Daniel William SCOTT, Jr., M.D., Petitioner, v. TEXAS STATE BOARD OF MEDICAL EXAMINERS, Respondent, 384 S.W.2d 686

STEAKLEY, Justice. Acting under Articles 4505 and 4506, Vernon’s Ann.Civ.St, the Texas State Board of Medical Examiners revoked and cancelled the license to practice medicine of Petitioner, Daniel William Scott, Jr., M.D. The order of the Board was as follows: “On this the 18th day of August, 1962, came on to he heard before the Texas State Board of Medical Examiners, duly in session, a certain complaint filed with the Board on the 26th day of July, 1962, in which it was complained that Daniel William Scott, Jr., M.D., had violated the provisions of SubDivisions (4), (5), and (12) of

Article 4505, Revised Civil Statutes of Texas, 1925, as amended, such violation being grounds for the cancellation, revocation or suspension of the license to practice medicine in the State of Texas, by Daniel William Scott, Jr., M.D., and the said Daniel William Scott, Jr., M.D., of Houston, Harris County, Texas, having appeared in person and through his Counsel, Mr.

William Dor-man, and the said charges and complaint having been read, and the evidence on said complaint and charges having been introduced and heard, and after consideration of the charges and evidence, the Board is of the opinion that the charges contained in the complaint are true in so far as said charges relate to prescribing and administering amphetamine, amphetamine derivatives and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to known addicts, and also in so far as said complaint relates to prescribing and administering amphetamine, amphetamine derivatives, and compounds, barbiturates, barbiturate derivatives and compounds, and Class A narcotic drugs to patients of Daniel William Scott, Jr., M.D., under conditions which said Daniel William Scott, Jr., M.D., knew or should have known there was no therapeutic need for such patients, therefore “IT IS ACCORDINGLY ORDERED, ADJUDGED AND DECREED, that the license to practice medicine within the State of Texas, heretofore held by Daniel William Scott, Jr., M.D., be revoked and cancelled. “Rendered and entered this 18th day of August, 1962.” (Emphasis added) The Board recognizes that the findings in the above order do not support a revocation under Subdivisions (5) and (12) of

Article 4505. Its position is that the findings that Scott prescribed and administered narcotic drugs to known addicts and, additionally, that Scott prescribed and administered narcotic drugs to his patients when there was no medical need therefor, support the act of revocation of Scott’s license under Subdivision (4) of

Article 4505 which defines a cause for revocation as “

(4) Grossly unprofessional or dishonorable conduct, or [sic — should read of] a character which in the opinion of the Board is likely to deceive or defraud the public.” Scott appealed the order of cancellation to the district court. The court ruled that the case should be tried pursuant to the appeal provisions of

Article 4506 which require that the proceeding on appeal shall be in the nature of a trial de novo as such term is commonly used and intended in an appeal from the justice court to the county court. Under the ruling of the trial court the burden of sustaining its order was placed on the Board. Trial was to a jury.

The Board offered evidence to establish that between July 1, 1960, and March 3, 1963, approximately one hundred and five prescriptions for various drugs identified as amphetamine, amphetamine derivatives, amphetamine compounds, barbiturates, barbiturate derivatives, barbiturate compounds, or Class A narcotic drugs were issued by Scott to one Douglas Ait-ken; that between August 28, 1961, and March 22, 1962, nine similar prescriptions were issued to one Eugene Ansley; and that between November 30, 1961, and August 10, 1962, twenty-eight similar prescriptions were issued to one Paul Ross.

Evidence was also offered to establish that each of these individuals was a known drug addict; and, further, that drug prescriptions on a lesser number of occasions were issued by Scott to other addicts. There was evidence that the recipients of the prescriptions were of disreputable, and in some instances of criminal, character. No evidence was offered by the Board to establish, either by the testimony of its members or other members of the medical profession, that recipients of the prescriptions could not have had a medical need therefor and that the prescriptions did not constitute proper medical treatment.

