# Opposition Brief — Sizemore v. Texas Board of Dental Examiners

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1080

## Text

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NO. 88-1584 |
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IN THE Sears

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1988

* * * *

CHARLES W. SIZEMORE, D.D.S.,
Petitioner

¥.

TEXAS STATE BOARD OF DENTAL EXAMINERS,
Respondent

* * *

BRIEF IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF TEXAS

* * * *

JIM MATTOX
Attorney General of Texas

MARY F. KELLER
First Assistant
Attorney General

LOU McCREARY
Executive Assistant
Attorney General

JAMES C. TODD, Chief
General Litigation Div.

BROOKS WM. CONOVER, III
Assistant Attorney General

II

TABLE OF CONTENTS

FET WIN 045540 600300080%5505% l

STATEMENT CONCERNING

SUERTE so een ec ev sessvereveceuss 2
DEMEUEBOS INVOLVED. cscccccccccscssees 2
SUMMARY OF THE CASE.......cseccccees 2

REASONS WHY PETITION FOR WRIT

SHOULD NOT BE GRANTED............... 4
STATEMENT OF THE CASE..........0000. 4
QUESTION 1

ARE THE DICTATES OF DUE PROCESS
SATISFIED IN A LICENSEE'S DISCIPLINARY
PROCEEDINGS WHERE THE EVIDENCE IN

THE RECORD AS A WHOLE IS SUCH THAT
REASONABLE MINDS COULD HAVE REACHED
THE CONCLUSIONS THE AGENCY MUST HAVE

REACHED IN ORDER TO JUSTIFY ITS

QUESTION 2

MAY AN EXPERT WITNESS BASE AN OPINION

IN A PARTICULAR CASE ON FACTS OR DATA
PERCEIVED BY OR MADE KNOWN TO HIM AT

OR BEFORE THE HEARING IF IT IS OF A

TYPE REASONABLY RELIED UPON BY EXPERTS
IN THE FIELD IN FORMING OPINIONS OR
INFERENCES ON THE SUBJECT?........... 14

III

QUESTION 3

DOES THERE EXIST A RATIONAL BASIS FOR
THE TEXAS LEGISLATURE TO HAVE PROVIDED
FOR DIFFERENT STANDARDS OF JUDICIAL
REVIEW FOR DIFFERENT PROFESSIONS

[V

TABLE OF AUTHORITIES
CASES

Abilene Sheet Metal, Inc. v. NLRB,
619 F.2d 332, 337-38 (5th
> See: Arr ae

Adams v. Texas State Bd. of
Chiropractic Examiners,
744 S.W.2d 648, 651, 654 (Tex
App.--Austin 1988, no writ)...

Aircraft Owners & Pilots Ass'n v. FAA,
600 F.2d 965, 970 (D.C. Cir. 1979)

Alabama Pub. Serv. Co. v. Southern Ry
341 U.S. 341, 348 (1951)

Allied v. Bowers,
358 U.S. 522, 530 (1959).....

Auto Convoy Co. v. Railroad Comm'n,
507 S.W.2d 718, 722 (Tex. 1974).

Barefoot v. Estelle,
463 U.S. 880, 903-05 (1983).

Breidor v. Sears, Roebuck and Co
722 F.2d 1134, 1138-39 (3rd Cir

Brown-Foreman Co. v. Kentucky,
917 U.S. 563 (1910)..

Chaney v. Heckler,
718 F.2d 1174, 1189
(D.C. Cir. 1983).....-..--.

PAGE

V

City of Galveston v. United States,
257 F.Supp. 243, 245-46 (1966),
aff'd, 308 U.S. 260 (CIGST)... wc cccceess 7

City of New Orleans v. Duke,
(ee: eee rey ere ree 23

City of Pompano Beach v. F.A.A.,
774 F.2d 1529, 1539-40 (11th

a, Pr eee eee eee eee 6
Conservation Law Found. of New England v.

Clark,

590 F.Supp. 1467, 1473-74 (D.

BERN, FOUR sc cecvcevtenedececcosesesss 13

Consolidated Edison Co. v. NLRB,
Dee Was Bete Bee CRE oe unc céeercns 6

Consolo v. Federal Maritime Comm'n,
Bee Ui. GEE, GOW Cae cc ce vcudesossen 7

Crounse Corp. v. I.C.C.,
781 F.2d 1176, 1187 (6th Cir. 1986),
cert. denied, 479 U.S. 890 (1986)...... 13

DaSilva v. American Brands, Inc.,
845 F.2d 356, 361 (Ist Cir. 1988)...... 15

Dodgen v. Depuglio,
209 S.W.2d 588, 594 (1948)............. 22

Donnelly Gammert Co. v. NLRB,
123 F.2d 215, 224 (8th Cir. 1942)...... 14

Doremus v. Farrell,
407 F.Supp. 509, 516 (D. Neb. 1975).... 18

VI

Dorsey v. Solomen,
435 F.Supp. 725, 733-34 (1977)....... 18, 2]

Dotson v. Texas Bd. of Medical Examiners,
612 S.W.2d 921, 922 (Tex. 1981).......

ql

Greater Boston Television Corp. v. FCC,
444 F.2d 841, 850 (D.C. Cir. 1970),
cert. denied, 403 U.S. 923 (1971)..... 13

Halsell v. Texas Water Comm'n,
380 S.W.2d 1 (Tex. Civ.
App.--Austin 1964, writ
POE WMilsO. Peden cecrveevecescassesens 18

Harper v. Lindsay,
616 F.2d 849, 854 (5th Cir. 1980)..... 21

Holley v. Seminole County School Dist.,
755 F.2d 1492, 1499-1500 (1985)........ 7

Illinois Cent. R. Co., et al. v. Norfolk
and W. Ry. Co.,
385 U.S. 57, 67 (1966)......cccecceces 7

Jefco, Inc. v. Lewis,
520 S.W.2d 915 (Tex. Civ.
App.--Austin 1975, writ ref'd n.r.e.). 21

Lewis v. Metropolitan Sav. and

Loan Ass'n,
550 S.W.2d 11, 16-17 (Tex. 1977)....-.- 18, 24

Lewis v. Southmore Sav. Ass'n,
480 S.W.2d 180, 186 (Tex. 1972)....... 16

Vil

Lipsey v. Texas Dep't of Health,
727 S.W.2d 61, 72 (Tex. App.--Austin
1067; weit rel’ RW. .@.).. 0 cccccsccees 16

Madden v. Kentucky,
308 U.S. B39, GB CIOGO) . wccccvcccccsces 22

Martinez v. Texas State Bd.
of Medical Examiners,
476 S.W.2d 400, 405 (Tex. Civ.
App.--San Antonio 1972, writ ref'd
n.r.e.), appeal dismissed, 409 U.S.
one sede enedwouds 18

