         T




                              June 23, 1952


Hon. Jo A, Phillips                  Opinion No. V-1470
Chairman, Texas State Board
 of Public Acco,untancy             Re: Duties of the Texas
Austin, Texas                           State Board of Public
                                        Acco.untancy upon re-
                                        ceiving evidence that
                                        an unlicensed individ-
                                        ual is holding himself
                                        out to the public as a
Dear Sir:                               public accountant.

            Your request for an opinion of this office con-
cerns the question of prosec,uting a person who holds him-
self out as a "certified public accountant" and who is
performing services generally performed by public acco,unt-
ants , b,ut who does not hold a permit to practice public
aeco.untancy from the Texas State Board of Public Account-
a.ncy.

             Then yo~u ask:

          "(1) Is it the d,uty of o'ur Board to
     formally bring a complaint to your office
     involving the above violations and req,uest
     that you initiate proceedings, or

          "(2) Is it the d,uty of o'ur Board to
     bring.the violations to the attention of
     the District Attorney or the Co,unty Attorney
     where the violation was cdmmitted, or

          “(3). Is it the duty of citizens living
     in the area where the violation occ:urred to
     bring the violations to the attention of the
     District Attorney or County Attorney?"

           Section 2(a) of Article 41a, V,C.S.       (Pub1l.c Ac-
co'untan?y Act) ,?rovides::

          "'Practice   of Public Accouu:,tincys D A
     perso ,-ngages in ti;ce'practice of publl~c ae-
     '2
      ,J&yt,
          <:.:
             ,;_:
              T,1 wi.?hin the mear~.ing;i' this Act who,
Hon. J. A. Phillips, page 2 (V-1470)


     holding himself out to the public as a public
     accountant, in cons~ideration of compensation
     received or to be received by him, offers to
     perform or does perform, for other persons,
     services which involve the auditing or exami-
     nation of financial transactions, books, ac-
     counts, or records, or the preparation of,
     or the reporting over his signature on, fi-
     nancial, accounting.~and related statements."

          Section 24 of the Act provides:

          "After the effective date of this Act,
     any person who shall hold himself out to the
     public as a public accountant or shall engage
     in the practice of public accountancy as same
     is defined in.Section 2 of this Act, without
     having obtained a certificate or permit, or
     any person who shall violate any of the pro-
     visions of this Act, shall be deemed guilty
     of a misdemeanor and upon conviction thereof
     shall be punished,by a fine not to exceed
     Five Hundred Dollars ($5OC.O0), or by im-
     prisonment in Jail for, not more than six
     months, or by both such fine and imprison-
     ment."

          Clearly the statute creates an offense against the
State, subject to prosecution in the same manner as other mis-
demeanors, We know of no law which authorizes the Attorney
General to represent the State in such criminal cases.    -

          Section 21 of Article V of the Constitution of
Texas provides in part:

          "A county attorney, for counties in which
     there.is not a resident criminal district at-
     torney, shall be elec~tkd by the qualified voters
     of each county, who shall'be commissioned by
     the Governor, and hold his office for the term
     of two years, In case of vacancy the commis-
     sioners' Court of the county shall have power
     to appoint a county attorney until the next
     general election. The county attorneys   shall
     represent the State in all cases in the Dis-
     trict and inferior courts in their respective
     counties; but if any county shall be included
     in a district in which there shall be a dis-
.



    Hon. J. A. Phillips, page 3   (V&1470)



         trict attorney, the respective dutfes of dis-
         trict attorneys and county attorneys shall in
         sue; counties be regulated by the Legislature.
         DI .

              Articles 25 and 26, V.C.C.P., provide:

              "Each district attorney shall represent
         the State in all criminal cases in the district
         courtsof his district, except in cases where
        he has been, before his election, employed
        adversely-   When any criminal proceeding is
        had before an examining court in his district
         or before a judge upon habeas corpus, and he
         is notified of the same, and is at the ,time
        within the county where such proceeding is had,
        ,he shall represent the State therein, unless
         prevented by other official duties."

              "The county attorneys
                                  'I shall attend the
         terms of all courts in his county below the
         grade of district court, and shall represent
         the State in all criminal cases under examina-
         tion or prosecution i,n said county; and in
         the absence of the district attorney he shall
         represent the State alone, or when requested,
         shall aid the district attorney in the prose-
         cution of any case in behalf of the State in
         the district court, 10 r'

              It is seen from the foregoing that it is the
    duty of the district or county attorney to represent
    the State in such criminal cases.

              It is an established rule that public officers
    and governmental and administrative boards possess only
    such powers as are expressly conferred upon them by law
    or are necessarily implied from the powers so conferred.
    Anderson v. Houchins, 99 S.W.2d 1029 Tex. Civ. App-
    1936)                   g         418 I1849). Although
    Se,t,bnB~~fvAr~~~~~e~l~    5V?xS    authorizes the
    Board to institute proceedings a&nst    any person holding
    2 certificate or permit under the act to suspend or re-
    voke the certificate or permit for certain violations,
    the act does not require or authorize the Board as su>h
    to file compla.ints against persons who do no,t hold a
    certificate or permit. Therefore, s;nce the law imposes
    no duty upon the Board as su:h to fi.le complaints against
                                                             .   .



Hon. J. A. Phillips, page 4   (V-1470)


persons who practice accountancy without a permit or
certificate, it would not be derelict in its duty for
failure to file complaints in such cases.

          Article 221, V,C.C.P., provides;

          "The affidavit made before the magistrate
     or district or county attorney is called a
     complaint If it charges the commission of an
     offense."

          Article 415, V.C.C.P., provides:

          "No Information shall be presented until
     affidavit has been made by some credible person
     charging the defendant with an offense. The
     affidavit shall be filed with the information,
     It may be sworn to before the district or county
     attorney who, for that purpose, shall have power
     to administer the oath, or it may be made before
     any officer authorized by law to administer
     oaths."

          It is seen from the provisions of these articles
that any credible person~may file the complaint and a
credible person is one who, being competent to testify,
is worthy of b~elief. Halbadier v. State, 87 Tex. Grim.
129, 220 S.W. 85 (19203. Therefore, 'it is our opinion
that any member of the-Board in his Individual capacity
or any other citizen who is a credible person would be
authorized to file the complaint.




           Article 4la, V.C.S. (Public Accountancy
     Act) does not require the~,Texas State Board
     of Public Accountancy to file complaints a-
     gainst persons who are practicing as public
     accountants but who have not been issued a
     certificate or permit by the Board. However,
     any member of the Board, individually, or
     any other citizen who is a credible person
     may file a complaint charging the commission
     of this offense. The district or county
     attorney represents the State In such a
     case e
_.   .



         Hon. J. A. Phillips, page 5   (V-1470)


                                            Yours very truly,
         APPROVED:                             PRICE DANIEL
                                            Attorney General
         J. C. Davis. Jr.
         County Affairs Division
         Mary X. Wall
         Reviewing Assistant
                                                  Assistant
         Charles E. Mathews
         First Assistant

         BA:am
