                           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 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 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:
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                                                        BY
                                                             Assistant