The jury was instructed “that a duly licensed medical doctor holding a valid federal narcotic license is legally and medically authorized to prescribe narcotic drugs to his patients, whether or not such patients are known to be addicted to the use of such drugs, if, in the opinion of such medical doctor the giving of such drugs is of therapeutic value in the treatment of such patients.” This instruction comports with the provisions of the Penal Code.

The jury found that Scott prescribed the drugs to persons known to him to be addicted to one or more of them; that Scott in the exercise of ordinary care should have known that the persons for whom he prescribed the drugs were addicted to one or more of them; and that the conduct represented by these respective findings constituted grossly unprofessional and dishonorable conduct of a character likely to deceive or defraud the public. The trial court, however, granted Scott’s motion for judgment non obstante veredicto and entered judgment denying the Board the right to cancel his license.

The Court of Civil Appeals reversed and remanded the cause for a new trial. It held unconstitutional the appeal provision of

Article 4506 as violative of

Article II,

Section 1, of the Constitution of Texas, Vernon’s Ann. St. providing for the division of powers into-three departments of Executive, Legislative and Judicial. The remand for a new trial under the substantial evidence rule was stated by the Court of Civil Appeals to be in the interest of justice because the case had not been fully developed. Both Scott and the Board of Medical Examiners have filed Applications for Writ of Error. Each urges for different reasons that the remand of the case by the Court of Civil Appeals was in error, and each seeks a favorable judgment of rendition.

We reverse the judgment of the Court of Civil Appeals and. affirm the judgment of the trial court. It is the basic position of Scott that the requirement of

Article 4506 for a full do novo trial is constitutional; that the Board failed to discharge its burden of establishing its case against him by competent evidence before the court, particularly in not offering medical and expert evidence to establish that the prescriptions issued by him were not issued in good faith and in response to-medical needs; that the findings of the jury will not support a revocation under Subdivision (4) of

Article 4505; that the delegation to the Board in Subdivision (4) provides no standard, and is so vague, indefinite and uncertain as to render the Subdivision void for want of due process. The basic position of the Board is that the Court of Civil Appeals correctly held the appeal provision of

Article 4506 unconstitutional and that the case should have been tried under the substantial evidence rule; but that the Court of Civil Appeals, erred in failing to hold as a matter of law' that its order revoking Scott’s license has reasonable support in substantial evidence. In the enactment of statutes governing the qualifications to practice medicine in Texas, the Legislature is exercising an expressly granted constitutional authority.

Article XVI,

Section 31, of the Constitution of Texas provides: “The Legislature may pass laws prescribing the qualifications of practitioners of medicine in this State, and to punish persons for mal-practice, but no preference shall ever be given by law to any school of medicine.” The present statutes stem from

an Act of the 29th Legislature in 1905 prohibiting malpractice and frauds in the practice of medicine and providing for revocation by the District Court of the license to practice medicine; and from the Medical Practice Act of

Section 11 of the 1907 Act, which became

Article 4505 of the 1925 codification, provided that the State Board of Medical Examiners may refuse to admit persons to its examinations or to issue a medical license for various causes, one of which was “other grossly unprofessional or dishonorable conduct of a character likely to deceive or defraud the public.” In 1939 major revisions in the Medical Practice Act were enacted. As relevant here, present Subdivision (4) was made a part of

Article 4505 and similar language was removed from

Article 4507. For the first time there was included the phrase “which in the opinion of the Board,” so that the subdivision reads “[gjrossly unprofessional or dishonorable conduct [of], a character which in the opinion of the Board is likely to deceive or defraud the public.” It is to be further noted that the right of revocation of a medical license (as distinguished from a refusal to issue a license initially) was by the 1939 amendments limited to the district courts. But in 1953 the Legislature repealed

Article 4507 and

Article 4506 was amended to invest the Texas State Board of Medical Examiners with authority to cancel, revoke or suspend the license of a practitioner of medicine. The amendment of

