n




                                      The Attorney General of Texas
    JIM MAlTOX                                              De:c:ember 31. 1984
    Attorney General


                                    Mr. Allen Parker. Sr.                              Opinion No. JM-293
    Supreme Court BulldIng
    P. 0. BOX 12549                 Commieaioner
    Austin. TX. 79711.2549          Texas Department of ‘Labor and                     Ret Whether certain services
    512l4752501                        Standards                                       fall within the definition    of
    Tdex 9101S74.1387
                                    P. 0. Box 12157                                    a “personnel     service”  under
    Telecopier 512/4750299
                                    Austin, Texas    78711                             article  5221a-7. V.T.C.S.

    714 Jackson. Suite 700          Dear Commissioner Par’ker:
    O~llss. TX. 75202.4506
    2111742.9944
                                          You   have   requlrated    our     opinion   of   whether   businesses   which
                                    provide
    4924 Alberta Ave., Suite l(K)
    El Paso. TX. 79905-2793                     any or all of . . . [certain]     additional services.
    91Y533.34S4                                 either in conjunction   with or instead of [a pre-
                                                pared resume and a list     of preaddressed    mailing
      A Texas, suite 700
                                                labels of potential   employees].   . . .
    Houston. TX. 77092.3111
    713J2255999                     which were the sole services       provided   by the advanced fee resume
                                    service  dealt with   .Ln Attorney   General Opinion H-1236 (19781,     are
                                    within the scope of the renulatlon      of “personnel service” by article
    a06 Broadway. Suits 312
    Lubbock. TX. 794013479
                                    5221a-7, V.T.C:S.,  8s that term is defined In section    l(5).
    SW747.5238
                                                ‘Personnel   Service’ meana a person who for a fee
                                                or wlthou,: a fee offers    or attempts to procure
    4309 N. Tenth. Suite S
                                                dire&l     cz indirect1 permanent employment for an
    McAllen. TX. 79501.lSS5
    512lSS2-4547                                eo4f.r                     an employer.   (Emphasis


    200 Main Plaza, suite 400       For   the  reasons set: forth below, ve conclude that       all the types of
    San Aitonlo. TX. 792952797
                                    services    about vhich you have asked fall      vlthin    the ambit of the
    51212254191
                                    regulation     of personnel   employment services     contained   In article
                                    5221a-7.
     An Equal OppQrtunW
     Alflrmatlve Actlon E~plovw            The additional     services     about which you inquire    are as follovs:

                                                     111 ctKK3tNction   and   implementation    of     a
                                                 ‘marketinll plan’ vhich may include psychological
                                                 and/or aptitude testing to assist the applicant     in
                                                 identifying  career or industry   testing   to assist




                                                                         p. 1306
Mr. Allen   Parker,   Sr.   - Page 1;   (JM-293)




            the applicant      in   identifying    career   or   industry
            goals;

               (21 how to get interviews.    how to perform           and
            negotiate during and after interviews;

               [3]   the provis:Lon of names of specific persons
            authorized to hire and looking for applicants

               [4]  the proviliion      of information   concerning
            work conditions.    quality    of employment, advance-
            ment probabilities,   and income tax consequences;

                [5] the  granting of the right to contact   the
            service  at a late:: date for advice in connection
            with the job search; or

               [6]   direct  contact      by the service    with hiring
            employers.   . . .

We do not believe    that the holding in Attorney General Opinion E-1236
(1978) is dispositive    of whether the six types of services rendered by
the businesses you have Inquired about fall within the definition     of a
“personnel service.”

      Article   5221a-7,   the ulrrent statute governing personnel       employ-
ment services,    and its predlxessors     -- Acts 1923, 38th Leg.,      ch. 41,
at 75 (arts.     5208-5221);    Acts  1943, 48th Leg., ch. 67, at 86 (art.
5221a-4);    Acts 1949, 51st L,zg., ch. 245, at 453 (art.      522la-6);     Acts
1969. 61st Leg.,      ch. 871, at 2625 (amended art. 5221a-6);        and Acts
1979, 66th Leg.,        ch. 263, at 570 (art.       5221a-7)  --    have been
construed by this office         :I number of times.     See. e.g.,    Attorney
General Opinions MU-106 (l’U9) ; H-1236 (1978);          H-629 (1975);      M-750
(1970);    UW-471 (1958);     V-1035 (1950);   V-430 (1947);  O-7299 (1946);
O-6879 (1945).

      In 1945. this office   c,Jnstrued article 5221a-4. which defined            an
 “employment or labor agent,” to include any person who

             offers  or attempt!; to procure or procures employ-
             ment for     employees . . .   or . . .   offers  or
             attempts   to procure   or procures   employees  for
             employers. . . . (:Emphasls added)

 section 1(3)(e),  as prohibit,ing        the payment of     fees   by an applicant
 for employment unless




                                        p. 1307
Plr. Allen   Parkar,   Sr. - Page 3     (JM-293)




             the employment hat; been obtained . . . by the
             applicant.    Any fee or charges made to or paid by
             the applicant   prior to this event is contrary to
             and an attempt to circumvent the statute.       The
             payment of fees      are contingent upon obtaining
             employment . . . by the applicant.

