Untitled Texas Attorney General Opinion ( 1948 )

December 23, 1948
Hon. M. H. Crabb, M. D.
Secretary
Board of Medical. Examiners
Fort Worth, Texas
Opinion AO.~ v-754.
Re: The procedure to be:fol&zwed to
revoke thB medical license of
one aeportea~to Germ+ f&low-
ing cancellation of citizenship
for conspiracy to violate the
Espionage Aot.
Dear Sir:
Your request for an opinion from this qffipe
upon the above titled subject matte? contains the fol-
- lqiiing:
"In 1930 Dr.
of the University
icine, Germany was granted a license.to
practice medi&e id the State of Texas by
written examination. In 1942 he was convict-
ed of coqspiring to violate the Espionage Act
of 1911, etci, and'haa his citkzenship papers
oancelled in El Paso Federal Court, Case No.
165, Civil Action on April 2, 1942. He was
confined to a Correction Institution from
1942 uutil 1947 when he was aeportea to Ger-
On November 12 1947 the Tetixazxiy;;te
-Yo% of Medical Examiners Gotea,
tive seasion, to institute proceedings to re-
voke the license of Dr. Wolfgang Ebell. A
request has been made of the District Attorney
of El Paso for revocation Of the license of
Wolfgang Ebell due to his dishonorable aonduct
and deportation. The District Attorney has
raised the question of whether'or not Wolfgang
Ebell can be cited by publication or must he
be cited in person as set out in Article 4507,
R. c. s.
Hon. M, II. Crabb - Page 2 (V-754)
* uestion No 1. Under the facts and eir-
cumstahces’
- state a eve, can the District Attor-
neg institute proceedin& against Wolfgang
Ebell for the revocation of his license to prac-
tice medicine in the State of Texas when the
Texas State Board of Medical Examiners has not
cited him to appear and show cause why his lI-
tense should not be revoked?
* uestion No 2. Under the oircumstances
stated-e District Attorney cite
Wolfgang Ebeil by citation by publication? Or
must-he-be cited- by citation- ti person as stated
in Article 4507, R. C. S.7”
Although under Article 4505, R. C. S., the State
Board of Medical Examiners has the authority to “refuse to
admit persons to its examinations, land to issue license
,to practice medicine to any person,” there is no authority
In the board to revoke or canoe1 such license. The author-
ity to revoke, cancel or suspend the licensejof any prac-
titioner of medicine is given.only~ to the district courts
of this state by ArtIole 4506, R. C. S., such article mak-
ing It “the duty of the several District and County attor-
.neys of this State to file ana prosecute appropriate juai-
cial proaeedings for such revocation; cancellation, or .
suspension, in the name of the State, on request of the
Board of Meaical Exadners.“, The statutes do not provide
for any hearing before the.boara, nor do we think that due
process requires a hearing before the board can request
~.that a suit be brought to revoke a license, there being no
power of revocation in the board itself. No hearing being
required by the statutes or otherwise before the board
takes this preliminary step toward the institution of judi-
cial proaeeaings for revoaation, we think your first ques-
tion should be answered In the affirmative.
Article 4507, R. C. S., provides that in such
judicial proceedings citation shall be issued “in the man-
ner and form as In other oases.” Rule 109 of the Rules of
Civil Procedure provides:
“Where a party to a suit,, his agent’or
attorney, shall make oath that the residence
of any party defendant is unknown to affiant
. . . the Clerk shall issue oitation for such
Eon. M. H. Crabb - Page 3 (V-754)
defendant for service by publication . ., .
provided, however, that where the affidavit
shows that the defendant Is not within the
continental United States, ana,is not in,th0 ~-:
Armed Foroes of the United States, It ,s,hall'
not be necessary for the party to show that
the residence or whereabouts of the defend-
ant.~is unknown or that an attempt has .been
made to procure service of non-resident no-
tice."
The applicability of this' rule In the present
case involves the question of the.nature.of~ a proceeding
to revoke a physician's license, that Is, whether It be
one in personam or in rem or quasi in rem. If'it be one
In personam then personal service is necessary, but "In
suits In rem or quasi In rem, personal service is not
necessary and may be constitutionally dispensed with,
ana constructive service ~by publication may be made if
authorized by statute." 126 A. L. R. 664. .In disouss-
ing suits.,In rem or quasi in rem, the annotator.~in'l26
A. L:R. 664, 666 says:
Quits quasi in rem . . . are p.ersonal
in forni G that the owner's personal rights ,,~
In the property are affected by the deoree;.
but as the judgment dperates on the property
itself, and merely incidentally affects the
personal rights of the Qwner; such suits are :~
regarded in effect as in rem and are fre-
quently designated a8 quasi In rem."
