Case Information
*1 Honorable M. 0.' Flowers Secretary of State
Austin, Texas Dear Sir : Attention: Mr. Wallace Scott
Opinion No. O-2513 Re: Does the perf&tion of an.appeal as pi+ovided In~Sectlon..15, Article 6573a, Vernon's Annotated Civil Statutes, operate to sui@erid oP supersede the order of dancellafion of a dbaler's license inade"by the Secretary of State at a hearing?
.' Your letter of August 8th, requesting an opinion of this Department, reads as follows:
"In thh early part of 1940 a real estate Galer's license was~'granted by this office to I&."; C. W. East of Amarillo, Texas.. Thereafter, due to cijmplaints recefvea bg"this dffice, the said C.W. East'was notified that a hearing Vith respect to such complaints would be held to determine whettier or not the license previously Issued him should be cancelled.
"Such hearing was held on or about the 13th day of June; 1940 and thereafter an order was entered by this division cancelllng such license. Thereafter,. the said C'. W. East under the provisions of Section 15 filed an appeal in the pistrict Court of Potter County, his home county.
"Assuming that the provisions of the Real Estate Act were properly followed with respect to such hearing and that Mr. East's apPea1 has been duly perfected, this division would appreciate your advice as to whether or not the per- fection bf such appe%il operates to suspenKor supersede the order of cancellatiofi cancellirig Mr:East's license mad& by this department at. such hearing, 6r,~ in bther words, 1~s. the satd, Mr. Eist entitled to operate as a real estates' d&ler'.'under' the kuthbrity givefi hlm~'by ‘such license after' siiizh order of eancellatlon and after an appeal to the court has been perfected ."
Honorable M, 0. Flowers, page 2
The question of suspension of a judgment of the dis-
trfct court is no% before us~'in cbnnection with your request, but"bnljr whether under the facts as stated, thk pe?f&c%ing of tin appeal from~an order of the Secretary of'State suspends'the order-'of revocation entered tinder"the provlsions"of the statute, This as we see"it is solely a qtiestioh of legislative interit, assutifng the valfaity of'the Real Estate Lic'ense Act, Atiticl.9 6573a, VePnon's Civil Statutes, under which act this dealer's license was origfnally granted.
6573, Vernon's Civil Statutes, containing
Article
twehty-two se&for&, provfdes for the licensing of all 'Peal e'state dealers engaged in such buslness'and places the adminis- trative dutle's of enforcing the provIsIons thereof in the office of the SecretaPg of-'State thrbugh its administratlve office* created by the act and known as the AdmlnYstrator 'bf the Securl- ties Division of the Office of the Secretary of State.
Sectfon 5* Subdivision (c) of the law provide3: "The Admfnistrator of the Securities-Division 1s~' hereby empowereil to examine wItnesseD and adminlstep oaths, and ff shall be hfs duty to investigate persons~doing bc,sin&ss in real estate in this State to ascertain whether they ape violating any of the pyovlkions of this"Act and to keep such yecords and minutes as shall be necessary to an orderly dispa%ch of business."
Section 11, SubdivisIons (1 - 17) set forth the grounds upon Which t,ke license of a person within the provisions of the act may be suspended, revoked or the reriewal thereof refused.
It fur',ther provides that no action, of the act shall be construe5 to Pelieve aE.y pel:sori tire company from civfl liability or criminal prosecution under We 8ct or untier the laws of the State.
., SectfoEs 12 and 1 pl-ovfde for notice and hearing oti charges presented t,o revoke or suspend a license, a% which hear- ihg witnesses may be s,ubpoenaed and a~ record is required to be made of tbefp swo~rt testimony and of the proceedings. l
Section 15, APtfcle 6573a of said statutes, provides: "(ala Any rear'estate dealer, real estate salesman, owner, 'or‘ subdiH.der'aggrieved by any decision or the Secretary of State tiy file wi%hin thirty (30) days there- after in the Diktrict Court iki the boun%y wherb his prfncl- pal pletce of btitifness is situated, a petitlofi against the of"S%ate officially as defendatit, alleging Uiiereln Secretary Ln bbief letafl the action and detilsfon complafned 6f and for an order dfyec%.ing the SecPetaPg of State to license the *3 Honorable M. 0. Flowers, page 3
a'pplicant or grant an owner or subdivider a permit, as the case inay be. Upbn service of the sumnibns upon the Secretary of State, returnable within ten (10) days from XtsKdate, the Secretary of Stat& shall on or before the return day file an answer. The case shall be tried in the District Court de novo, upon its' m6rlts.
