estate as provided by Article 4563, as amended, Revised Civil Statutes of — whichever — shall be the longer. Reem | Use, cause or allow to be 1 after the elapsing of a reasonable, time not to exceed one (1) year after the effective date of this rule, his name or professional identification, as authorized by Ar- _. ticle 4590e, as amended, Revised Civil Statutes of “Texas, on or about the door, window, wall, direc- tory, or any sign or listing whatsoever, of any office,’ location ‘or place where optometry is prac- tiosd, unless said optometrist is actually present and practicing optometry therein during’ the hours such ‘office, location or place of practice is open e e ‘public for the’ practice of optometry. 5 — e. Practice or “oantinue, after ‘the, elapsing of a rea- Bonable time not to exceed one 0 year after. the < ee ee oe 128 5 4 214 te 22 ien 2 123 woe. KRRE RRS 1 2 1 = effective date of this rule, | practice optometry in any office, location or place of. practice where any name, names or professional identification. on or about the door, window, wall; directory, or any sign or listing whatsoever, or in any manner used in connection therewith, shall indicate · or tend to indicate that such office, location or place of prac- tice is owned, operated, supervised, staffed, di- rected or attended by. any person not actually * present and practieing optometry therein during the hours such office, location of plate of practioe is open to the public for the practice of optometry. The requirement of subparagraphs d and e above that an optometrist be “actually present” in an. office, location or place of practice holding his name out to the public shall be deemed satisfied if the optometrist is, as to such office, location or r place “of practice, either: (i) physically present therein more than half the total number of hours. such office, location, or place of practice is open to the public for the practice of optometry during each calendar month for at least nine months in each calendar year; or (2) physically 8 in — alt 1 or place of practice for at least one-half of the time such person conducts, directs, or N vises any practice. of optometry. : Peebles Vda ee requiring the physical presence. of a person who is ill, injured, or otherwise incapacitated temporarily. The eee eee 6 8 that an n optomettist be . optometry” at an office, location, or place of practice holding his name out to the public shall be deemed satisfied if the optometrist regularly makes personal exami- _ nation at such office, location, or place of practice - of the eyes of some of the persons prescribed for therein or regularly supervises or directs in person at such office, location or place * practice such examinations. ke @ Section 2. The willful o or repeated failure or refusal of . an optometrist to comply with any of the provisions of Section 1 above shall be considered by the Texas State Board of Examinérs in Optometry to constitute prima facie evidence that such optometrist i is guilty of violation of Chapter 10, Title 71, as amended, of the Revised Civil Statutes of Texas, and shall be sufficient ground for the = of charges to cancel, revoke or suspend his license. The charges shall state the specific instance or instances in which it is alleged that the rule was not complied with. Alternatively, or in addition to the above, it shall be the duty of the Board to institute and prosecute an action in a court of competent jurisdiction to restrain or enjoin the : violation of -~ of the. peg: rules. Section 3. If any ,Section, subsection, ie ft. paragraph, sentence, ‘tlause, or part of the, above provi. _ sions.shall, for any reason be held invalid; such decision : — ee of the one any other 8 shall not affect the remaining portions of the above pro- visions, and it is hereby declared to be the intention of . of eit Gey gruph, subparagraph, sentence, clause, or part of the above 5 0 4 8 ee 2 710 8 ; subsection, paragraph, subparagraph, sentence, elause, or 5 part of the above provisions may be declared invalid, that is, it is the intention of the said Board that each of the above provisions and portions thereof are severable. © Seetion 4. All rules, regulations, and administra d ni is rative in- terpretations heretofore adopted by the Board are hereby 4 repealed and rescinded insofar as such rules or · interpreta- a tions, or any of them, or any provision thereof, is, or are _ inconsistent herewith. 3. Rule Making Procedure Rule In making rules and regulations for the regulation of the . Practice of. optometry pursuant to Article 4556, Revised. Civil Statutes of Texas, the board shall prepare and pro- pose such rules and regulations and submit by mail a copy of each such rule and regulation, as well as all other such rules and regulations as may have been proposed and filed CR with the board, supported by a petition signed by at least _ twenty-five per cent (25%) of the optometrists licensed by and practicing in the State of Texas, in ballot form to each optometrist licensed by and practicing in tha State of Texas for a vote thereon. At the end of thirty (30) days from the time such ballots are mailed, the board shall count the ballots that have been returned, provided that no election shall be valid unless a minimum of fifty-one per cent (51% ol the optometrists licensed by and practicing in the State ol Texas shall have voted at the election at which such rule or rules are voted on; and each and all of such rules and regulations that have received two-thirds of the votes east shal? be by said board declared as approved by the pro- kession. The fact that any rule or regulation is approved _ by the profession itself shall be considered by the board a 59 5 22 as prima facie evidence that such rule or regulation is rea- 8 enable and necessary for the regulation of the practice of optometry in Texas. No rule or regulation for the regula- "tion off the-practioe of optometry shall be made by aid | board that has not received two-thirds of the dern cast in the manner above provided. Be rr he, pry 4. Advisory Committee Resolution Resotven, that the board appoint a committee to be known as the Optometry Board Advisory.Committee for the pur- pose of considering the regulation of the practice of op- tometry and recommending to ‘the board what rules and’ regulations, if any, are necessary for the regulation of the practice of optometry in Texas; that in furtherance of this resolution and in order to appoint a committee representa- tive of all geographical areas and.all elements of the pro- fession, the president of the board be, and he is hereby, directed to request each member of the Texas Legislature to recommend an optometrist from his spain to serve on said tte * 8 8 2 — a — —— 2 — r RS SN a RR BD | Proof of Service 5 I, TRUnIAN ARNoxp, an attorney of record for Ellis Carp, et al., Appellants herein, certify that on the eleventh day, of August, 1967, I served oopies of the foregoing Jurisdic- | tional Statement on: ‘the Appellees herein by depositing copies of the same in a United States mail box with first class postage prepaid, addressed to Ellis Lyons and Bennett 8 Boskey, 918—16th Street, N. W., Washington, D. C., coun- dressed to Crawford Martin, Attorney General of Texas, Austin, Texas; John Reeves, Assistant Attorney General of Texas, Austin, Texas; Thomas Gee, Austin National Bank Building, Austin, Texas; Charles M. Babb, 1005 Capital National Bank Building, Austin, Texas; and Mark Martin, Fidelity Union Tower Building, Dallas, Texas, counsel: for Appellees. f | eo Pay cat Taurman ARNOLD 2 sel for Appellees, and with air mail postage prepaid, ad-. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0996%3A2. Public record. Not legal advice.