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At a Glance:
Industrial Acc. Bd. v. Odowd
July 17, 1957
157 Tex. 432
Texas Supreme Court
Published Opinion

Industrial Acc. Bd. v. Odowd

Supreme Court of Texas.



E. H. O’DOWD et al., Respondents.

No. A-6264.


June 12, 1957.


Rehearing Denied July 17, 1957.

Attorneys & Firms

*433 **764 Will Wilson, Atty. Gen., John H. Minton, Jr., and John Reeves, Asst. Attys. Gen., for petitioner.

Richard Critz, F. L. Kuykendall, Austin, for respondents.


NORVELL, Justice.

The Court of Civil Appeals held on authority of *434 Industrial Accident Board v. O’Dowd, Tex.Civ.App., 298 S.W.2d 657.

Being of the tentative opinion (which has since been confirmed) that the Francisco case does not control this appeal, we granted the writ of error. In their reply to the application for the writ, respondents say that the opinion of the Court of Civil Appeals does not discuss all the grounds urged by them in support of the trial court’s order enjoining the Board from enforcing its suspension order. Under the view taken by the Court of Civil Appeals a discussion of additional bases to support its decision was patently unnecessary. However, being of the opinion that the order cannot be supported upon the grounds considered by the Court of Civil Appeals it becomes our duty to examine all contentions properly brought forward by respondents as the prevailing parties in the Court of Civil Appeals which they say would support the trial court’s judgment. Vanover v. Henwood, 136 Tex. 348, 150 S.W.2d 785.

We shall first consider the holding of the Court of Civil Appeals. That portion of Article 8307, s 4 now under attack reads as follows:

‘Process and procedure shall be as summary as may be under this law. The Board or any member thereof shall have the power to subpoena witnesses, administer oaths, inquire into matters of fact, examine such parts of the books and records of the parties to a proceeding as relate to questions in dispute, punish for contempt in the same manner and to the same extent as a District Court may do, and to bar persons guilty of unethical or **765 fraudulent conduct from practicing before the Board. All rulings and decisions of the board relating to disputed claims shall be upon questions of fact and in accord with the provisions of this law.’

The Court of Civil Appeals has held that this statutory provision is invalid because of a failure to provide for a notice of hearing as required by the due process clauses of the state and federal constitutions.

*435 The essential facts may be briefly stated. Respondents E. H. O’Dowd and M. M. O’Dowd are practicing attorneys residing in Waco, McLennan County, Texas. On April 30, 1955, the Board notified respondents that on May 16, 1955, a hearing would be held pursuant to complaints received as to their alleged unethical and fraudulent conduct in connection with workmen’s compensation cases before the Industrial Accident Board. Such hearing was held on the date set and on May 20, 1955, the Board entered an order finding respondents guilty of unethical conduct in seven cases and guilty of fraudulent conduct in fourteen cases pending before the Board and suspended them from practicing before the Board for a period of three years from and after May 20, 1955.

The trial court by temporary injunction restrained the Board from enforcing this order and this action was affirmed by the Court of Civil Appeals.

It seems that under the statute it is contemplated that a hearing be had before action is taken. We have provisions relating to process and procedure, the subpoenaing of witnesses, inquiries into facts and the like, all of which are pertinent to a hearing or examination. The statute does not explicitly provide for a notice of hearing. Does this render the statute void?

To our minds, Francisco v. Board of Dental Examiners, Tex.Civ.App., 149 S.W.2d 619, 622, wr. ref. does not reach the point. There the statute provided that the Board of Dental Examiners should revoke a dental license upon receipt of a certified copy of the record showing that a licensee had been convicted of insanity or a felony involving moral turpitude. There was no requirement for a hearing and hence none for notice. In fact the statutory direction to the Board was to proceed without hearing and without notice. As pointed out by the Court, ‘the order operates instanter, and the licensee is at once deprived of the right lawfully to practice his profession.’