McConnell v. Alamo Heights Indep.
School Dist.,
576 S.W.2d 470 (Tex. Civ.
App.--San Antonio 1978, writ
_ 4. 6 eee er 18

McGowan v. Maryland,
366 U.S. 420, 425-26 (1961)......... 22, 23

McKeiver v. Pennsylvania,
ee Wets GEO CURT) .ncccccvccccsccecs 18

Moore v. Grantham,
999 S.W.2d 287, 290 (Tex. 1980)....... 16

Motor and Equip. Mfrs. Ass'n, Inc. v. E.P.A.,
627 F.2d 1095, 1123 (D.C. Cir. 1979),
cert. denied, 446 U.S. 952 (1980)..... 13

NLRB v. Burns,
207 F.2d 434, 436 (8th Cir. 1953)..... 14

NLRB v. Pittsburg S.S. Co.,
337 U.S. 656, 660 (1949).............. 15

Vill

NLRB v. Southern Florida Hotel and
Motel Ass'n,

751 F.2d 1571, 1579 (llth Cir. 1985).. 6, 7

Otis Elevator Co. v. Wood,
436 S.W.2d 324, 330-31 (Tex. Civ.
App.--Austin 1975, no writ).......

Pollard v. Cockrell,

578 F.2d 1002, 1012 (5th Cir. 1978)...

Pre-Fab Transit Co. v. United States,
306 F.Supp. 1247, 1250 (D.C. Ill.
1969), aff'd, 397 U.S. 40 (1970)...

P.U.C. v. Cofer,

754 S.W.2d 397, 398-99 (Tex. 1979)...

Railroad Comm'n v. Entex, Inc.,
599 S.W.2d 292, 298 (Tex. 1980)...

Railroad Comm'n v. Miller,
434 S.W.2d 670, 673 (Tex. 1968)...

Railroad Comm'n v. Shell Oil Co.,
161 S.W.2d 1022, 1029 (1942)......

Reed v. Reed,

404 U.S. 71, 73 (1991)... eevee,

Richardson v. Perales,

402 U.S. 387, 399 (1971)...........

San Antonio Retail Grocers, Inc.
v. Lafferty, 297 S.W.2d 813 (1957)

rrr 16

21

pee 13

23

seen 21

ae 21

IX

San Antonio Indep. School Dist.
v. Rodriguez,
8 ee Oe | re ee ee ee 22

Scott v. Texas State Bd.
of Medical Examiners,
384 S.W.2d 686 (Tex. 1964)............ 20

Securities and Exch. Comm'n v. Chenery Corp.,
318 U.S. GO, SIGE CIOS} cc vccsccvess 4

Securities and Exch. Comm'n v. Chenery Corp.,
332 U.S. 194, 196-97 (1947)........... 4

Semler v. Oregon State Bd.
of Dental Examiners,
oe ae Me: a ) ere 21

Sherman v. Texas State Bd. of
Dental Examiners,
116 S.W.2d 843, 846 (Tex. Civ.
App.--San Antonio 1938, writ ref'd)... 20

Sizemore v. Texas State Bd. of
Dental Examiners,
747 S.W.2d 114 (Tex. App.--Dallas

1987), reversed, 759 S.W.2d 114
Cees MD n 055 cdc eakdebence ease enue 2

Southwestern Bell v. Public Util. Comm'n,
971 S.W.2d 503, 510 (Tex. 1978)....... 18

State of Texas v. Crank,
666 S.W.2d 91, 94 (Tex. 1984)
cert. denied, 469 U.S. 833 (1984).....

X

State of Texas v. Credit Bureau of
Laredo, Inc.,

930 S.W.2d 288, 291-93 (Tex. 1975)....17, 19

State v. DeSilva,
145 S.W.2d 230 (Tex. 1912)............ 17

Stone v. Texas Liquor Control Bd.,
417 S.W.2d 385, 386-87 (Tex. 1967).... 20

Swinney v. Winters,
532 S.W.2d 396, 406 (Tex. Civ.
App.--San Antonio 1975, writ
ge ge ee rr re re ere 17

Teen-Ed, Inc. v. Kimball Intern., Inc.,
620 F.2d 399, 402-03 (3rd Cir. 1980).. 16

Texas Liquor Control Bd. v. Jones,
112 S.W.2d 227 (Tex. Civ.
App.--Texarkana 1937, no writ)........ 17

Texas State Bd. of Dental Examiners v.
Sizemore, 759 S.W.2d 389 (Tex. 1988).. 2

Texas Water Rights Comm'n v. Wright,
464 S.W.2d 642 (Tex. 1971)............ 21

Tigner v. State of Texas,
S10 U.B. GEO CBRE) occ ccccscicescesens 21

Trailways, Inc. and Trailways of Texas, Inc.

v. Mendoza,
745 S.W.2d 63, 66 (Tex. App.--San
Antonio 1988, no writ)........-.+-ee8. 16, 17

United States v. Chicago, M.St.P. and P.R. Co.,
294 U.S. 499, 504-05 (1935).......... 5

ess eis a oa diac

a as
XI
United States v. Morgan,
313 U.S. 400, 421 (1941)... ccccsevcees 13
Universal Camera v. NLRB,
340 U.S. 474, 477, 488 (1951)......... 6

Wilbanks v. Secretary of Health and Human Serv.,
847 F.2d 301 (6th Cir. 1988).......... 7

Williamson v. Lee Optical,
348 U.S. 463, 468 (1055)... cvceccess 21

Withrow v. Larkin,
Cli UB. Th, BR Care iis cescvncccsens 13

UNITED STATES CONSTITUTION

Article I, Section 15, found in the Bill
of Rights of the Constitution......... 19

Article V, Section 10, found in the Bill
of Rights of the Constitution......... 19

UNITED STATES STATUTES AND RULES

20 U.5.C., Beatie 12578). ..6cccccvccccces 2
U.S.C. App. G BBBO). 6 ccc cccceccesvcecs 6
Few. MR. EViD. 700 aml 706. .5 0. cccccccvsvess 16
TEXAS STATUTES AND RULES

TEX.REV.CIV.STAT.ANN. art. 4548h,

| rane aia ane nreaene! Peaeny ree 5)
TEX.REV.CIV.STAT.ANN. art. 4549,

Ek REET EEE oe T EE A re 2

ce

XII

TEX.REV.CIV.STAT.ANN. art. 4549

OTROS See a en 2
TEX.REV.CIV.STAT.ANN. art. 4549,

ec oak cic avees 2
TEX.REV.CIV.STAT.ANN. art. 4549,

OR aI ener ae batenarrene 2
TEX.REV.CIV.STAT. ANN. art. 4551h.......... 2

TEX.REV.CIV.STAT.ANN. art. 6252-13a,
| RE ere 23

TEX.REV.CIV.STAT.ANN. art. 6252-13a,

TEX.REV.CIV.STAT.ANN. art. 6252-13a,

© TG) a ccc cce rr scacecscensscccssovess 6, 19
TEX. R. EVID. 703 and 705 (1983).......... 15, 16
Texas State Bar Rules, Preamble,

Artista H, Bh. ccncvvcvescensvccevcees 23

MISCELLANEOUS

Wendorf and Schlueter, Texas Rules
of Evidence Manual (1983), p. 1957..... 16

NO. 88-1584

*-* * *

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1988

* * * *

CHARLES W. SIZEMORE, D.D.S.,
Petitioner

¥.

