The principal subject matter of this suit constitutes an attack upon the constitutionality of Article 2615f-2, Vernon's Ann. Texas Revised Civil Statutes (1965), titled Polygraph Examiners Act. Appellant is Praxedis J. Dovalina, who failed the examination required under the named article that is designed to insure that all operators of polygraph equipment in Texas meet minimum standards of competence. Appellees are the members of the Board of Polygraph Examiners, sued individually and as members of the Board. A writ of mandamus was sought requiring the Board to issue a polygraph examiners license to Dovalina, and alternatively that it be permanently enjoined from seeking to enforce the act against him. The case was tried to the court and judgment rendered denying appellant all relief sought.
The first point of error asserts the subject article is void because in violation of the Texas Constitution, Article 1, Section 16, Vernon's Ann.St. In that it impaired the obligation of valid and subsisting contracts held by appellant prior to the passage of the act and in effect at the time of trial.
The testimony shows that prior to the effective date of the Polygraph Examiners Act appellant was polygraphing pre-employees for Blue Morrow Sales, Inc. and making polygraph examinations on a certain number of employees on a monthly basis selected at random from three companies owned by Mr. Marmaduke. The latter service was upon a written contract.
The strict question presented in this point is whether one performing in the profession of a polygraph operator with a polygraphing business such as Dovalina's at the time legislation is enacted may be regulated by legislation requiring minimum standards of competence.
It requires no citation of authorities to say that the legislature can regulate the sales of services of people operating in professional areas such as lawyers, doctors, pharmacists, etc., to the extent of insuring that such people possess the minimum standards of skills required of members of their respective professions. From the testimony in this record, and from common sense, it appears that a polygraph operator passing upon the truth or falsity of those he examines should be required to possess minimum skills in order to detect the presence or absence of deception and those conditions which distort the recording. With respect to the skills that must be possessed by a polygraph examiner it has been textually stated,
In a case involving the questions of the right of the State of Texas to prohibit the use of sweet natural gas for the manufacture of carbon black in the Panhandle field of Texas,
The Travelers' Ins. Co. case cited in the quote just made is one of those cases relied upon by appellant and is distinguished from our case just as it was distinguished in Henderson Co. v. Thompson, supra. The statute there held void involved moratorium legislation directed against the terms of contracts. Here as in Henderson the statute challenged is not directed against any term of any contract and its effect upon contracts is only incidental. See also State v. Missouri, K. & T. Ry. Co. of Texas, 99 Tex. 516, 91 S.W. 214, 5 L.R.A.,N.S., 783 (1906) wherein the Court of Last Resort of Texas held parties to the contract that violated an anti-trust statute could not continue activities that had become illegal by legislative action even though when contractually provided for it was legal.
But appellant contends the regulation of contracts may not be given retroactive effect. The cases he relies upon involved such situations as contracts on which there had been partial performance prior to the challenged legislation, such as recovery for real estate fees for services commenced before a license was required to sell real estate or cases of like import. There is not anything in this record to indicate a contention that appellant would have been prohibited from recovering for polygraph examinations performed prior to the effective date of Article 2615f-2.
Appellees have well stated by brief that if appellant's "* * * means of livelihood is a right of protection against infringement by the Constitution then the means of livelihood of those who are subjected to polygraph examination by him is also protected, and if such people are to be screened from employment on his recommendation, surely the legislature is not prohibited from enacting legislation to insure that such people will not be unfairly judged." The point is overruled.
Appellant's Point 2 attacks the constitutionality of Section 8, the "grandfather" clause of the subject article.
Neither do we consider the citations from other jurisdictions as supporting appellant's contention. For example the Florida Supreme Court case
Appellant's third point contends that Section 18 of the subject act sets forth the grounds upon which the Board may refuse to issue a polygraph license and since failure to pass the examination is not one of the grounds the Board was without authority to refuse a license.
Subsection (7) of Section 18 provides in effect that a license may be refused if the applicant demonstrates unworthiness or incompetence to act as a polygraph examiner as defined by the act. From the record before us the results of the examination taken by applicant clearly demonstrated his incompetence. Additionally: "Each part of the statute is to be considered in connection with the entire enactment, in order to produce a harmonious whole and to reach the true legislative intent." 53 Tex.Jur.2d, Section 160, Statutes, pp. 231-232. "No inflexible rule can be announced for the construction of statutes.
The last point contends there was reversible error in refusing appellant a license because the Board itself was not legally constituted to serve as a Board, to prepare and submit an examination or to grade the examination papers for the reason that they had not passed an examination conducted by the Board, or under its supervision, to determine his competency to obtain a license to practice as an examiner. The statute was passed in 1965, Acts 59th Leg., p. 888, ch. 441 and provided the Board should be appointed by the governor with the advice and consent of the Senate. Section 4(a). The argument under the point contends the Board was not legally constituted to prepare and submit an examination or pass on the answers thereto because under Subdivision (7) of Section 7 a person qualified to receive a license must have passed an examination conducted by the Board. If this is required of the initial Board it is obvious that the governor's appointments and the Senate's confirmation thereof are null and void, as all appointees must have passed an examination conducted by the Board with no Board in existence. Thus, the entire act would be a nullity. There simply would be no way to bring the Board into existence. It would be like trying to bring a chicken or egg into being without the existence of either.
Though analogous to our own case only because it involves statutory construction, the Supreme Court of Texas has held in a case involving the construction of the act providing for workman's compensation for employees of the state highway department
In 53 Tex.Jur.2d, Section 165, p. 243, it is textually stated:
The record shows by at least two members of the Board that different members made up separate areas constituting the examination in question and that each member knew the questions and answers. Though not taking the examination along with appellant and others not on the Board, Captain Wynne testified: "We had already taken it [the examination], as I testified before, several times." Mr. Albert, Chairman of the Board, was trained by the Department of Public Safety examiner and is now supervisor charged with the responsibility of
Considering Article 2615f-2 as a whole, we do not believe the denial of a license to appellant by the Board violated the statutory requirements nor denied him due process of law.
There is at least an inference in the record that Captain Wynne graded appellant's paper and failed him because he is a competitor in Amarillo. Captain Wynne testified he graded the papers without giving any attention to whose they were but did notice when he was partly finished with appellant's paper that it was Mr. Dovalina's, so he handed it to another member of the Board to grade.
Since the case was tried to the court the ordinary presumptions would have to be indulged in favor of the judgment.
Accordingly, the judgment of the trial court is in all things affirmed.