Texas State Board of Pharmacy v. Martin , 1961 Tex. App. LEXIS 1731 ( 1961 )

GRAY, Justice.

Appellee, George Clinton Martin, sued the Texas State Board of Pharmacy and its individual members in their official capacities for injunctive relief. He alleged that on March 28, 1950 the Board issued him a license to practice pharmacy in this State; that annually thereafter he paid the statutory fee for a renewal license and that the Board issued annual renewal licenses to him the last of which was issued for the year 1959. He alleged that on December 29, 1959 he tendered to the Board a United States Postal Money Order for the sum of $10 as payment of his renewal fee together with the required affidavit, and that the Board refused to issue him a renewal license for the year 1960 “even though he has fulfilled all statutory requirements for the issuance of a renewal license.” He prayed for a mandatory injunction requiring the Board to issue him a renewal of his license for the year 1960.

The Board answered by special exception, by special and general denials. The Board admitted receipt of the $10 renewal fee and the affidavit and its refusal to issue the renewal license. The Board alleged that by letter dated January 7, 1960 it advised ap-pellee that it was not authorized to issue him a renewal license for the reason that.-

“An examination of the files in this office of George Clinton Martin reveals that he does not possess the minimum statutory qualifications for the issuance of a renewal license by the Texas State Board of Pharmacy, in that our records do not reveal that George Clinton Martin has attended and graduated from a reputable university, school or college of pharmacy which meets with the requirements of the Texas State Board of Pharmacy.”

A trial was had. A judgment granting appellee the relief prayed for was rendered and the Board has appealed from that judgment.

Appellant, the Board, here presents three points. These are to the effect that the trial court erred in rendering the judgment supra because: the judgment in effect requires the Board to issue a renewal license to one who does not possess the minimum statutory qualifications; it was error to hold that the allegations of appellant concerning the minimum statutory qualifications for the issuance of a pharmacy license to appellee were decided adversely to appellant in Cause No. C-2550 in the district court of Hidalgo county, and it was error to require the Board to issue a 1960 renewal license to appellee because he failed to plead or prove that he possessed the minimum statutory qualifications for a license to practice pharmacy in Texas.

The facts show that prior to 1950 appellee was a resident of the State of New Mexico and was licensed to practice pharmacy in that State; that in 1950 the Board issued him a license to practice pharmacy in Texas, and that since that time the license has been timely renewed for each year until 1960 — ■ the year in controversy here. The facts also show that appellee timely tendered to the Board the statutory fee and affidavit for a renewal of his license for the year 1960 and that the Board refused to issue the renewal for the reasons stated in its letter supra. Also it is shown that in November, 1958 the Board held a hearing based on allegations that appellee had violated Sec. 12(b) of Art. 4542a, Vernon’s Ann.Civ.St., and had cancelled appellee’s license. Appellee appealed from that order to the district court of Hidalgo county which appeal was docketed as Cause No. C-2550 in that court. On May 14, 1959 the order of the Board was set aside and the Board was permanently enjoined from attempting to enforce it. The Board gave notice of appeal from the judgment and on December 30, 1959 the Court of Civil Appeals (San Antonio) sent notice to the parties that the above judgment was on that day affirmed on certificate.

Art. 4542a, Vernon’s Ann.Civ.St., vests in the Texas State Board of Pharmacy the authority to administer the law governing the practice of pharmacy in this State. It vests in the Board authority to examine applicants for a license to practice pharmacy in this State, provides qualifications for applicants for license, provides that applicants passing the examination shall be registered by the Board as possessing the required qualifications and who shall receive a license from the Board to practice pharmacy in this State and

“ * * * Provided that the State Board of Pharmacy may, in its discretion, upon the payment of Fifty Dollars ($50), grant a license to practice pharmacy to persons who furnish proof that they have been registered as such in some other state or territory, and that they are of good moral character, provided that such other Board in its examination required the same general degree of fitness required by this State, and grants the same reciprocal privileges to pharmacists of this State.”