TEXAS STATE BOARD OF DENTAL EXAMINERS,
Respondent

* * * *

BRIEF IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI TO
THE SUPREME COURT OF TEXAS

* * * *

To the Honorable Members of the Supreme Court of
the United States:

The Texas State Board of Dental Examiners,
Respondent, files this Brief in Opposition to the
Petition for Writ of Certiorari.

OPINIONS BELOW

The Texas Supreme Court entered an opinion
June 22, 1988, and, after denying Petitioner's -
Motion for Rehearing on November 23, 1988, issued
its mandate on December 12, 1988. The June 22,

2

1988, opinion is reported at 759 S.W.2d 114 (Tex.
1988) (Pet. App. M, PP. 56a). The opinion of the
Court of Appeals, Fifth Supreme Judicial District,
Dallas is reported at 747 S.W.2d 389 (Tex.
App.--Dallas 1987) (Pet App. G-K, PP. 27a-53a).
The district court opinion and judgment is not
reported but can be found as _ Petitioner's
Appendices D, E, and F. PP. 19a-26a.

STATEMENT CONCERNING JURISDICTION

This is a civil appeal from the highest court of
the State of Texas. The Supreme Court of Texas
rendered its judgment on June 22, 1988, and
overruled Petitioner's Motion for Rehearing on
November 23, 1988 (Pet. App. A, PP. la). The
Petitioner invokes the jurisdiction of this Court
under 28 U.S.C., Section 1257(3).

STATUTES INVOLVED

TEX.REV.CIV.STAT.ANN. art. 4549, Sections
3(c), 3(i), 3(j) and 4(b); TEX.REV.CIV.STAT.
ANN. art. 455lh; and TEX.REV.CIV.STAT.ANN.

art. 6252-13a, Section 19 govern the suspension of
Petitioner's dental license.

SUMMARY OF THE CASE

In response to Department of Public Safety
concerns about controlled substance prescriptions
being written by Dr. Sizemore, the Texas State
Board of Dental Examiners (the Board) investigated
the nature and purpose of several unusual
prescriptions for Percodan. The Board’ then
initiated a complaint against Sizemore for
prescribing drugs which were not necessary or
required in the practice of dentistry; for
dishonorable conduct in grossly over-prescribing
Percodan to three of his patients; and for failing to

‘

3

note the prescription of over 800 dosages of
Percodan in his patients’ records.

At the administrative hearing, the Board
received corroborative evidence regarding’ the
allegations in the form of admissions by Sizemore,
dental records, original prescriptions for Percodan,
DPS triplicate prescription records, and expert
testimony. The expert, Dr. Arthur H. Jeske, who
is an associate professor of pharmacology and
restorative dentistry, testified that the Percodan
prescriptions were neither necessary nor required
and could promote and/or further addiction of the
patients involved. Dr. Jeske never examined the
patients in question, but based his expert opinion
on a review of the patients' dental records and his
knowledge of dentistry and pharmacy, including
learned treatises.

Upon the conclusion of the evidence, the
Board found the allegations true and suspended
Sizemore's dental license for five years with all but
120 days probated upon condition that Sizemore
surrender his DEA controlled substance certificate.
Sizemore appealed the decision to the 95th Judicial
District Court of Dallas County, Texas, which
affirmed the Board's suspension as being supported
by substantial evidence in the record as a whole in
that reasonable minds could have reached _ the
conclusion the Board must have reached in order to
justify its conclusion.

Thereafter, Sizemore appealed the trial court's
judgment to the Fifth Supreme Judicial District
Court of Appeals in Dallas, Texas, which reversed
the Board's order, in part, on the basis of no
substantial evidence to support 12 of the
allegations, and which remanded the case, in part,
for reassessment of the evidence and punishment on
the 2 remaining allegations. After its Motion for

4

Rehearing was overruled, the Board filed an
Application for Writ of Error with the Texas
Supreme Court. The Texas Supreme _ Court
overturned the intermediate appellate court's
decision and _ affirmed the Board's original
suspension of Sizemore's dental license. Once that
court overruled his motion for rehearing and issued
its mandate, Sizemore petitioned this Court for writ
of certiorari.

REASONS WHY PETITION FOR WRIT
SHOULD NOT BE GRANTED

The Texas Supreme Court properly held that
the evidence before the Board provided a
reasonable basis for the suspension of Petitioner's
dental license and that the substantial evidence rule
governed judicial review of the Board's disciplinary
action.

STATEMENT OF THE CASE

QUESTION 1

ARE THE DICTATES OF DUE PROCESS SATISFIED
IN A _ LICENSEE'S DISCIPLINARY PROCEEDINGS
WHERE THE EVIDENCE IN THE RECORD AS A
WHOLE IS SUCH THAT REASONABLE MINDS COULD
HAVE REACHED THE CONCLUSIONS THE AGENCY
MUST HAVE REACHED IN ORDER TO JUSTIFY ITS
ACTIONS?

"The grounds upon which an administrative
order must be judged are those upon which the
record discloses that the action was’ based."
Securities and Exch. Comm'n v. Chenery Corp.,
318 U.S. 80, 87 (1942). An administrative agency's
findings of fact in a contested case establish the
existence of those factual predicates which invoke
applicable rules of law and lay the foundation upon

ww

which those rules operate. In the context of
judicial review of contested cases before an
administrative tribunal, however, the agency's fact
findings enable a reviewing court to know the
grounds upon which the agency applied rules of law
forming the basis of its decision. Id. at 87. In
other words, the reviewing court must be able to
understand the basis for the agency's decision.
United States v. Chicago, M.St.P. and P.R. Co.,
294 U.S. 499, 504-05 (1935); Securities and Exch.
Comm'n v. Chenery Corp., 332 U.S. 194, 196-97
(1947). The findings and orders of the Respondent
Board are such that this Court can easily ascertain
whether the decision to suspend Petitioner's dental
license is reasonably supported by the evidence in
the record as a whole. (Pet App. C, PP. 12a-18a).