Article 4506 authorized such action “upon proof of the violation of the law in any respect with regard thereto, or for any cause for which the Board shall be authorized to refuse to admit persons to its examination, as provided in

Article 4505 of the Revised Civil Statutes of Texas, 1925, as amended.” One of such causes is set forth in Subdivision (4) of

Article 4505. It was further expressly provided in the 1953 amendment of

Article 4506 that: “Any person whose license to practice medicine has been cancelled, revoked or suspended by the Board may, within twenty (20) days after the making and entering of such order, take an appeal to any of the district courts in the county of his residence, but the decision of the Board shall not be enjoined or stayed except on application to such district court after notice to the Board.

The proceeding on appeal shall be a trial de novo, as such term is commonly used and intended in an appeal from the justice court to the county court, and which appeal shall be taken in any District Court of the county in which the person whose certificate of registration or license is involved, resides. * * * ” In the type of appeal thus required the court tries the issues anew. The burden of proof in sustaining the order is upon the administrative agency. Whether by the court or a jury, fact questions are resolved by a preponderance of the evidence. Southern Canal Co. v.

State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619 (1958); State by and through State Board of Morticians v. Cortez, 160 Tex. 532, 333 S.W.2d 839 (1960); Key Western Life Insurance Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961). In the reported cases since the 1953 amendments, the State Board of Medical Examiners does not appear to have attacked the constitutionality of the appeal provisions of

Article 4506. Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609 (1959), was an appeal from the act of the Board in cancelling the license of Dr. Koepsel to practice medicine; this Court spoke of fact questions to be submitted to the jury. It was stated in Rockett v. Texas State Board of Medical Examiners, 287 S.W.2d 190 (C.C.A.1956, writ ref. n. r. e.), that “There can be no question but that appellant was entitled to a trial ‘de novo’ in its broadest sense.” Cf. Watt v. Texas State Board of Medical Examiners, 303 S.W.2d 884 (C.C.A. 1957, writ ref.); Jacobi v.

Texas State Board of Medical Examiners, 308 S.W.2d 261 (C.C.A.1957, writ ref. n. r. e.); Texas State Board of Medical Examiners v. McClellan, 307 S.W.2d 317 (C.C.A.1957, writ ref. n. r. e.). It is seen from the legislative history of the Medical Practice Act that from the beginning the revocation of a medical license has been committed to the district courts as a judicial function. It has been traditionally so. It is still an original function of the district courts under present

Article 4512 if a practitioner has been guilty of “any fraudulent and dishonorable conduct,” as well as for other causes specified in the statute. Revocation of a medical license was also an original function of the courts under

Article 4507 until the 1953 amendments; since the amendments revocation has been an appeal function of the courts. See Goldman v. State, 277 S.W. 2d 217 (C.C.A.1954, wr. ref., n. r. e.). There is a difference, legislatively recognized through the years, between an exercise of the power to examine and issue a medical license, and an exercise of the power to revoke a medical license for cause. The Legislature has not required that an appeal from acts of the Board refusing to examine an applicant and to issue a medical license shall be de novo in the full sense; it has done so with respect to the appeal from

an act of the Board revoking a medical license once granted. It is self-evident that the latter does not involve a question of public policy and the determination of legislative facts in the sense of the decisions of this Court in Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699, and Chemical Bank and Trust Co. v. Falkner, 369 S.W.2d 427 (Tex.Sup.1963). This points to what should be the controlling criteria of constitutionality. The validity of a full de novo appeal requirement turns on the nature of the act of the administrative agency contemplated by the statute to which the appeal requirement refers.

An important consideration is whether the administrative action called for by the empowering legislative act involves public policy or is policy-making in effect, or whether the action concerns only the parties who are immediately affected. Here, the question of whether a particular medical practitioner has performed acts and engaged in conduct requiring revocation of his license under the standards prescribed by the Legislature involves the professional activities of only one person.