"(b) . The District Court may, upon Bpplicatloti'of either party and upon due notice given, advance the c&se tin the socket. Frbm the decision of the District-'Court, an appeal may be taken to the Court of Civil Appeals by either party, as in other cases; and no bond shall b@' required by the Secretary of; Sttite. A judginent in ftivor '.' of the plaintiff shall,not'~bar after one gear a'new applica- tion"'by the plaintiff for a license, nor shall a judgiiient in favor of the plaintiff prevent the Secreta+g of State from"thereafter revoking or refusing to lidensezsuch person for any proper cause which may thereafter accrue or be dfs- covered. The court'shall have full power to dispose of all costs #"
Section 21, Article 6573a of the statutes, provides: "(a) Any pers'bn,?.'or agent,',officGr, or employee bf any coinpany, acting as a real estate dealer or real estate sixlesman within the meaning of this AEt, without first having been licensed by the Admlnisttiator of the-securities DlvIsion 6f the office of the Secretary" of,State, and every officer, agent, or employee of any company, and every other person~who knbwlngly'authorizes, directs, or aids ih the publication, aclvertisement, alstribution, or circulatlbn of any false statement or repre&entation~conc&rnlng any land OF subdivision offered,for sale or lease, Andy every person who, with knowledge that any .adver%lsement, pamphlet, prospectus, or letter concerning tiny land or subdivision contains any written statement that Is false or fraudulent issues, circulates, publishes, OF distributes the same, or shall cause the same to be issued, circulated, published, or distributed, or who, in any other respect, wilfully violates OP fails to comply with any provisions of this Act, or:who in any other respect wllfully violates 01" fails, omits OP neglects to obey, observe or comply with any order, permit, decision, demand, or requirement of the Admlnistrtitor of the Securities Division of the office of~the Secretary of State under this Act as herein provided, shall upon conVIction therefor be bentenced to pay a fine df'not more than Five Hundred Dollars ($500) or .Fmprison- tiefit ln'the county jail for not more than one year or both such fine and imprisonment."
- .
Bonorable M. 0. Flowers, page 4
It is provided in Section 17 of the act that'all
licenses issued shall 'expire December 31 of each year at mld- t-iight, and that applications for renewal of licenses may be made between November 15 and December 31.
Actssimilar %o that of the Real Estate DealersAct
under consideration, granting to State Boardsor Departments jurisdiction of violationsof its provisions.'for the purpose of enforcing the publ.ic health and welfare have been upheld by the courts. :If the Legislature in its wisdom finds evils prevalent and existing in the business of those engaged in real estate transactions in theirdealings with the publicto the extent of enacting such Iaws~as may be necessary to proper regulation and con%r01,~ It can hardly be questibned that It is a valid exercise of the police powers of the State,
1% is generally conceded that the right and power to grant a license to exercise a particular vocation implies-and includes the authority to suspend or revoke It, And i%"has been held that a person accepting a license from the State -' lmpliedlg agrees to scbmi,s to ,%he tribunals created by the State todetermine his fitness %o continue enjoying the privilege granted o See Marx v. Matthews, 270 S-W. 586.
Proceedings of this nature, have been held by our
coutits as not being "judicial" but quasi-judicial as applied to an act of an executive officer who, in the exercise of his func- tions, is required to pass upon facts, and'to determine his action by the facts found. I% is also apparent that a license issued to a dealer on %he' payment of the sum required under the provisions of the Real Es&'i:e Dealers Act is in the nature of a special privilege required as a condition precedent to the" right to carry on his busin~ess, and was not either a contract or a vested ~igbt to do business. See 17 R. C, L, page 476, par. 5; Prater et al, v, Storey, 249 S.W. 871; Baldacchi v. Goodlet, 1% SOW. 325.
Ttie province OP Section 15 of the act Is to afford an aggrieved dealer or person who has had his license ,revoked, a remedy for judicially dete:rmlningthe correctness. of the order finding him guil%,y of having violated the law.' If he is permitted to pursue the occupation until the case is finally determined upon Its merits, it would amount to a nullification af the duly authorized and exercised func%lons of the Secretary of State.
The true purpose and effectiveness of the law could easily be defeated by one who has had his license revoked, by filing his petition within the thirty day period and thereafter fail to prosecute his appeal.
After a person's license has been duly revoked under
Honorable M. 0. Flowers, page 5
this law, it Is clear that the law : places e burden upon the petitibner to brtng the matter up for review endnot upon the Secretary of State. It will be seen that the statute makes it possible for him to file hiss petitlon'the next day; it author- izes summons upon the"Secretarg of'State;'returnable within ten days thereafter~; end he may further, at the"'tlme of fllri'ig his petition, make eppllcetlon to advance the case in the Dls-.
trict C'ourt. Such procedure specifically authorized by Sec. 15 of the act, with other provisions thereof"'expressly denying relief from criminal prosecution for any acts committed there- under, evidences an intent on the~pert of the.'Legislature to " deny petitioner the' right to operate pending a.'judicial review.
We are convinced"~'that the.remedy accorded the aggrieved dealer was so intended ana should not operate unjustly to delay the '.
hearing of his case provided he pursues the remedy with diligence. _.
It 1.9, therefore, the opinion of this Department that the timely filing of a petition against the Secretary of State un- der the provisions of Section 15, Article 6573a, by en aggrieved dealer to"revlew the facts upon which an order revoking his license has been duly made, does notof Itself operate to sus- pend or supersede the order of revocation.
Yours very truly, ATTORNEY GENERAL OF TEXAS By s/wm. J. R. KMg Wm. J. 'R. King Assistant WJRK:AMM:wc
APPROVED AUG 27, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman