December 23, 1948 

Hon. M. H. Crabb, M. D. 

Secretary 

Board of Medical. Examiners 

Fort Worth, Texas 

Opinion AO.~ v-754. 

Dear Sir: 

Re: The procedure to be:fol&zwed to 

revoke thB medical license of 

one aeportea~to Germ+ f&lowing cancellation of citizenship 

for conspiracy to violate the 

Espionage Aot. 

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 convicted 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- 

-Yo% of Medical Examiners Gotea, 

On November 12 1947 the Tetixazxiy;;te 

tive seasion, to institute proceedings to revoke 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 eircumstahces - ’state a eve, can the District Attorneg institute proceedin& against Wolfgang 

Ebell for the revocation of his license to practice 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 lItense 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 authority to revoke, cancel or suspend the licensejof any practitioner of medicine is given.only~ to the district courts 

of this state by ArtIole 4506, R. C. S., such article making It “the duty of the several District and County attor- 

.neys of this State to file ana prosecute appropriate juaicial 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 judicial proaeeaings for revoaation, we think your first question should be answered In the affirmative. 

Article 4507, R. C. S., provides that in such 

judicial proceedings citation shall be issued “in the manner 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 defendant.~is unknown or that an attempt has .been 

made to procure service of non-resident notice." 

case 

The applicability of this' rule In the present 

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 disoussing 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 frequently 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 Examiners v. Hedriok, 116 W. Va. 222, 179 S. E; 009 (1935) involved 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; 

fl 1;. 

subject Actions, 8.171; 1R.~ C.' L,Id. 

'+he defendant res.Iaed'in Ohi'o. Personal service on a nonresident is not requisite 

to~jurIsdictI~n in an In rem proceeding.., (Citations) 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 aefenaant herein by publication. . . .O 

In re Craven, 178 La. 372 

Drooeed L 

151 So. 90 A.L.R. 

973 (1931) 

625, 

was .a disbarment R In which the attorney 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 result 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'accused; 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 subjecting 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 Atl. 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 department of health and the subeequent proceeaings terminated in a judgment which was in efSe& 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 pere 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 Germany 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 dottor with notice or citation to appear and 

show 6ause why his license should not be revokea. Citation by publication, as provided 

in Rule 109, may be made In such suit. Aotlon 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