In resolving this matter the Board was not engaged in promulgating rules of general application or in deciding questions of broad public policy. The fact questions inherent in the decision of the Board are typical of those which can on appeal be decided by a judge or a jury on evidence introduced in court. We recognize that there are differences in the wording of the subdivisions of

Article 4505. Subdivisions (3) and (4), for example, employ the phrase “in the opinion of the Board” which is absent from the other eleven subdivisions. It is argued that this phrase necessarily represents a delegation of legislative discretion which cannot be constitutionally exercised by the courts on appeal. But a revocation by the Board under each of the subdivisions of

Article 4505 necessarily is addressed to the opinion of the Board; that is, the Board must be of the opinion that the licensee has been guilty of acts and conduct contrary to the legislative standards embraced within the particular subdivision under which the Board acts. The constitutionality of the de novo appeal requirement should not be made to turn on technical differences in the terminology or upon the “quantity” of delegation which may be said to be encompassed in the language used. It would be artificial indeed to say that the de novo appeal requirement is unconstitutional as to those subdivisions of

Article 4505 which employ the phrase “in the opinion of the Board” but is constitutional as to the other subdivisions which do not do so. Accordingly, we sustain the constitutionality of the de novo appeal requirement of

Article 4506 as not being in contravention of the separation of powers provision of the Texas Constitution,

Article II,

Section 1. The trial court therefore correctly ruled that the appeal from the order of revocation of the Board in the case at bar was to be tried de novo in the full sense, with the burden upon the Board to establish its case for revocation of Scott’s license by competent evidence before the court. The Board itself found Scott guilty of two types of acts. These were the prescribing of narcotic drugs for known addicts, and the prescribing of narcotic drugs for patients having no medical need therefor.

Only the former was submitted to the jury which found that Scott did prescribe narcotic drugs to persons whom he knew, or should have known, were addicts. There is evidence to support these jury findings. But the question is whether the acts represented by these findings, standing alone, and in the absence of evidence that the persons receiving the drugs had no medical need therfor, constitute acts and conduct which are grossly unprofessional or dishonorable and of a character likely to deceive or defraud the public. We hold that they are not.

The Penal Code expressly authorizes the good faith prescription of narcotic drugs by a licensed physician and the prohibitions of the Code with respect to the use of narcotic drugs do not apply to a person having a medical need therefor. «We recognize that the prescriptions which were shown to have been issued by Scott appear excessive to our lay minds; but there was no evidence offered by the Board from experts in the field of medicine, and in the use of narcotic drugs, to establish that Scott was not acting in good medical faith or that the prescriptions were not issued in response to medical needs.

We would have no difficulty in holding that the acts and conduct of a medical practitioner in prescribing narcotic drugs in medical bad faith would support the revocation of his license under Subdivision (4) of

Article 4505. But such is not shown in the record before us and the trial court properly entered judgment denying the Board the right to cancel Scott’s license. In its original application for writ of error the Board asserted by point of error that the Court of Civil Appeals erred in remanding this case for a new trial. Its argument thereunder was that its order has reasonable support in substantial evidence.

In its post-submission brief the Board argues further that the evidence supported the jury findings and that a judgment based thereon, and affirming the action of the Board, should have been entered by the trial court “in the interest of the public.” It is argued that the case for the Board is established by proof that Scott prescribed narcotics on the numerous occasions shown to persons already addicted, and by the failure of Scott to testify in justification of his conduct.

Section 21 of

Article 725b of the Penal Code is cited as support for the propositions that the Board did not have the burden of establishing the absence of a medical need for the prescriptions issued by Scott, and that the jury was entitled to consider Scott’s failure to justify the prescriptions.

