dissenting.
I cannot agree that the procedure employed in this case by the Texas Optometry Board was so unfair as to be a denial of due process of law. Accordingly, I dissent.
The relevant facts are undisputed and are accurately set forth in the majority opinion, with the exception of certain omissions. The evidence also shows that the Board had no investigators employed in the Dallas-Fort Worth area and that the subcommittee on malpractice, of which Dr. Bowen and Dr. Friedman were members, had received many complaints concerning appellant. Accordingly, while at a meeting in Dallas, Dr. Bowen and Dr. Friedman decided to investigate the complaints previously made to the Board.
The crucial question presented is whether due process of law was violated because Drs. Bowen and Friedman, two board members, investigated appellant and later testified against him before the Board, although both recused themselves from the Board’s decision. The majority holds that to have members of the Board appear as witnesses is fundamentally unfair, particularly where the credibility of the Board member witnesses was crucial to the Board’s decision. With this I cannot agree. Although the majority states that presumably all members of the Board acted in good faith, implicit in its holding is the fact that the Board could not act in good faith because the two witnesses were also Board members. I see no fundamental unfairness here since neither Board member participated in the Board’s decision.
The holding of the majority extends due process far beyond any precedent. In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), a unanimous Supreme Court held that the combination of investigative and adjudicative functions in an administrative agency, without more, does not violate due process. The Supreme Court noted that to show a denial of due process, absent circumstances not present here, is a difficult matter to establish. For example, the Court observed that the proponent must overcome a presumption that the adjudicators acted honestly and with integrity. Additionally, according to the Supreme Court, the proponent “must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Id. at 47, 95 S.Ct. at 1464.
Applying these stringent requirements to the facts here demonstrates that appellant was not denied due process by the Board. Both Dr. Bowen and Dr. Friedman abstained from voting to reprimand appellant and thus, neither were adjudicators. The majority concludes, however, that because Dr. Bowen and Dr. Friedman were Board members as well as witnesses, the remaining Board members could not render a fair decision. This of course is contrary to the presumption enunciated in Withrow that the voting Board members are presumed to act honestly and with integrity. Indeed, the majority in order to reach its conclusion has applied the opposite presumption that the Board members did not, and could not, act with honesty and integrity. This pre*252sumption is, of course, directly contrary to the Supreme Court’s language in Withrow.
In Withrow, the Supreme Court found no violation of due process where the Wisconsin Board of Medical Examiners acted in both an investigatory and an adjudicatory capacity. The Board in that case conducted the investigation as a whole and then found that there was probable cause for Dr. With-row’s license to be suspended. In that case, the Board members who actually made the investigation also sat as adjudicators on the Board. Here, the investigating Board members merely testified as witnesses but declined to sit as adjudicators. In my view and in the view of the Supreme Court, if an administrative agency’s investigation does not so prejudice them in a subsequent adjudication in the same matter so as to be a denial of due process, there is no inherent denial of due process here. Accordingly, I would hold that appellant has not shown a violation of due process.
The assertion by appellant that the proceedings here before the Board amounted to a deprivation of due process of law was also rejected by a unanimous Supreme Court in Federal Trade Commission v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948). In that case, the Federal Trade Commission had made a prior ex parte investigation of the parties, and based upon that investigation, some members testified before congressional committees concerning the legality of the pricing system of the Cement Institute. Prior to the complaint being filed and prior to a hearing thereon, some of the members of the Commission had disclosed their opinion that the system was illegal. Based upon these facts the Cement Institute contended that it was denied due process because the Board was biased as a result of its prior ex parte investigation. The Supreme Court rejected this argument on the ground that even if the Commission had entertained views adverse to the Cement Institute as a result of the ex parte investigation did not mean that the minds of the Commission members were irrevocably closed on the subject of the legality of the Cement Institute’s pricing practices. The Court reasoned that to hold otherwise would defeat the congressional purposes for enacting the Trade Commission Act because had the entire membership been disqualified because' of the Commission’s prior investigation, the complaint before the Commission could not have been acted upon by the Commission or any other government agency. Id. at 701, 68 S.Ct. at 803.
Applying this rationale to the present case, the holding of the majority frustrates public policy. The Board is charged by the legislature with the responsibility of protecting the public against incompetent and careless practitioners of optometry. Tex. Rev.Civ.Stat.Ann. art. 4552-5.13 (Vernon 1976). By holding that it is a violation of due process for a Board member to investigate a complaint and to testify before the Board seriously hampers this legislative mandate. In my view, Board members have a duty to investigate complaints and to bring these complaints to the Board’s attention, and it is immaterial whether the Board personally conducts the investigations or hires employees to investigate for it. I see no violation of due process in this procedure, even if the Board members who investigated and testified also acted as adjudicators, as in Withrow and Cement Institute. Accordingly, I am compelled to dissent.