December 23, 1948

Hon. M. H. Crabb, M. D. Secretary Board of Medical. Examiners Fort Worth, Texas Opinion AO.~v-754.

Dear Sir: Re: Theprocedure to be:fol&zwed to revoke thBmedical license of one aeportea~to Germ+ f&lowing cancellation of citizenship for conspiracy to violate the Espionage Aot.

Your request for anopinion from this qffipe upon the above titled subject matte? contains the fol-

- lqiiing: "In 1930Dr.

of the University icine, Germany was granted a license.to practice medi&e id the State of Texas by written examination. In 1942 hewas convicted of coqspiring to violate the Espionage Act of 1911, etci, and'haa his citkzenship papers oancelled in El Paso Federal Court, CaseNo. 165, Civil Action onApril 2, 1942. Hewas confined to a Correction Institution from 1942uutil 1947whenhewas aeportea to Ger- -Yo% of Medical Examiners Gotea,

OnNovember 12 1947 the Tetixazxiy;;te tive seasion, to institute proceedings to revoke the license of Dr. Wolfgang Ebell. A request has been madeof the District Attorney of El Paso for revocation Ofthe license of Wolfgang Ebell due to his dishonorable aonduct anddeportation. TheDistrict 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 andeir- cumstahces’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 whenthe Texas State Board of Medical Examiners has not cited himto appear andshowcause whyhis 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, landto issue license ,to practice medicine to any person,” there is no authority In the board to revoke or canoe1 such license. Theauthority to revoke, cancel or suspend the licensejof anypractitioner of medicine is given.only~ to the district courts of this state byArtIole 4506, R. C. S., such article making It “the duty of the several District and County attor- .neys of this State to file anaprosecute appropriate juaicial proaeedings for such revocation; cancellation, or
. suspension, in the nameof the State, on request of the Board of Meaical Exadners.“, Thestatutes do not provide for anyhearing before the.boara, nor dowethink that due process requires a hearing before the board can request

~. that asuit be brought to revoke a license, there being no power of revocation in the board itself. Nohearing being required by the statutes or otherwise before the board takes this preliminary step toward the institution of judicial proaeeaings for revoaation, wethink 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 109of the Rules of Civil Procedure provides:

“Where a party to a suit,, his agent’or attorney, shall makeoath that the residence of anyparty defendant is unknownto affiant

. . . the Clerk shall issue oitation for suchEon. M. H. Crabb - Page 3 (V-754)

defendant for service bypublication

. ., . provided, however, that where the affidavit shows that the defendant Is not within the continental United States, ana,is not in,th0 ~-: ArmedForoes of the United States, It ,s,hall' not be necessary for the party to showthat the residence or whereabouts of the defendant.~is unknownor that an attempt has.been madeto 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 aphysician's license, that Is, whether It be one in personam or in remor quasi in rem. If'it be one In personam then personal service is necessary, but "In suits In remor quasi In rem, personal service is not necessary andmaybe constitutionally dispensed with, ana constructive service ~bypublication maybemadeif authorized by statute." 126A. L. R. 664. .In disoussing suits.,In remor 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, andmerely 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, 116W.Va. 222, 179S. 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,hEd.) &1534; fl 1;. subject Actions, 8.171; 1R.~ C.'L,Id. '+he defendant res.Iaed'in Ohi'o. Personal service on anonresident is not requisite to~jurIsdictI~n in an In remproceeding.., (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 anotice 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 aperson not residing In this state maybe served by publication, etc. The twostatutes being read togetherjspeoifiaally authorize the servioe of notice on the aefenaant herein bypublication.

. . .O In re Craven, 178La. 372 DrooeedL 151 So. 90A.L.R. 973 (1931) 625,

was.adisbarment RIn which the attorney excepted on the grouna~that the jiidgment sought against the accused was apersonal one and could not be based on substituted process. Thecourt said:

"Thejudgment herein sought ~againstithe accused is not apersonal judgment, buta judg- ~mehtIn rem; Ajudgment In personam can result only from somepersonal obligation which follows the person wherever he maybe andmay, be enforced wherever hemaybe 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 andyet it maybe (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 amemberof 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 somemethod of subjecting himto their jurisaIction; and, since that cannot be done by.personal service, it follows that substituted service may'be resorted to." State v. Richardson,. 108Conn. 71, 142Atl. 406 (19.B) was a cz~e Inwhich a license to,practice medicine was revoked. There the court said:

"The revocation of his lioense by the department of health andthe subeequent proceeaings terminated in ajudgment which was in efSe& one in remandestablIshed his status 8s~”

. .

Hon. M.H. Crabb - Pages5 (V-754) ;

one not entitled to practice medicine in the state 0s Conneoticut.w It is said in 1Am.Jur,. 435-437, Sec. 45: "A proceeding In remis'not Confined to the status of things, but extends to the status of inaiviauals and their relations to others. Proceedings in reminclude

. . . aproceeaing to revoke a dentist's license

. . . ." In view of the above, weare of the opinion that such a proceeding as is here contemplated is aproceeding 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 ajudgment revoking the license for good cause, but would not authorize the Imposition of a pereonal 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

Wherea do&or has been deported to Germanyas anundesirable alien, the district attorney maylawfully 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 show6ause whyhis license should not be revokea. Citation by publication, as provided in Rule 109, maybemadeIn such suit. Aotlon to revoke such lidense is a proceeding in rem, and citation bypubli~cation satisfies. the requirements of due process .of law. Yours very truly ATTORNEY

oENl!& OFTEXAS

Bv

JPL: OS :wb BY Assistant