Although there are few cases on the subjeot, it
is.gen&ally held that a proceedidg to revoke a license of
,thIs kind is a proceeding in rem. Board of Dental Exam-
iners v. Hedriok, 116 W. Va. 222, 179 S. E; 009 (1935) in-
volved the revocation of's license to practice dentistry:
In discussing the nature of such a proceeding, the court.'
said: :.
"This proceeding is, in effeCt,,one in
State v. Richer&on, 108 Corm. 45 142
T;O;; Freeman on Judgments (5t,h Ed.) & 1534;
subject Actions, 8.171; 1R.~ C.' L,Id.
fl 1;. '+he defendant res.Iaed'in Ohi'o. Person-
al service on a nonresident is not requisite
to~jurIsdictI~n in an In rem proceeding.., (Cita-
tions) Coae,.'30-l-8, proviaes'that notice.
. ,
Hon. M. H. Crabb - Page 4 (V-754)
shall be~served on a defendant In such case8
as a notice Is served under Code 56-2-l. ~The
latter statute relates to personal service.
Code, 56-2-2, provides, however, that *any '~
such notice' to a person not residing In this
state may be served by publication, etc. The
two statutes being read togetherjspeoifiaally
authorize the servioe of notice on the aefena-
ant herein by publication. . . .O
In re Craven, 178 La. 372 151 So. 625, 90 A.L.R.
973 (1931) was .a disbarment Drooeed L R In which the attor-
ney excepted on the grouna~that the jiidgment sought against
the accused was a personal one and could not be based on
substituted process. The court said:
"The judgment herein sought ~againstithe
accused is not a personal judgment, buta judg-
~meht In rem; A judgment In personam can re-
sult only from some personal obligation which
follows the person wherever he may be and may,
be enforced wherever he may be found. But the
preserit proceedings do not seek to enforce any
personal~ob,ligation on the part of the'accus-
ed; their only purpose is to declare his status
as an officer of courts of this state.
"Of that status the oourts of this state
alone have jurIsdictioni and yet it may be (end
in this ease is) essential to pass upon'that
status.
"Hence, If the courts of this state alone
have jurisdiction of the subject-!lsttsr, to-wit,
the status of the accused as a member of the
bar of this state, and it becomes necessary to
pass on that status, it -follows t!lat the courts
of this state must have some method of subject-
ing him to their jurisaIction; and, since that
cannot be done by.personal service, it follows
that substituted service may 'be resorted to."
State v. Richardson,. 108 Conn. 71, 142 A. 406
(19.B) was a cz~e In which a license to,practice medicine
was revoked. There the court said:
"The revocation of his lioense by the de-
partment of health and the subeequent proceea-
ings terminated in a judgment which was in ef-
Se& one in rem and establIshed his status 8s~
” . .
;
Hon. M. H. Crabb - Pages 5 (V-754)
one not entitled to practice medicine in the
state 0s Conneoticut.w
It is said in 1 Am. Jur,. 435-437, Sec. 45:
"A proceeding In rem is'not Confined to
the status of things, but extends to the status
of inaiviauals and their relations to others.
Proceedings in rem include . . . a proceeaing
to revoke a dentist's license . . . ."
In view of the above, we are of the opinion that
such a proceeding as is here contemplated is a proceeding In
rem, notice of which can be given by publication as provided
in Rule 109. Service thus obtained would give the court
jurisdiction to render a judgment revoking the license for
good cause, but would not authorize the Imposition of a per-
e onal judgment , as for the court costs. Therefore, the
first question In questIon 2 is answered in the affirmative,
and the second question .in question 2 is answered in the neg-
,ative.
S-Y
Where a do&or has been deported to Ger-
many as an undesirable alien, the district
attorney may lawfully institute proceedings
for the revocation of his license on request
of the Board of Medical Examiners, without
the board having personally served such dot-
tor with notice or citation to appear and
show 6ause why his license should not be re-
vokea. Citation by publication, as provided
in Rule 109, may be made In such suit. Ao-
tlon to revoke such lidense is a proceeding
in rem, and citation by publi~cation satisfies.
the requirements of due process .of law.
Yours very truly
ATTORNEY
oENl!& OF TEXAS
Bv
JPL:
OS:wb
BY
Assistant