August 9, 1588
Mr. Richard L. Morgan Opinion No. JM-1084
Commissioner
Texas Department of Labor Re: Authority of the Department
and Standards of Labor and Standards to enter
P. 0. Box 12157 into a settlement agreement which
Austin, Texas 78711 provides for a civil penalty
under article 8700, V.T.C.S., the
auctioneer statute (RQ-1721)
Dear Mr. Morgan:
You ask:
In a contested case under Article 8700,
Section 7(a) and (e), can this administrative
agency enter a settlement agreement pursuant
to Article 6252-13a, Section 13(e) whereby
the Respondent agrees to pay a civil penalty
to the State of Texas in lieu of license
forfeiture or suspension?
Article 8700, V.T.C.S., provides for the regulation of
auctioneers in Texas. Section 3 of the article provides
that no person may act as an auctioneer in Texas unless he
is licensed by the Commissioner of the Texas Department of
Labor and Standards. Section 9 provides that the
commissioner may make reasonable rules and regulations
relating to licensure applications, as well as "the
issuance, denial, suspension, and revocation of licences,
and the conduct of hearings consistent with the provisions
of The Administrative Procedures Act. 'I Section 7 provides
in subsection (a) that the U9commissioner may deny, suspend,
or revoke the licence of any auctioneer" for specified
causes. Subsections (b) through (d) of section 7 provide
that "before denying an application for a license or before
suspending or revoking any license," the commissioner shall
give notice and set the matter for a hearing at which the
applicant or licensee is entitled to be present and offer
evidence. Subsection (e) provides:
The hearing must be conducted in a manner
that will give to the applicant or licensee
due process of law and that is consistent
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Mr. Richard L. Morgan - Page 2 (JM-1084)
with the provisions of the Administrative
Procedure and Texas Register Act (Article
6252-13a, Vernon's Texas Civil Statutes).
The Administrative Procedure and Texas Register Act
(APTRA), V.T.C.S. art. 6252-13a, was enacted to provide
minimum standards of uniform practice and procedure for
state agencies. Id. 5 1. Section 13 provides for hearings
of contested cases, including notice and record keeping
requirements. Subsection (e) of section 13 provides:
Unless precluded by law, informal disposi-
tion may be made of any contested case by
stipulation, agreed settlement, consent
order, or default.
In response to your question, we conclude that subsection
(e) does not expand the authority of the commissioner to
impose sanctions beyond those authorized in article 8700,
V.T.C.S., in a contested case on auctioneer licensure.
Since article 8700 authorizes the commissioner only to
*'deny, suspend, or revoke" licenses, the commissioner has no
authority to impose a civil penalty in lieu of the sanctions
available under article 8700, V.T.C.S.
The language of subsection (e) of section 13 has
appeared in APTRA since its original enactment in 1975 and
is identical with that in section 9, subsection (d), of the
Revised Model State Administrative Procedure Act of 1961.
Acts 1975, 64th Leg., ch. 61, at 140. Numerous other states
have adopted, as part of their administrative procedure
laws, provisions identical or substantially similar to those
of section 13, subsection (e). We find no cases in Texas or
in states having provisions identical or similar to the
provisions of subsection (e) that construe such language as
expanding an agency's authority as to sanctions it may
impose or other actions it may take in a contested case.
The purpose of subsection (e) appears to be purely
procedural, i.e., to allow, where the parties agree, for the
settlement or other informal disposition of contested
matters without the need of formal proceedings. See. e.a.,
Gloss v. Delaware & Hudson Rv. Co., 378 A.2d 507 (Vt. 1977).
SUMMARY
The Commissioner of the Texas Department
of Labor and Standards is not authorized to
impose civil penalties in contested auc-
tioneer licensure cases by the provisions of
either V.T.C.S. article 8700,. Section 7, or
V.T.C.S. article 6252-13a, section 13(e).
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Mr. Richard L. Morgan - Page 3 (JM-1084)
JIM MATTOX
Attorney General of Texas
MARYKELLER
First Assistant Attorney General
LOU MCCRFARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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