Section 21 of

Article 725b provides that the burden shall be upon the defendant to establish any exception, excuse, proviso, or exemption in a proceeding brought for the enforcement of any provisions of

Article 725b. But

Article 725b is a penal statute and has no relation to the instant proceeding; moreover, this statute does not define as a criminal offense the prescription of narcotic drugs for an addict. And, as before noted,

Section 7 of

Article 725b expressly authorizes the prescription of narcotic drugs by a physician in good faith and in the course of his professional practice.

Article 725c of the Penal Code, which defines the crimes of habitual use of narcotic drugs, addictions to the use of narcotic drugs, and being under the influence of narcotic drugs, further provides that such provisions shall not be applicable to a person who has a medical need for narcotic drugs. We also mention that neither the Dental Statute,

Article 4549, nor the Pharmacy Statute,

Article 4542a,

Section 12; nor the Optometry Statute,

Article 4563, require that the proceeding on appeal from the acts of these respective Boards revoking and cancelling licenses shall be by trial de novo as in the appeal from the justice court to the county court. The cited cases holding that appeals therefrom are governed by the substantial evidence rule are therefore not in point to the Medical Practice Act, e. g., Texas State Board of Dental Examiners v. Fenlaw, 357 S.W.2d 185 (C.C.A.1962, no writ hist.); Garner v. Texas State Board of Pharmacy, 304 S.W.2d 530 (C.C.A.1957, writ ref.); State Board of Examiners in Optometry v.

Marlow, 257 S.W.2d 761 (C.C.A.1953, no writ hist.). This is likewise true of decisions in other jurisdictions with different statutory provisions; e. g., State Board of Medical Reg. and Exam. v. Scherer, 221 Ind. 92, 46 N.E. 2d 602 (1943); In re Harmon, 52 Wash. 2d 118, 323 P.2d 653 (1958); Jaffe v. State Department of Health, 135 Conn. 339, 64 A.2d 330, 6 A.L.R.2d 664 (1949). The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GRIFFIN, J., dissenting. . “A physician or a dentist, in good faith and in the course of his professional practice only, may prescribe, administer, and dispense narcotic drugs * * “It shall be unlawful for any person to habitually use narcotic drugs, be addicted to the use of narcotic drugs, or be under the influence of narcotic drugs, provided, however, that nothing in this

Section shall be applicable to a person who has a medical need for narcotic drugs * * *.”

Article 725b, Section 7(1) and

Article 725c,

Section 2, Vernon’s Annotated Penal Code. . Texas State Board of Medical Examiners v.

Scott, Tex.Civ.App., 377 S.W.2d 104. .Acts 1905, Ch. 150, p. 370; present Art. 4512, R.C.S., reading as follows: “Any physician or person who is engaged in the practice of medicine, surgery, osteopathy, or who belongs to any other school of medicine, whether they use the medicines in their practice or not, who shall be guilty of any fraudulent or dishonorable conduct, or of any malpractice, or shall, by any untrue or fraudulent statement or representations made as such physician or person to a patient or other person being treated by such physician or person, procure and withhold, or cause to be withheld, from another any money, negotiable note, or thing of value, may be suspended in his right to practice medicine or his license may be revoked by the district court of the county in which such physician or person resides, or of the county where such conduct or malpractice or false representations occurred, in the manner and form provided for revoking or suspending license of attorneys at law in this State.” .

Acts 1907, Ch. CXXIH, p. 224. . Sustained against the attack that the language is vague, uncertain and indefinite. Morse v. State Board of Medical Examiners, 57 Tex.Civ.App. 93, 122 S.W. 446 (1909, wr. ref.); Berry v. State, 135 S.W. 631 (C.C.A.1911, wr. ref.) : cf. Texas State Board of Medical Examiners v. Koepsel, 159 Tex. 479, 322 S.W.2d 609 (1959). . Acts 1939, Ch. 3, p. 352. . Acts 1953, Ch. 426, p. 1029. . Held invalid as to drug addiction in Ex Parte Rogers, 366 S.W.2d 559.