The Texas Supreme Court observed, in an
opinion by Chief Justice Thomas R. Phillips (Pet.
App. M, PP. 58a):

The substantial evidence test is applicable
to cases involving judicial review of
decisions of the Board of Dental
Examiners. TEX.REV.CIV.STAT.ANN.
art. 4548h, § 3(e). The test, as stated
many times by this Court, is whether the
evidence is such that reasonable minds
could have reached the conclusion that
the agency must have reached in order to
justify its action. E.g., Dotson v. Texas
Bd. of Medical Examiners, 612 S.W.2d
921, 922 (Tex. 1981); Railroad Comm'n v.
Shell Oil Co., 161 S.W.2d 1022, 1029
(1942). In determining whether there is
substantial evidence, the reviewing court
may not substitute its judgment for the
Board's, but must consider only the
record upon which the decision is based.
Railroad Comm'n v. Entex, Inc., 599

6

S.W.2d 292, 298 (Tex. 1980). The
burden is on the complaining party to
demonstrate an absence of substantial
evidence. Auto Convoy Co. v. Railroad
Comm'n, 507 S.W.2d 718, 722 (Tex.
1974). :
See TEX.REV.CIV.STAT.ANN. art. 6252-13a,
Section 19(e). The Court then proceeded to review
the administrative record to determine whether
substantial evidence existed to support the Board's
decision. (Pet. App. M, PP. 60a-62a).

The substantial evidence test is the standard
employed by federal courts sitting in review of a
federal agency's decision. In City of Pompano
Beach v. F.A.A., 774 F.2d 1529, 1539-40 (11th
Cir. 1985), Circuit Judge Tjoflat penned:

In reviewing administrative fact findings
to determine whether they are supported
by substantial evidence, we must look at
the record in its entirety... . NLRB v.
Southern Florida Hotel and Motel Ass'n,
751 F.2d 1571, 1579 (llth Cir. 1985)
quoting Universal Camera v. NLRB, 340
U.S. 474, 488 (1951). Substantial
evidence supporting the agency's findings
exists, if the record reveals "relevant
evidence [that] a reasonable mind might
accept as adequate to support a
conclusion." Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938); see also
Universal Camera, 340 U.S. at 477;
Abilene Sheet Metal, Inc. v. NLRB, 619
F.2d 332, 337 (5th Cir. 1980); Aircraft
Owners & Pilots Ass'n v. FAA, 600 F.2d
965, 970 (D.C. Cir. 1979)(construing 49
U.S.C. App. § 1486(e)). "[We] must
decide only whether the agency made a

7

reasonable finding... .' Abilene Sheet
Metal, Inc. v. NLRB, 619 F.2d at 338.
(Parallel citations omitted).

See also Wilbanks v. Secretary of Health and Human
Serv., 847 F.2d 301 (6th Cir. 1988). He further
reasoned that deference must be given to the
agency's fact findings when the evidence may fairly
support two conflicting views. City of Pompano
Beach, 774 F.2d at 1540, citing Southern Florida
Hotel, 751 F.2d at 1579 (quoting Universal Camera,
340 U.S. at 488).

The reviewing court is forbidden "...from
usurping the agency's adjudicative authority even
though the court may have struck a_ different
balance." (Pet. App. M, PP. 59a). See also ld.;
City of Galveston v. United States, 257 F.Supp.
243, 245-46 (1966), aff'd, 386 U.S. 269 (1967);
Holley v. Seminole County School Dist., 755 F.2d
1492, 1499-1500 n. 5 (1985). In Consolo v. Federal
Maritime Comm'n, 383 U.S. 607, 620 (1966), this
Court observed, "the possibility of drawing two
inconsistent conclusions from the evidence does not
prevent an administrative agency's finding from
being supported by substantial evidence." See also
Illinois Cent. R. Co., et al. v. Norfolk and W. Ry.
Co., 385 U.S. 57, 67 (1966). It is the triers of
fact who have the duty to resolve those conflicts.
Richardson v. Perales, 402 U.S. 387, 399 (1971).
See also Securities and Exch. Comm'n v. Chenery
Corp., 318 U.S. at 88. The evidence before the
Board in this case reasonably supported the
decision to suspend Petitioner's license.

Petitioner admitted that he prescribed 280
capsules of the narcotic Percodan, a Schedule II
controlled substance, to patient McKay on twelve
separate occasions. (See Petitioner's direct
testimony; Transcript of Proceedings, beginning at

8

P. 95, L. 6). The triplicate prescription records
from the Texas Department of Public Safety,
admitted into evidence at the hearing (Transcript of
Proceedings, P. 4, LL. 18-25), document this
finding as do the original prescriptions, which were
similarly received by the Board. (Transcript of
Proceedings, P. 5, supra).

\

Petitioner admitted and did not contest the
finding that he omitted to note the issuance of ten
out of twelve prescriptions of Percodan, or 230
capsules, to patient McKay. In addition to
Petitioner's admission, the Board relied on the
patient records (Transcript of Proceedings, P. 6,
supra), the original prescriptions (Transcript of
Proceedings, P. 5, supra), and the Department of
Public Safety triplicate prescription records
(Transcript of Proceedings, P. 4, supra), as
evidence to support this finding.

The Board relied on the expert testimony of
Dr. Arthur Jeske, who testified "with a reasonable
degree of medical certainty" that Petitioner
prescribed controlled substances to patient McKay
that were not necessary or required. (Transcript of
Proceedings, P. 18, L. 11 to P. 19, L. 6). It was
Dr. Jeske's testimony which established of record
Percodan's properties and effects: that as a
chemical relative of morphine it is a strong narcotic
analgesic that relieves pain centrally; and that it
has an addictive quality, creating both physical and
psychological dependence by producing a state of
euphoria in the user. (Transcript of Proceedings,
P. 13, L. 12 to P. 14, L. 6). In evaluating the
use of Percodan for twelve months by patient
McKay, who exhibited symptoms of temporal
mandibular joint (TMJ) pain, Dr. Jeske stated the
treatment of the pain during which time "no
definitive dental therapy was performed to alleviate
the problem" was in excess of generally accepted

dosages for dental treatment. (Transcript of
Proceedings, P. 18, L. 21 to P. 19, L. 1). He
further testified that the "quantity was addictive."
(Transcript of Proceedings, P. 77, LL. 12-13).

