Auwrxrw. TXXAS 76711
October 6, 1975
Overruled By JM-399
The Honorable Jackie W. St. Clair Opinion No. H- 708
Commissioner, Texas Department of
Labor and Standards Re: Who is required to be
Box 12 157, Capitol Station licensed as an auctioneer.
Austin, Texas 78711
Dear Commissioner St. Clair:
You have requested our opinion concerning several questions which pertain
to the recently enacted Auctioneer Regulatory Act. Acts 1975, 64th Leg., ch.
320, p. 827 (codified as V. T. C.S. art. 8700). Specifically you ask whether an
auctioneering corporation must be licensed under the Act, and if so, whether
employees, directors, officers, and owners of such corporations must also be
licensed. In addition, you ask whether the license fee may be prorated.
The Act provides in part:
Sec. 1. B. ‘Person’ means an individual, partnership,
company, corporation, association, or other group,
however organized.
. . .
Sec. l.D. ‘Auctioneer’ means any person who, for
another, with or without receiving or collecting a fee,
commission, or other valuable consideration, sells
or offers to sell property at auction.
. . .
Sec. 11. (a) Whoever acts as an auctioneer as defined
in this Act without first obtaining a license commits a
Class B misdemeanor.
Thus, the Act includes corporations within the term auctioneer and requires a
license of such organizations. In our opinion, a corporation which engages in the
p. 3055
The Honorable Jackie W. St. Clair - page two (H-708)
business of auctioneering must obtain a license under the Act.
However, we can discern no intention on the part of the Legislature to re-
quire licensing of employees, directors, officers, or owners of a licensee
corporation. We note that article 4413 (29bb), V. T. C. S. , the Private Investi-
gators and Private Security Agencies Act, would also permit the licensing of
corporations and clearly would not require a formal license of its employees.
See section 33 of:article 4413 (29bb), regarding registration of employees. In
the absence of statutory language to the contrary in article 8700, we do not
believe the Legislature intended to require duplicative licenses for a corporation
and its employees. In our opinion the license of the corporation inures to the
benefit of those actually engaged in auctioneering, just as their conduct as well as
that of other employees may form the basis for a denial, suspension, or revocation
of the corporation’s license. V. T. C.S. art. 8700, sec. 7.
Your second question is whether license fees may be prorated if issued for less
than a year. Section 4 of article 8700 provides in part:
(a) The annual fee for each auctioneer’s license issued
by the commissioner to a resident of this state is $100. The
annual fee for each auctioneer’s license issued by the com-
missioner to a nonresident is $300. The commissioner
shall issue the license upon receipt of payment of all license
fees. All licenses expire annually on the last day of Decem-
ber of each year and shall be renewed upon the receipt of the
written request of the licensee and the required license fee. . . .
In Attorney General Opinions M-580 (1970) and M-1107 (1972) this Office
ruled that thelack of any language providing for proration of license fees in-
dicated that such fees could not be prorated. However, the statutes involved con-
tained mandatory language as to the amount to be paid and did not use the term
“annual fee. ” We believe the use of that term in section 4 requires proration in
this instance. Unlike the provisions involved in these prior opinions, section 4
does not require the payment of a certain sum with each application; rather, an
annual rate is provided. Thus, where the license is issued for a duration of less
than one year, proration would in our view be appropriate.
p. 3056
The Honorable Jackie W. St. Clair - page three (H-708)
SUMMARY
A corporation engaged in auctioneering must
obtain a license under article 8700, V. T. C. S.
Employees, owners, directors, and officers of a
licensee corporation are not required to obtain a
license so long as their auctioneering activities are
on behalf of the corporation. Auctioneer license
fees should be prorated.
Very truly yours,
DAVID M. KENDALL, First Assistant
Opinion Committee
jad:
p. 3057