The section further provides that a license shall not be received by any person who is a member of or is affiliated with the communist party or with any group that believes in the overthrow of the United States Government by any illegal means.

Section 12 of Art. 4542a supra in part provides:

“Sec. 12. The State Board of Pharmacy may in its discretion refuse to issue a license to any applicant, and may cancel, revoke, or suspend the operation of any license by it granted for any of the following reasons:

* * * * * *

“(b) That said applicant or licensee is guilty of any fraud, deceit, or misrepresentation in the practice of pharmacy or in his seeking admission to such practice; * * * ”

Section 14 of the above statute provides:

“Sec. 14. (a) On or before the first day of each year every licensed pharmacist in this State shall pay to the Secretary of the State Board of Pharmacy an annual renewal fee of Ten Dollars ($10) for the renewal of his license to practice pharmacy for the current year. On receipt of said renewal fee, the Board shall issue an annual renewal certificate bearing the number of the license, the year for which renewed and other information for the records of the Board which said Board may deem necessary. When a pharmacist shall have failed to pay his annual renewal fee before March 1st of each year, said license shall be suspended, and such person in order to be reinstated shall be required to pay one (1) annual renewal fee as a penalty, in addition to the sum of all fees such person may be in arrears. Said renewal fee shall be due on January 1st of each year, and shall become delinquent on March 1st of each year.”

Section 14 makes no provision for any notice or hearing but provides that “every licensed pharmacist in this State shall pay * * and further that

“On receipt of said renewal fee, the Board shall issue an annual renewal certificate bearing the number of the license, the year for which renewed and other information for the records of the Board which said Board may deem necessary.”

Appellant Board here seeks to uphold its refusal to renew appellee’s license under the provisions of Sec. 12(b) supra, or specifically because appellee does not possess the required qualifications to receive a license in this State. The applicable provisions of the statute (Sec. 12) to' this question provides for a hearing by the Board after ten days notice with the right of appeal by the party whose license has been refused, cancelled, revoked or suspended. It does not apply to the renewal of the license of a “licensed pharmacist,” (Sec. 14) the Board being given discretion in the former but not in the latter.

The issue as to cancellation of appellee’s license under Sec. 12(b) supra, for the reasons there alleged was settled adversely to appellant by the judgment in Cause No. C-2550 which judgment became final in 1959. Therefore at the time he tendered his fee and affidavit appellee was a “licensed pharmacist” and entitled upon payment of the required fee and filing affidavit to receive a renewal for the year 1960.

As already stated section 14 makes no provision for notice for hearing. None was had. In fact the only notice appellee had was the letter supra which advised him that a renewal of his license was refused. To give the Board authority to act as it has in this instance would render such action unconstitutional and void as a violation of due process. Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530. Er. ref. As is shown supra appellee, in applying for a renewal of his license, met all statutory requirements. When he did this the Board did not have authority, by ex parte proceedings, to deny the renewal. Murphy v. Mittelstadt, 145 Tex. 451, 199 S.W.2d 478.

In this proceeding appellee was not required to plead and prove that he possessed the statutory requirements for the issuance of a license to practice pharmacy in this State. He was seeking a renewal of his license and it was only necessary for him to meet the statutory requirements for such renewal.

While the conclusion that the judgment in Cause C-2SS0 decided the allegations as to the minimum statutory qualifications possessed by appellee for a pharmacist’s license were decided adversely to appellant in that cause, as those matters were put in issue in that cause, appears inescapable, that matter is not necessary to our decision here. The proceedings here concern the renewal of an existing license and not the issuance of a license.

It is our opinion that because appellee, at the time he tendered the fee and affidavit to the Board, was a licensed pharmacist the Board was required to issue to him a renewal license for the year 1960. Such renewal however does not bar the Board from proceeding under section 12, supra, except insofar only as Cause No. C-25S0 adjudicated the matters there in controversy.

The judgment of the trial court is affirmed.

Affirmed.