Added to this evidence were the admissions by
the Petitioner regarding the problem which arose
during his course of treatment of the TMJ-related
pain. Petitioner's testimony indicates McKay
received no dental treatment for over four months
because he allegedly had no time for the necessary
procedures. In the words of Justice McCraw's
dissenting opinion in the court of appeals (Pet.
App. I, P. 50a):

Sizemore admitted that he could have
demanded that the patient come in to the
office and suspend issuance of _ the
prescriptions and ‘probably should have.’
He further admitted that ‘it's obvious that
my judgment was not so good [in failing
to demand that the _ patient have
treatment].' Sizemore realized that he
'may have been used by this person.’

Before the Board, Sizemore’ testified as
follows:

Q. Well, overall, do you think you did the
patient right?

A. I don't think he received the total care
that he should have received, but I'm not
saying that I wasn't in error of judgment,
but at the same time, I'm saying that
some of this was due to the patient.

Q. He received the same care that you would
want one of your family to receive?

10
A. No, he didn't, I didn't say that.
(Transcript of Proceedings, P. 283, LL. 3-12).

Q. Well, do you feel like you used good
professional judgment or accepted
professional judgment?

A. I feel like my judgment may have been in
error.

(Transcript of Proceedings, P. 273, LL. 4-8).

As to patient Sabato, Petitioner admitted that
he omitted to note the issuance of four out of 13
Percodan prescriptions for the patient. The
Board's evidence to support this finding again
consisted of the Department of Public Safety's
triplicate prescription forms (Transcript of
Proceedings, i 4, supra), the original
prescriptions for Percodan and Tylox (Transcript of
Proceedings, P. 5, supra), and Sabato's patient
records (Transcript of Proceedings, P. 6, supra).
Dr. Jeske's testimony supports the finding, too.
(Transcript of Proceedings, P. 22, LL. 2-4).

Dr. Jeske testified it was remarkable that
patient Sabato received prescriptions for Percodan
on April 27, May 9, May 13, May 18, June 2, and
June 16 when no antibiotic was used in conjunction
with the prescriptions. (Transcript of Proceedings,
P. 23, L. 11 to P. 24, L. 11). "With a reasonable
degree of medical certainty," Dr. Jeske testified
specifically that the Percodan prescriptions of May
9, 13, and 18, 1983, were not necessary or
required. (Transcript of Proceedings, P. 24, LL.
6-11). Petitioner gave this patient 13 prescriptions
for a total of 220 capsules of Percodan, in spite of
the fact that Percodan contains aspirin and _ the
patient had indicated that she was allergic to

11

aspirin. "It's obvious that I overlooked that on the
chart," Sizemore testified. (Transcript of
Proceedings, P. 261, LL. 6-7). Moreover, the
Department of Public Safety records and original
prescriptions established that on March 31, May 9,
and June 2, 1983, patient Sabato altered the
prescriptions to obtain larger amounts of Percodan
than prescribed by Petitioner. (Transcript of
Proceedings, P. 4-5, supra).

Had Petitioner properly counselled the patient
and evaluated the therapeutic purposes of his
treatment, Sabato a/k/a Schultz would not have
gone to such lengths to support her developing
physical and psychological dependency on the drug,
Percodan. (Transcript of Proceedings, P. 80, LL.
1-10). Dr. Jeske further testified that given the
patient's level and dosage the generally accepted
duration of Percodan treatment for severe pain is
limited to five days. (Transcript of Proceedings, P.
78, L. 17 to P. 79, L. 3). Indeed, Jeske testified
that a patient receiving Schedule II narcotics four
times a day for even a day or two demonstrates
symptoms of withdrawal upon cessation of treatment.
(Transcript of Proceedings, P. 79, LL. 15-21). It
is such evidence upon which the Respondent found
that such prescriptions were in excess of generally
accepted dosages for dental treatment.

Petitioner admitted to prescribing Percodan to
a third patient, Kenneth Cook, on 21 separate
occasions for a total of 382 capsules. The Board,
however, relied on the Department of Public Safety
triplicate prescription forms (Transcript of
Proceedings, P. 4, supra), the patient records
(Transcript of Proceedings, P. 6, supra), and the
original prescriptions (Transcript of Proceedings,
P. 5, supra) so to find.

12

Patient Cook had upper-anterior pain in his
teeth. For two months, Petitioner prescribed
Percodan and antibiotics prior to extracting the
problem teeth. Cook received 121 tablets in this
two month period. Dr. Jeske testified that
although the initial Percodan prescriptions may have
been necessary or required, the continued
prescribing of Percodan was neither necessary nor
required after the first two weeks of therapy.
(Transcript of Proceedings, P. 26, L. 11). In
evaluating the Petitioner's returning the patient to
the Percodan/antibiotic regimen for an additional
two month period, Dr. Jeske stated that in his
expert opinion the prescriptions were not necessary
or required after twenty-four days. (Transcript of
Proceedings, P. 26, L. 11 to P. 27, L. 17).

Petitioner admitted as much at the Board
hearing:

Q. Okay. Did it ever occur to you in that
two-month period [from December 28 to
February 24] that 121 tablets of Percodan
is excessive for a patient that comes into
your office. Did you ever think about
how much Percodan you were giving the
patient?

A. I see now in retrospect and the way it
looks on this record, I should probably
have noticed, but it did not occur to me
or I would not have’ continued _ to
prescribe it for him.

Based upon its review of this evidence, the
Texas Supreme Court properly determined that the
Board's suspension of Petitioner's dental license was
reasonably supported by the evidence in the record
as a whole. Of course, a reviewing court must also
assure itself that the agency has not otherwise

| _

13

acted arbitrarily. Conservation Law Found. of New
England v. Clark, 590 F.Supp. 1467, 1473 (D.
Mass. 1983). "With respect to questions of fact the
proper inquiry is whether on the record as a whole
the agency could reasonably make the finding that
it did." Id. at 1474, citing Pre-Fab Transit Co. v.
United States, 306 F.Supp. 1247, 1250 (D.C. Ill.
1969), aff'd, 397 U.S. 40 (1970). In other words,
has the agency exercised reasoned discretion? Id.
at 1473, citing Greater Boston Television Corp. v.
FCC, 444 F.2d 841, 850 (D.C. Cir. 1970), cert.
denied, 403 U.S. 923 (1971); accord, e.g., Chaney
v. Heckler, 718 F.2d 1174, 1189 n. 38 (D.C. Cir.
1983); See also Motor and Equip. Mfrs. Ass'n, Inc.
v. E.P.A., 627 F.2d 1095, 1123 (D.C. Cir. 1979),
cert. denied, 446 U.S. 952 (1980) (where the court
stated that the agency's administrator's "burden" is
the burden of acting reasonably).

