OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Bon. Joe Ibnsohlk Comnlnsioner
Bureau of Irbop 8&.tirtlor
Aultb, Torar
Bear Slrl
TOUT Teoent
partDhnt on em above
Eon. Joe Kunrtclrik, Co~~~iosioner, page 2
in finding engageWlentsfor oroheetraa. 'B'
ha8 no authority to fir prices, eta., but is
lnstruotedby (1' as to the orchestrasthat
are available @.caEl to b8 sscured, eta. If
*B(,suaoeede in interestinga person in one
of *n's' orohsetras,he eske *A' fox one of Its
contracts. *A* rills out the contract on lte
regular form and aendsit to *B* who in turn
has the client sign the oontraat. *B* alao uaual-
ly colleots a deposit, which is usually made out
to 'A'. Both the contract and deposit are then
sent t0 (A’. After the contract is fulfilled
and the engagement has been played, '~1 charges
the oroheatra a fee I@ senioee in oonnection
with the boo- of tha engagement. 'A' then xe-
mits one-half of ths rse (or sovm portion thereor)
to 'B*.
*Do oontraot is binding until the orcheetra
leader himself signs It, unless he ha8 delegated
such authority to *A*. The contrsct form doe8
not stipulatehow the leader is to conduot his
orchestrawhile fulfillingthe engagement. The ,
contract seta forth the length of the eagagemnt,
e.g., 9 till 12, 0 till 1, eta., ana also men-
tions the place of the engagement,price to be
paid, deposit oolleatod, etc., but does not 8tip-
ulate the type of mualc to be played, number of
intermlssionsto be taken or when, eta. The
orchestramsrelg plays and performa in the man-
ner in vihichit is accustomed,and they may vary
samewhat the nature of their parfoxmance if they
viish. If the persm attempts to euperrisethe
parformancain a mannerwhioh the leader does not
approve, he is not oompelled to adhere to the
su~estions made. *gl probebly never ivmes in
oontaot with the orchestra leader at all, and
has no su~emieion of any kind over his actions.
*B* probably will not appear at the function fat
which the orchestra is engaga6, nor will his neme
appear on any of the contmots,
*Do the activities described above come with-
in the provisions of the Employment A@ncy I&SW,and,
if SO, HOUltl'A', t3r, or both, be required to ob-
tain employment agency lioensee before carrying on
such operations?"
Hon. Joe Plnaohik, Cvwledoner, page 3
Article 6208, Veruon*&iAnnotated Clril~.St&~t-
.
utes, read8 as follows:,~
"The term *Zmploywnt Agcint*'w*s 'erery
person, firm, partnership'or68aooiat$+ .ofper-
son8 engaged In the ~busiaeaeof assisting emphyeqs
to mmu-8 employees,and persaas to s*otu+saplo~-
melit,or of 001leating htormatloA regmdla&
emplorera seeking emp+oyee#.a& persum 8eNdag
employment. The tear %mplo~nt Office'mea&i
every plaae or office where the bualneea of giving
intelligenceor inforntetfon where amplop& or
help may be obtained or where the business of @II
employmentagent la carrieA on. The term 'ixQnml8-
eionertwan8 the Co~~~~isrionar
ai labor Stetl6tioe
of the State OS Texas. The term *Beputy ar'Iaspeot-
or* means any person who shall be duly authorizeA
by the Commiesloaerto aat in that oapaoitr'.*
to the 8tatutorydOriniti0nabm 6et
AcoorU.Ix+g
out an *EmploymentAgent* fs a parson,firr, partwrrhip
or associationof persona engageA ia tha busi~esa of
bringing about JIBemployer-employeeor water-wrvent re-
latfonehip between two perscms or s.firm, oorporation,
partnership,eta,, a8 employer or master and a person ar
employee or am-rant.
We quote from Word dcPhrases),mnent XAltion
9, page 529, a8 rvihtst
*Where ovntract is let.for nosk to be done
by another In wiiiohoontraotaereserves no control
aver means of its acooinpllshment,but merely as to
result, employment is indepsmdent one establishing
relation of luontxaotee*an8 *contra&or*, and not
of *master* and *servant.*
-Fe again quote from Words k Phraoea, toluma 9,
page 2992. as followst
.I.
