Case Information
*1 OFFICE OF THE AlTORNEY GENERAL OF TEXAS AUSTIN
Honorable Joe Uwm%hik, Comraiaaioaer
Burew OS Lybar statistltis
fastin, Taxa
Dear sir;
Zion preecsn?ml ta on the above %ubj% mp5rt- raonrlal samlae meat of n* 86 in your letor, the
b‘r ~tQ)r66Of&6biY66 Of ome with u% %n& I&?. Collln% qh6 parsennel :iarvlo% Dep%rtment a% #ndueted by ths ~0~ton ~,mse has been in the nature or nn adjunot to the an- -&,ayasnt wcrat-sd dofwm of the cla%%lil%d edrartlafng seation or said paper, and h%% been wder th% %up%rvi%ion of I&i%% LO- who hes notod aa lntemmdlery brtween phOlpeCtiTs mater, aa- Persam ~seeking employment it.tteP-rlaw plO$W% 6nd hXll~h~~6B. personal MISS Lemaerter who au&o% a TeoordCI the qualifiaatloo%, feferemes, age, habit%, et%, %$ the applicraat. F'or a %h%rg% *2 Honorable Joe X'uusahik, page
of Two ($2.00)'Dollars, the appliaant, is entitled to a fitteen word advertisement for aeven aonseautive lnaertlone in the WWork wanted" bolumn of the classified advertisement seation of the newspaper. The regular advertising rate f'or suoh an insertion is Two Dollar% and Seventy Cents (Q2.70), the Two (?\2.00) Dollar rate being a speaial oonaeselon for employment applicant%. The advertisement doe% not state the name, ad- dress or telephone number of the a,?plicant but the prospective employer is direoted to contact Miss Lemaeter so that ahe may to him a aeleated list of appllaants whose qualifloa- submit tions she believes to be peculiarly %uited~ to the partloular I;~sition. TM% Work wanted" aolumg contains the $ollaw~g caption:
"BBLOYERS, Call .the press psrsoxUlel Servioe Department When you require the I services of trained office workers, teoh- nicians, meahanios, mafds, yard-men., etci You can oho%%s.from over three thou%and ap- plication%. Just phone Us% ~ema%t8mr,.t ~~., _ ' F. lllli and ~atate ~your requirem%nt.% ,'~ We are &tber advised that'in the oase'6i partiaular- ly worthy but idpeouuious~ Job, applioents their advertiisements vii11 be inserted withogt'oharge a% well as the~reoomendations and services'of Hisa &ema%ter. ,,. ': . .
It would appear that the Fersonnel Servioe.Department or the zou%ton.~res% differs from the ouatomary conduat of 8m- ployment Want-ad% only in the additional,service rendered by .' Miss LemaSt8r to~~both the prospeotlv8 emplopeers~ and employers.
In view of the liberel~z&ado&ed by .the Texas Courts in construing the implied and incidental powers of corporation%, we are not prepared to state that the'Houst,on I;ress, Company may not under the above quoted purpose clause of its ohorter conduct a wP8rSonnel SerViOe Department v in aonjunction with its classl- fied advertisement%. ~8 stated in 12 Texas R8VieW 102; ,r
"In Texss the rule is more often stated that implied powers embrace those that are usual and customary in the particular business. Recognizing this rule~the Commission.of Appeals said: *iThat ia the usual and customary method of operating the business is essentially a ques- tion of fact, for,such custom and usage change \ with time.* Kascb v. Farmers Gin Company, '3 S.W.
(2d) 72..
Eonoroble Joe Eunschik, page 3
It is to be noted that krtiole 1302 RSvised Civil
Statutes -of Tpxas, whioh contains en enumerat on i of the varl- ous purposes tor which corporations may be ohhrtered in Texas, contains no provision authorizing a oorporation to be organized for the purpose of conducting an euployaent ag+vuOy. Such ao- tivity Woonductad by a corporation flust be by way or Incidental ar collateral business is conjuuotlon with its primry oorporate FUpO8e.