Where a matter is committed to agency discre-
tion, the exercise of that discretion should not be
disturbed on appeal unless abuse of discretion is
shown. State of Texas v. Crank, 666 S.W.2d 91,
94 (Tex. 1984) cert. denied, 469 U.S. 833 (1984)
(where the Dental Board did not abuse its discre-
tion in refusing to grant dentist a continuance).
See also Withrow v. Larkin, 421 U.S. 35, 55 (1975)
and United States v. Morgan, 313 U.S. 409, 421
(1941). The findings and conclusions of the Board
are not "...[s]Jo out of touch with reality revealed
by the whole record as to be arbitrary and capri-
cious. ..." Crounse Corp. v. I.C.C., 781 F.2d
1176, 1187 (6th Cir. 1986), cert. denied, 479 U.S.
890 (1986). The decision of the Board is supported
by at least the minimum quantum of evidence neces-
sary to satisfy the due process clause. The opin-
ion of the Texas Supreme Court should be affirmed.

14

QUESTION 2

MAY AN EXPERT WITNESS BASE AN OPINION IN A
PARTICULAR CASE ON FACTS OR DATA PER-
CEIVED BY OR MADE KNOWN TO HIM AT OR BE-
FORE THE HEARING IF IT IS OF A TYPE REASON-
ABLY RELIED UPON BY EXPERTS IN THE FIELD IN
FORMING OPINIONS OR INFERENCES ON THE SUB-
JECT?

The Texas Supreme Court correctly affirmed
the Board's conclusion that Petitioner over pre-
scribed narcotic drugs as being supported by sub-
stantial evidence. The expert witness in this case,
Dr. Arthur Jeske, is both a dentist and a pharma-
cist. There is expert testimony in the administra-
tive record that Percodan is a Schedule II con-
trolled substance and that it possesses addictive
qualities. (Transcript of Proceedings, PP. 13-14,
supra). There is expert testimony to the effect
that the prescriptions issued were not necessary or
required in the treatment of these patients. (Tran-
script of Proceedings, PP. 18-19, 24, and 26, su-
pra). There can be no question that Sizemore
intentionally and knowingly wrote the prescriptions
in the quantities and amounts found in the Board's
decision. The evidence showed, and the Board
found, that such intentional prescriptions were
excessive, not necessary, and furthered addiction.

Prior to entering its order suspending the
license, the Board members received and considered
only the competent and material evidence offered
during the administrative hearing. See NLRB v.
Burns, 207 F.2d 434, 436 (8th Cir. 1953) citing
Donnelly Gammert Co. v. NLRB, 123 F.2d 215, 224
(8th Cir. 1942). The Petitioner, nevertheless,
would have this Court impermissibly substitute its
evaluation of the expert testimony for that of the
Board members. A reviewing court's characterization

15

of the underlying conduct in question is irrelevant.
Notwithstanding Petitioner's assertion, "[s]ome
adjudicative facts might very well require expert
knowledge or experience to properly evaluate the
evidence." Adams v. Texas State Bd. of
Chiropractic Examiners, 744 S.W.2d 648, 654 (Tex.
App.--Austin 1988, no writ). "Where there is a
logical basis for an expert's opinion testimony, the
credibility and weight of that testimony is to be
determined by the jury, not the trial judge."
Breidor v. Sears, Roebuck and Co., 722 F.2d 1134,
1138-39 (3rd Cir. 1983).

The majority's reasoning in the Court of Ap-
peals for disregarding the expert testimony before
the Board is stunning. Justice Howell, in footnote
5 at page 398, pens:

The qualifications of expert witness Jeske
are acknowledged and impressive. How-
ever, his testimony was subjective; he
repeatedly attached the limiting phrase
"in my opinion" to his testimony...

Compare DaSilva v. American Brands, Inc., 845
F.2d 356, 361 (1st Cir. 1988) (the use of the terms
"my belief" or "could have" is sufficient to support
an expert's conclusions and opinions). This Court
stated in NLRB v. Pittsburg S.S. Co., 337 U.S.
656, 660 (1949) that the evidence relied on by the
agency must itself be incredible, and "carry its own
death-wound" in order for the reviewing court to
find that a hearing is unfair.

TEX. R. EVID. 703 and 705 are dispositive.

The expert may testify in terms of opin-
ion or inference and give his reasons
therefore without prior disclosure of the

16

underlying facts or data, unless. the
Court requires otherwise...

TEX. R. EVID. 705 (1983). See also FED. R.
EVID. 703 and 705. "This rule makes no mention of
just how much underlying data should be disclosed
or the manner in which it should be presented."
Wendorf and Schlueter, Texas Rules of Evidence
Manual (1983), p. 157.

The Petitioner's requirement that expert wit-
nesses in a Dental Board disciplinary proceeding
examine the patients of the practitioner under re-
view renders the following evidentiary rule mean-
ingless:

The facts or data in the particular case
upon which an expert bases an opinion or
inferences may be perceived by or made
known to him at or before the hearing.
If of a type reasonably relied upon by
experts in the particular field in forming
opinions or inferences upon the subject,
the facts or data need not be admissible
in evidence.

TEX. R. EVID. 703 (1983); See also Barefoot v.

Estelle, 463 U.S. 880, 903-05 (1983) (predictions of —

future dangerousness by a psychiatrist who had
never examined the defendant were allowed);
Teen-Ed, Inc. v. Kimball Intern., Inc., 620 F.2d
399, 402-03 (3rd Cir. 1980); Moore v. Grantham,
599 S.W.2d 287, 290 (Tex. 1980); Lewis v.
Southmore Sav. Ass'n, 480 S.W.2d 180, 186 (Tex.
1972); Trailways, Inc. and Trailways of Texas,
Inc. v. Mendoza, 745 S.W.2d 63 (Tex. App.--San
Antonio 1988, no writ); Lipsey v. Texas Dep't of
Health, 727 S.W.2d 61, 72 (Tex. App.--Austin
1987, writ ref'd n.r.e.) and Otis Elevator Co. v.
Wood, 436 S.W.2d 324, 330-31 (Tex. Civ.

17

App.--Austin 1975, no writ). In reality, the Peti-
tioner is objecting to the form of the expert testi-
mony rather than its substance.

It requires no great leap of faith for this
Court to find the Board members could have rea-
sonably concluded that Petitioner consequently
engaged in dishonorable or unprofessional conduct

by "grossly over prescribing ... narcotic drugs,
or controlled substances." Unless the decision
is "so overwhelming ... as to shock the conscience

or to show clearly that the conclusion reached was
wrong, or was the result of passion, prejudice or
improper motive," a reviewing court should not
disturb fact-findings based upon "conflicting evi-
dence where there is some evidence to support" the
decision. Trailways, Inc. v. Mendoza, 745 S.W.2d
at 66; See also Swinney v. Winters, 532 S.W.2d
396, 406 (Tex. Civ. App.--San Antonio 1975, writ
ref'd n.r.e.).