Hon. Joe Xhnsohik, Comnisaioner,pa$e 4
'i
l
Webster define8 employee* aa one who i8
employed; a *oontraotor* as one who oontraotai
to do anything. Those ~efinitlonsare very bn-
eral, but they obrloucly suggeet, applied speo-
ifioally, that an tunployelr.one who is em,ploye&
to perform personal asniees and a oontraotor
one who engage8 to dd a parthlar thlq~ #a
idea or personal rervfoe not being a zmoes8ary
element in the bargain. In the BtaxkdardMe
tionary it is said that an employe ia a per-
who is~emploped;one who work8 ior wage8 or I
salary, or who ia engaged In the asnloe of an-
other; a oontractor.isone who exeoutes pla&
under a oontraot;a muboontraotar i8 6htewhe’,,’
oontractewiththe prfnofpal ochntraotor ti do .
work embraoed in the latter*8contraot~that.ir,
obviously, one who oaatxaotil to ezeoute sown itb
tegral part of the work oorered by the SO- of
t&e prfnoipl oontraot. By the 0ediin-y I3iotiiop-
a~weereinfom8dtbatauamployeisone*bo
work8 for an employer a pormn -workingfor .a.
salary or wa*S: Utmnilr olortr, workmen, I- I
ere, eta. $ that a oomtraotoris QII~who aorit+etQ
to fUrni8h BupplieI#, or to OoMtrPUt. WiZk 0~'
emeot built or perfoa 8ltywerk 011aonfao, I
at a 0ertaiD price or rates that a wbo0ntmMtot
is one who takes a part or the whole of t&w01 .
eonl'the prinaiPaloontraatm. quo~lttill~be
amen, dtht auy extended analyaia Or the fart ,(
lous lesfoal definitiona, that the 8Qnfffoaat /
sl.cumntin the,relation of an employs au& hia
employer, npealrically aonsidered,is permo!a&
serrloe, while the signiri0m element In 6uoh
relation between a oontraotorend his prinoipal
is the worki aB an entirety, to be peCfoti1y .
him& ?a-2 v, St. Croix Power Co., 93 H.W. 850,
834, 117 wf8.'?6.
who hare entire acmtrol .af
~~Contxa:aetors
the work to.be done, and were in no way subjeot
to the oontrol or direotlon of the person with
whom they aontmoted, while perfoIPiagt&e Wark .
they oontreotsdto do for them, are not laboMx8,
in the MMe that they were earnin
pe~eon 8tw ths work to be don6 by fih2-*&~~
atitate~?laborersor employera,who can be eald'to
be earning wages of an employer, they must b8
Joe KtinsohIk,Cormfssioner,Page 5
HCSZI.
holding such e relation to the eqloyer that he
can Bi??c?ct and control then in aad about the work
whioh they are &ofnh;fog him. . . .*
The term w-anployee8aindLeatespereoae hired to
work ror wages
. as the
- ..employer may
. direot,
- and does not
embraoe t;?ecase or tne employmentor a person oarr9lng
on a distinct trade or calling to perform servious tide-
pendent of the control of the employer. CAHPFIIEISV. LAB&
0. S. 25 Fed. 128, 131.
We are oonstrainedto the opinion that the stat-
utes involvedwere enacted to regulate the tJrpioaland well-
reoognized saploylaentagent's bnslness which roti not in-
clude that of the booking oolnpanyas desorlbed & year
letter.
The e%a910yAmntagency law oontmaplatasonly the
regulation of the neg,otiationsbetween the employer and em-
ployee, md does sot relate to negotiationsoi independent
oontraotualnature. The rule of master and aermnt, whether
';hadetails of the work are coatrolLed b9 the independent
ccmtraotoror by 'theperson hiring the work deae, is the
orltarfon'fnpeakingthe dlst,inotien betwsn an eaplloyer-
e3aployee,and an Independentoontraaterrelatltmilhlp.
Under the facts stated in 9our inquiry,wa tkink
it is alear that the contraatualrefataon between the per-
son for ophoti
the orohestra furnishedamsi.aand the 1eaUer
oi the orohestra is not one of emploger an& ~emplo9eeor
master and servant, but that of an independentoontraotor-
oontraatorand oontra~otes.
In view of the Poregoing, you tie reapeottull9
advised that It is the opinion of this department that
the above desoribad adtivitlse do not ocntt,
aitkfn the pro-
visioas oi the uaemplo9mmt aganoy law and neither *A* or
=B* would be requtiad to obtain an eiuplo9mentalgenoylioenee
before oarrying an such opsratiom,
- -.
95
Hon. Joe Eunsahik, Commissioner,page 6
Trusting that the foregoing fully answers your
inquiry, we are
Yours very truly
Willlams
A88i8taUf
A?TORNEY GENERAL OF TEXAS
Untitled Texas Attorney General Opinion
Combined Opinion