There is language in Stuart v. Palmer 74 N.Y. 183, 30 Am.Rep. 289,[FN1] decided in 1878 which lends some support to the proposition that a statute of the species now before us must contain *436 an express provision for notice otherwise it will be held invalid, viz.: ‘It is not enough that the owners may by chance have notice, or that they may as a matter of favor have a hearing. The law must require notice to them and give them a right to a hearing and an opportunity to be heard.’ A holding that a statute must expressly provide for notice or it is invalid is patently unsound. It is a common thing for a court to recognize and enforce implied or implicit clauses in both statutes and contracts. To hold that implied provisions could not be afforded validity when a constitutional due process clause is involved would be to reverse the general **766 rule of construction that a statute must be construed so that it will be constitutional and hence valid if the language thereof is reasonably susceptible to such construction.

Obviously if the explicit provisions of a statute direct and administrative board to proceed without notice in contravention of the constitutional due process requirements (as in the Francisco case) there would be no room for a presumption that the Legislature intended that a notice be given. However, on the other hand, we must assume that the Legislature intended to enact a valid law, and in the absence of express language to the contrary, intended that the administrative board should proceed in accordance with constitutional requirements. The Board here construed the statute as requiring notice and notice was actually given. Under these circumstances the following language from American Power & Light Co. v. Securities and Exchange Commission, 329 U.S. 90, 67 S.Ct. 133, 143, 91 L.Ed. 103, seems applicable:

‘That the statute does not expressly insist upon what in fact has been given the security holders is without constitutional relevance under these circumstances. Wherever possible, statutes must be interpreted in accordance with constitutional principles. Here, in the absence of definite contrary indications, it is fair to assume that Congress desired that s 11(b)(2) (Japanese Immigrant Case (Yamataya v. Fisher) 189 U.S. 86, 100, 101, 23 S.Ct. 611, 614, 47 L.Ed. 721 (725, 726).’

*437 Another statement of the prevailing rule upon the subject is found in Caughman v. Columbia, Newberry & Laurens Ry. Co., 82 S.C. 418, 64 S.E. 240, 242, viz.:

‘A statute is invalid which requires something to be done which is forbidden by the Constitution, but it cannot be essential to the validity of a statute that it should enjoin obedience to the Constitution. The great weight of authority is to the effect that while notice of a special burden or duty which a board such as this proposes to impose must be extended, and an opportunity to be heard on the rightfulness of the exactions must be given, it is not necessary that the statute under which the board acts should expressly provide notice.’

Likewise in McManus v. Industrial Commission, 53 Ariz. 22, 85 P.2d 54, 56, the Supreme Court of Arizona said:

‘It is, * * * true that notice and opportunity to defend must be a matter of right and not a matter of grace, but we think that such right may be implied from the terms of a statute without being expressly and explicitly set forth in detail therein. * * * We think that when the word ‘hearing’ is used in a statute which attempts to confer jurisdiction to determine whether the property of one person shall be taken and given to another, it necessarily implies, as a matter of law, that the hearing shall be one of which reasonable notice is given to the parties and at which they have an opportunity to appear and present any defense which they may have against such taking, and that any proceeding which does not comply with these two conditions is not a ‘hearing’ within the meaning of the law, and any order made in pursuance of such proceeding is void for lack of jurisdiction. This **767 general principle of implied notice has been upheld in a number of cases where the statute was not as explicit in regard to the necessity of a hearing of some kind as is the law under consideration at the present time.’

See, also, Robitzsch v. State, 189 Ga. 637, 7 S.E.2d 387.

Respondents say that although we might disagree with the *438 holding of the Court of Civil Appeals the order of the trial court should nevertheless be affirmed because:

(1) The Industrial Accident Board cannot prohibit an attorney at law from practicing before it.

(2) The statute is invalid because it fails to provide (a) for judicial review, (b) contains no proper definition of unethical or fraudulent conduct.

(3) The trial court did not abuse its discretion in weighing the equities of the case and thereupon granting the temporary injunction.

The statute does not specifically deal with attorneys at law. It provides that the Board may ‘bar persons guilty of unethical or fraudulent conduct from practicing before the Board.’ In our opinion the power of the Legislature to thus authorize an administrative body or branch of the executive department of government to control its operations and require ethical and good faith practice from those appearing before it cannot be gainsaid. s 5 has no application to the present proceedings.