QUESTION 3

DOES THERE EXIST A RATIONAL BASIS FOR THE
TEXAS LEGISLATURE TO HAVE PROVIDED FOR
DIFFERENT STANDARDS OF JUDICIAL REVIEW FOR
DIFFERENT PROFESSIONS WITHOUT DENYING
EQUAL PROTECTION?

Texas courts have consistently held that the
right to trial by jury does not apply to administra-
tive proceedings generally. State of Texas v. Cred-
it Bureau of Laredo, Inc., 530 S.W.2d 288, 293
(Tex. 1975), citing State v. DeSilva, 145 S.W.2d
230 (Tex. 1912), and Texas Liquor Control Bd. v.
Jones, 112 S.W.2d 227 (Tex. Civ. App.--Texarkana
1937, no writ). Furthermore, it is clear that judi-
cial appeals from administrative agency decisions
may properly be conducted under the substantial
evidence rule, which does not include a right to

18

trial by jury. Halsell v. Texas Water Comm'n, 380
S.W.2d 1 (Tex. Civ. App.--Austin 1964, writ ref'd
n.r.e.); Lewis v. Metropolitan Sav. and_ Loan
Ass'n, 550 S.W.2d 11 (Tex. 1977); McConnell v.
Alamo Heights Indep. School Dist., 576 S.W.2d 470
(Tex. Civ. App.--San Antonio 1978, writ ref'd
n.r.e.). See also McKeiver v. Pennsylvania, 403
U.S. 528 (1971) (due process does not require trial
by jury in civil juvenile delinquency proceedings) ;
Dorsey v. Solomen, 435 F.Supp. 725, 733 (1977),
citing Doremus v. Farrell, 407 F.Supp. 509, 516
(D. Neb. 1975) (due process does not require jury
trial in civil commitment proceeding).

In the most recent state court opinion on this
issue, the Court of Appeals for the Third Supreme
Judicial District at Austin has written that the
cause of action is ‘purely statutory’ in that the
rights to be enforced and the remedies provided
were not known at common law. Simply put, the
legislature is only prohibited from abrogating "the
right to a jury trial if it existed by statute or
under the common law at the time the Constitution
was adopted in 1876."" Adams, 744 S.W.2d at 651.
Similar reasoning applies to substantial evidence
review under the Dental Practice Act. See also
Martinez v. Texas State Bd. of Medical Examiners,
476 S.W.2d 400, 405 (Tex. Civ. App.--San Antonio
1972, writ ref'd n.r.e.), appeal dismissed, 409
U.S. 1020 (1972) (for authority that trial by jury is
not required in a proceeding to review the order of
an administrative agency where the_ substantial
evidence rule is the statutory standard of review).

In 1978, the Texas Supr “-uwt said, in South-
western Vv. Publi , W.2d
903, 51°: 1978), * ational
infirmity ' ating judicis : ord
taken be admini ‘4 ; o
bama Pub. Cc. di, ‘]

U.S. 341, Su. 91).

19

The Texas Constitution contains two separate
provisions regarding the right to trial by jury.
The first is Article I, Section 15, found in the Bill
of Rights of the Constitution; the second is Article
V, Section 10, contained in the Judiciary Article.
The Bill of Rights provision continues the right to
a jury in all actions where the right existed at the
time the constitution was adopted. See Credit
Bureau of Laredo, 530 S.W.2d 288, 291. The
present Constitution was adopted in 1876; dentists
were specifically exempted from the operation of the
1873 Medical Practice Act in 1907; and the Dental
Practice Act was initially enacted by the Acts of
1919, 36th Leg., ch. 31, p. 50. Prior to 1919,
there was no requirement for licensure of dentists,
and consequently there could be no_ sanctions
imposed against a non-existent license. It follows,
therefore, that the Petitioner would not be entitled
to a jury trial under the Bill of Rights Jury
Article.

The Judiciary Article, Article V, Section 10,
provides for jury entitlement in the "trial of all
causes." The Texas Supreme Court defines "cause"
as a "suit, litigation, or action. Any question,
civil or criminal, litigated or contested before a
court of justice." Id. at 292. The Court points out
that not all adversarial proceedings qualify as a
"cause" under the Judiciary Article. It is
submitted that an administrative disciplinary hearing
is not a "cause" as that term has been defined by
the Texas Supreme Court, and therefore, Petitioner
is not entitled to a jury.

Petitioner now asks this Court to declare un-
constitutional the provisions of TEX.REV.CIV.STAT.
ANN. art. 6252-13a, Section 19(e), the Administra-
tive Procedure and Texas Register Act (the
APTRA) which provide for appeal of administrative
orders under the substantial evidence rule. Peti-
tioner argues that because dentists in Texas are

20

allowed to appeal under the substantial evidence
rule while attorneys are allowed to pursue appeals
by trial de novo, Petitioner, whose appeal comes
under the substantial evidence rule, is denied Sixth
and Seventh Amendment rights to trial by jury and
is denied equal protection as guaranteed by the
Fourteenth Amendment to the United States Consti-
tution.

The question of whether the split system of
review constitutes a denial of equal protection has
not been directly addressed by the appellate courts
of this state. However, it is very clear that the
courts have condoned both types of review in up-
holding administrative review under both the trial
de novo and substantial evidence rule provisions.
Scott v. Texas State Bd. of Medical Examiners, 384
S.W.2d 686 (Tex. 1964); Martinez, 476 S.W.2d at
405. In Texas there is no right to appeal from an
administrative order unless an appeal is statutorily
provided or the administrative order adversely
affects a vested property right. Stone v. Texas

Liquor Control Bd., 417 S.W.2d 385, 386-87 (Tex.
1967).

It has also been held that where such a prop-
erty right exists, a licensee's due process rights to
an appeal are adequately protected by a substantial
evidence review. Martinez, 476 S.W.2d at 405.
Therefore, the holding in Martinez indicates that
the legislature may provide for appeal by substan-
tial evidence review without violating due process
rights. In Sherman v. Texas State Bd. of Dental
Examiners, 116 S.W.2d 843, 846 (Tex. Civ.
App.--San Antonio 1938, writ ref'd), it was held
that although a license to practice was a valuable
property right, "it is not such a vested right, in
the constitutional sense, that it may not be revoked
for good cause, and such revocation is not a taking

21

of property without due process." See also State
of Texas v. Crank, 666 S.W.2d 91.