The business ofconductim employment agenOie8 in
Texas are regulated by Chapter l.3, Title G5,.Artieles 5208 through 5221, Revised Civil statutes of Texas, 1925, and by Chapter 7, Titls 18, srticle 15B16:th~ougl.l593, Fezal Code of *Texas, iY25. krticle 5208, Revised Civil Statutee, and Artiole 1584,. FenalCode define the tern *employnent agent* in the fol- lowing identical language;
**tiploysxent agaat* meana everp person, firm, cartnership or association of yersonseagaged in the business'ot ~~~istiug employers to seoure m- ployees and permms to secure employiacnt..oE'.of collecting ikformation regarding ern_oloyers seek- ing emp%oyee8 end persons soe&ing es$oyment. The tom *employptlnt otSice@ tneans every plaae or office rhere.the business of giving iutolligenoe _ or Wormation where eaqloyztent or help may be obtained or where the bua:nees of an~eqloy;nent agent 18 oarried cm,*
while the above dsrlnition of "en.qloylr.ent agsnta doe8 not use the Wrd floor~oratiou* we call attention to the statu- tory rule of ~construotlan of the word *person- announced by drticle 23, Revised Civil 3tatatco of Texss, which reads in part aa follows:
*The following meaning shall be given to eaoh of the following worda, unless a different meaning is apparent from t~he corAe~~:
". . .
w2. Qersont in~cludea I=. oar~oration.W a- tb,?t. tb.e reasons which \:fhen wo further consid...,. must have prompted the enactment of the statutes regulating employment agents, I. 8. the ,votection of the public, apply *4 . .
z:onorable Joe Kunachik, Page 4
with equal force to individuals and to corporations, we reach tiie concluslaa that a corporation, when donducting an employ- .?ent agency a8 an incident to its prltiry corporate purpoae, to the regulation and is required to obtain is Itxcenable a license, in the sane mauner'as an employzient agency operated by fm individual or 81 partnership. This construction is fcrther fOrtItled by the fact that the exoeptiona provided iii the aOt, hereafter quoted and diSQus8ed expressly refer to cor~orationsi .It Vrould have heen unnecessary to mention corporations in the exceptions, had th8y not been intended to be embraoed in the soopti of the act.
Artiole 5209, Revised Civil Statutes, and Vtiole
1555,.Penal Code, set out the exceptions ta,the amployment axency law in the following language:
WThe provisions of this chapter shall not apply to agents who oharge a'fee of' not more than ,twedoU.ars for'.registration only for pro- curi.3.g employment for echoal teachers; nor to any department or bureau maintained by this the wited states Government, or any Sate, aunici~al government of this state, nor to any person, firm, partnership, association of person8 or oorporatlon or any offioer, or empJ.oyae thereof engaged in obtaining or soliciting help from him,~ them or it when no feesare,charged directly or indirectly the applioant for help or the applicant for employm&at;-nor to Iarmers enn~d stockraisers acting jointly or severally in securing laborers for their own use where no fee is collected or charged directly or indlreotly, nor to any assoclstion or corporation charter- ed under the laws of TeXa8 conducting a free employment bureau or agencp.n Fe do not believe thot the business carried on by ~:.iss"&3aater as tbe Fersonnel !zerviae aenartment of the Bouston i-ress falls within any of the exoertione contained in tb.e fore- g.oinc, article. me exception for reagents v2-.o oharge a fee of rrot 3ore than Two (@.CO) Dollars for registration only for pro- cur&; emylogment of school teachers n would clcerly not ar;ply to agents who are SngaFed In 0btainin.q employment for r;ersonS other than school teachers. Ihe fact that the applicant for ercpL,g!zent to the leraonnel~ Service ‘jepartment is required to *5 . [ ‘---.. :’ ! i*
/- ::onorabls Joe kunschik, Fege 3 ?
cay Two ($2.00) Dollars ior the insertion of M advertl5ement in the Iioufxton Press as a prerequisite to the service offered by said department (In the absence of showing of absolute in- Ybility to pay such Two ($12.00) Dollar oharge) constitutel4, KB believe, a fee for the service of the Yer~onnel.3errice De- r;?rtment so'thet t&s exaeptlon provided %%en no fees are charg- od directly or indirectlya oould not be applicable to the situa- tion here under consideration. #e are persuaded that the Houston Zress Company has been aattmted by salutary and benevalent mo- tives in establishing the Personnel service Department under the super~lsion~of ?bise Lamaster in order to be of real servloe :nd benefit to both employees~aeeking employment and~employers seeking pereona to fill vaaanoiea in their businesses, but nevertheless such Personnel Bervlae Department does aonstitute m employment agency within the terms ,of the statutes and oon- sequently must-be required to aonforxa to the provisions of the regulatory laws. ] I , : It ia therefore our 0 inion that the Boustoa Preae , .: Company should be required to '0 ii tain a liaewze as an employ- .nant agent as oontemplated by the above mentioned statutes.
Yours very truly ATl'GRlwyGESBRALOPTEXA3 i7f: eaw
APPROVED= 21, 1941