The right to practice before an administrative board when once granted is admittedly a valuable right and entitled to protection under the due process clauses of the state and federal constitutions. In Waller v. State, Tex.Civ.App., 68 S.W.2d 601, wr. ref., viz.:

‘The right to practice a profession has been called a property right, but it is more. To obtain a license and proficiency requires the expenditure of money and years of preparation, attended by toil and self-denial. Such right is the capital stock of its possessor from which dividends are expected sufficient to protect him from the infirmity of old age, and to provide his family with the comforts of life. There is moreover a prestige and good name and should be a pride attached to the practice of an honorable profession superior to any material possessions. *439 To cancel a professional license is to take the entire capital stock of its possessor and to leave him in most instances the equivalent of a bankrupt. But it does much more than this; it takes from him his professional standing and in a manner whatever good name he has, which leaves him ‘poor indeed.“

This being true, the rule of Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666, is applicable. In the cited case, this Court said:

**768 ‘It is generally recognized that even without express statutory authorization the orders entered by an administrative body pursuant to legislative sanction are subject to judicial review. 122 Tex. 459, 61 S.W.2d 1022. * * *

‘* * * An administrative agency, though vested with discretion in its acts, must not exercise its powers arbitrarily or capriciously, and the reasonableness of its orders is, and under our system of government must be, subject to judicial review. Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424. * * *.’

See also City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 in which White v. Bolner is discussed and approved.

While it is settled that the question of whether an administrative order is reasonably supported by substantial evidence cannot be determined upon a hearing for a temporary injunction, *440 Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549, respondents are undoubtedly entitled to litigate such issue upon the merits. We accordingly overrule their contention that the statute is void because it contains no express provision for a judicial review of the Board’s order.

As bearing upon the contentions that the statute or the present proceedings under it are invalid because of the indefinite meaning of the terms unethical or fraudulent conduct, the record is not as complete as might be desired.

The same situation exists when an attempt is made to weight the equities in order to determine whether a temporary injunction should issue to preserve the status quo until a final judgment can be rendered. It seems that the parties in the trial court desired to present primarily the question of ‘notice’ as affecting the validity of the statute. The allegations of the petition filed by respondents as plaintiffs were traversed fully by the verified answer of the Industrial Accident Board. For the purposes of this particular hearing only it was stipulated that ‘the testimony referred to in * * * (the Board’s answer) as that factual information upon which the Board’s order was predicated might also be considered by the Court in the trial upon the application for temporary injunction.’

From the record, we cannot ascertain the method of procedure employed by the Board. Its order of suspension purports to find respondents guilty of seven acts of ‘unethical conduct’ and fourteen acts of ‘fraudulent conduct’ thus indicating that the Board construes the statute as prescribing two classes of offenses for which a suspension may be ordered. Unethical conduct is a somewhat indefinite term and generally has reference to certain prescribed standards or rules of behavior adopted by a profession itself or some other proper authority. From the record **769 we are unable to ascertain if the Board has adopted any such rules or canons. The word ‘fraudulent’, however, is said to possess a well known signification, 37 C.J.S. p. 835, and the term ‘fraudulent conduct’ on the part of an attorney at law has been defined as ‘an act, omission or concealment done, made or effected as an attorney with a purpose, design or intent to carry out fraud or wrong.’ Rowland v. State, Tex.Civ.App., 55 S.W.2d 133, 137. In view of a prospective trial upon the merits and the restrictions placed upon the use of the stipulation before us, we comment no further than to say that if the ‘factual information’ contained in the Board’s answer and referred to in the *441 trial stipulation be accepted as testimony, it supports a charge of fraudulent conduct. It follows that respondent’s attack upon the Board’s order charging indefiniteness of accusation or lack of proof necessarily fails.

As above indicated, the pleadings and stipulations afford no basis for the issuance of a temporary injunction on the theory that the better equity requires such action to maintain the status quo or prevent serious injury to respondents pending a trial upon the merits. Under the stipulation of the parties, the only ‘evidence’ which the trial judge was authorized to consider consisted of the factual allegations contained in the Board’s answer. As might be supposed, this ‘evidence’ was all one way and wholly failed to disclose that respondents had a probable right or were threatened with a probable injury which would justify equitable intervention. Upon the record made in the trial court, our holding that the statute is valid effectually destroys the preliminary injunction.

The judgments of the District Court and the Court of Civil Appeals are both reversed and judgment here rendered vacating the temporary injunction.



Stuart v. Palmer is quoted with approval by the Supreme Court of the United States in Hecht v. Monaghan, 307 N.Y. 461, 121 N.E.2d 421.

End of Document