Petitioner's basic contention, however, is that
the legislature, in providing that dentists must
appeal adverse administrative rulings under the
substantial evidence rule while attorneys appeal by
trial de novo, has violated dentists’ right to equal
protection. Petitioner has not urged the application
of the "strict scrutiny" test, which is inappropriate
because professions are not a suspect classification,
but instead argues that there is no "rational basis"
for the distinction as to manner of appeal. See
Harper v. Lindsay, 616 F.2d 849, 854 (5th Cir.
1980), citing Pollard v. Cockrell, 578 F.2d 1002,
1012 (5th Cir. 1978). "Equal protection of the law
simply means that similarly situated persons receive
similar treatment under the law." Dorsey, 435
F.Supp. at 734, citing Reed v. Reed, 404 U.S. 71,
75 (1971). Here, all dentists are treated the same
for purposes of judicial review.

It is well settled that a state may categorize
its citizens on the basis of their professions and
may make different laws respecting groups so clas-
sified. Semler v. Oregon State Bd. of Dental Ex-
aminers, 294 U.S. 608, 610 (1935); Tigner v. State
of Texas, 310 U.S. 659 (i940). See also Texas
Weter Rights Comm'n v. Wright, 464 S.W.2d 642
(Tex. 1971); Railroad Comm'n v. Miller, 434 S.W.2d
670 (Tex. 1968); Jefco, Inc. v. Lewis, 520 S.W.2d
915 (Tex. Civ. App.--Austin 1975, writ ref'd
n.r.e.). This Court in Williamson v. Lee Optical,
348 U.S. 483, 489 (1955) recognized that "the equal
protection clause of the Fourteenth Amendment does
not require states to treat different groups in the
same manner. Only unreasonable discriminations
are forbidden." Additionally,

22

"very wide discretion must be conceded to
legislative power of the state in the clas-
sification of trades, callings, businesses,
or occupations which may be subjected to
special forms of regulation. ... If the
selection or classification is neither capri-
cious nor arbitrary, and rests upon some
reasonable consideration of difference or
policy, there is no denial of equal protec-
tion."" Brown-Foreman Co. v. Kentucky,
217 U.S. 563 (1910).

Furthermore, "The mere fact that discrimina-
tion is made does not necessarily vitiate the classi-
fication, and unless there is no substantial basis
for the discrimination, there is no warrant for
judicial interference." Dodgen v. Depuglio, 209
S.W.2d 588, 594 (1948). In determining whether
there is any substantial basis for the classification
"the test is whether there is any basis for the
classification" which could have seemed reasonable
to the Legislature." Miller, 434 S.W.2d at 673,
citing San Antonio Retail Grocers, Inc. v. Lafferty,
297 S.W.2d 813 (1957). The equal protection
clause, moreover, does not require "absolute
equality or precisely equal advantages." Dorsey,
435 F.Supp. at 735, citing San Antonio Indep.
School Dist. v. Rodriguez, 411 U.S. 1, 24 (1974).

This Court has held that "statutory discrimina-
tion will not be set aside if any statement of facts
reasonable may be conceived to justify it..."
McGowan v. Maryland, 366 U.S. 420, 426 (1961)
and "the burden is on the one attacking the legisla-
tive arrangement to negative every conceivable
basis which might support it." Madden v. Ken-
tucky, 309 U.S. 83, 88 (1940). Petitioner's burden
before this Court is a heavy one. Petitioner must
show that there was no conceivable basis upon

23

which the legislature could have founded its deter
mination to provide for substantial evidence review
in some cases while not in others.

The difference in the standard of review be
tween dentists and attorneys stems from the appli
eability of the Administrative Procedure and Texas
Register Act. The APTRA applies to legislative and
executive agencies, boards, and commissions, but
does not apply to the courts, which are in the
judicial branch. See TEX.REV.CIV.STAT.ANN.art.
6252-13a Section 3(1). This Court has given great
deference to legislative purposes to create a strong
presumption of constitutionality. See City of New
Orleans v. Duke, 427 U.S. 297 (1976); McGowan,
366 U.S. at 425-26. Traditionally, this Court has
upheld any classification based “upon a state of
facts that reasonably can be conceived to constitute
a distinction, or difference in state policy. 7
Allied v. Bowers, 358 U.S. 522, 530 (1959).

As the highest state judiciary body, the Texas
Supreme Court has the “inherent power to regulate
the practice of law," State Bar Rules, Preamble,
and disciplinary action by the State Bar is subject
to the supervisory power of the Texas Supreme
Court. Texas State Bar Rules, Article X, § 1.
See also P.U.C. v. Cofer, 754 S.W.2d 397, 398-99
(Tex. 1979). Since the judiciary is a separate
branch of government not subject to the APTRA,
the Texas Supreme Court has promulgated its own
rules concerning the standard of review in license
revocation proceedings of attorneys and has chosen
trial de novo. Therefore, the different standards
of review for dentists and attorneys stems from the
fact that the Dental Board is an executive agency
subject to APTRA while attorneys are licensed
through the Texas Supreme Court, which as_ the
judicial branch is not subject to APTRA.

24

Finally, on pragmatic rather than constitutional
grounds, the Board urges against the striking of
the substantial evidence review. Under the provi-
sions of the Administrative Procedure Act, the
Board of Dental Examiners and other administrative
agencies are held to strict rules of procedure that
approximate and occasionally exceed those required
of the courts. See Judge McGee's dissent in Lewis
v. Metropolitan Sav. and Loan Ass'n, 550 S.W.2d
11, 16-17 (Tex. 1977). The de novo appeal ren-
ders worthless the agency record that is required
to be so carefully prepared. Therefore, if any
change is to be made to equalize the method of
judicial review of administrative orders it is the de
novo rather than the substantial evidence review
that should be eliminated. However, in absence of
any constitutional deficiencies in the present meth-
ods of review, such changes should remain the
province of the legislature rather than the courts.

CONCLUSION

Because the law governing the issues raised
by Petitioner is well settled, this Petition for Writ
of Certiorari should be denied.

Respectfully submitted,

JIM MATTOX
Attorney General of Texas

MARY F. KELLER
First Assistant
Attorney General

LOU McCREARY
Executive Assistant
Attorney General

JAMES C. TODD, Chief
General Litigation Div.

BROOKS WM. CONOVER, III
Assistant Attorney General
General Litigation Division
P.O. Box 12548

Capitol Station

Austin, Texas 78711-2548
(512) 463-2120 Ext. 208

26

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy
of the foregoing instrument has been sent via U.S.
Mail, certified, return receipt requested on this the

24th day of April, 1989, to:

Mr. Joe Alfred Izen, Jr.
5222 Spruce Street
Bellaire, Texas 77401

L.T. Bradt
4216 Lockefield
Houston, Texas 77092

Mr. Michael Louis Minns
10200 Old Katy Road, Suite 101
Houston, Texas 77043

BROOKS WM. CONOVER, III

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1117%3A2. Public record. Not legal advice.