Attorney General Opinion O-,51)79 (1945).  This reasoning was affirmed
in Attorney   General Opinian O-7299 (1946) which,     in holding  that
employers could be charged fees for certain services,   found that

             the purpose of the act is to protect      prospective
             employees vho may be in severe need of employment
             from the stronger        position  of the employment
             agencies.   . . .   ‘ilowever, the agency cannot use
             this practice   [charging employers certain fees] in
             such a way that t1.e applicant is charged more than
             the legal fee.

Similarly.  In again approving the charging of unregulated         fees to
employers for obtaining    employees.. as opposed to the statutory     fees
allowed by article   5221a-4 to be charged to employees for obtaining
employment, this office  point,ed out that

             There can be no doubt that the underlying purpose
             of  the   statute  is  to protect   those   seeking
             employment from exploitation    by an employment
             agency that might be tempted to take advantage of
             the vulnerability of the employment seeker.

Attorney     General Opinion V-430 (1947).

      In   1949 the 1egislatu::e      replaced article     5221a-4 vith both the
Private Employment Agency Act, article            5221a-6, and the Labor Agency
Act, article      5221a-5.    Acts 1949. Slst Leg., ch. 245. at 453 (art.
5221a-6);    Acts   1949. Slat Leg., ch. 234. at 434 (art. 5221a-5).            The
first    construction      of art.lcle     5221a-6,   which defined     a .private
employment agent as anyoa~e who “offers                or attempts     to procure
employment for        amployees    or procure[s]       or attempta     to procure
employees for amployers. . . .‘I section l(a),            noted that

                  [T]he law seek.6 to place responsibility         on the
              person or agency in actual           contact   vith    these
              persons   [prospect.lve    employees]    by requiring       a
              license  . . .     [hl   order   to    regulate]     actual
              procurement     of     and   contact     with     applicant
              employees. . . .




                                         p. 1308
Mr. Allen   Psrker.   Sr. - Page h      (Jib293)




Attorney General Opinion V-la35 (1950).       Thereafter.  this office   had
occasion  to reiterate   its previous holdings regarding the nature       and
scope of the regulation      of Ilrlvate employment businesses   by article
5221a-6 in Attorney    General Opinion WU-471 (1958) as folloWs:


               The authority  for private employment agents              or
            agencies  to charge fees     for their  services             Is
            provided  in Secticsn 8 of Article     5221a-6.              It
            reads as follovs:

                   ‘Sec.   8.    Private     Employment Agents or
               Agencies as defined by this Act and who are
               engaged in tha! business          of attempting      to
               ~~;tetrmptl;yment        for employees or procures
                                   to    procure     employees    for
               employers      in    skilled,     professional,      or
               clerical     positions      may charge,     with the
               written consent of the applicant,          a fee, not
               to exceed forty per cents (40%) of the first
               month’s sala&whlch            may be collected    from
               the applicant     c~nly after employment has been
               obtained    and accepted       by the applicant.’
               (emphasis addeirthroughout         this opinion)

                The statute is free from ambiguities.    The only
            fee which a llcenrled employment agent or agency is
            authorized to charge and collect   from a job appli-
            cant is 40% of t,h.e first   month’s salary as set
            forth in Sectiou 0 above.

                . . . .

                Clearly  the intent of the Legislature     was to
            authorize private   employment agencies to charge a
            placement fee not to exceed forty (40) per centum
            of the applicant’s   first month’s salary.   No other
            fee of any sort :ls authorized    by the statute and
            under no conditions    can the authorized fee or any
            other fee,    be charged prior    to the applicant’s
            obtaining and acce%pting employment.

               In the instant case the ‘search fee’ is charged
            the applicant prior to his obtaining and accepting
            employment and, in fact,   the only purpose for the
            fee is to assist him in securing employment. That
            the parent organization  is an out of state concern
            makes no differenc:e.   The whole mode of operation




                                      p. 1309
Mr. Allen    Parker,   Sr. - Page !i   (Jh-293)




             is designed to accomplish exactly what the statute
             intended to prevea t , that is, the charging of any
             fee   prior  to   the   applicant’s    obtaining  and
             accepting eaployment and the charging of a greater
             fee than that at.thorired      by Section    8 of the
             statute.

                The opinion of this office      Is that the charging
             of a ’search        f ue’  prior  to    the   applicant’s
             obtaining and accepting employment vould amount to
             a registration     fee and would be in violation          of
             Article   5221a-6,     Vernon’s Clvll    Statutes,   which
             prohibits    a fee to be collected         by a private
             employment     agency     prior  to    the    applicant’s
             obtalnlng and acce,p ting employment.

      Thus, when article     5221a-6 was amended in 1969, it had been the
consistent    construction  of this office      that the purpose of the subject
regulatory      scheme was     to     protect     prospective      employees    from
overreaching by private employment agencies and that a key element of
that scheme was the unamhtguous prohibition               of such agencies      from
charging or collecting      any fee whatsoever prior to the obtaining              of
employment by or for applicants.              At that time the words “either
directly    or Indirectly”    were added to the deflnltion           of a private
employment agency as set out in section             l(e)   to modify and broaden
such an agency’s legally      dofining purpose “to procure employment for
employees. . . .” V.T.C.S. art. 5221a-7. 11(S).               Also, the limitation
on the authority of such an agency to charge any fee to an applicant
for employment, previously      found in section       11 of article    5221a-4 and
then in section       8 of article      5221a-6 as originally         enacted,   was
reformulated     in section   13(a)(l)    of the amended article         5221a-6 to
prohibit   the imposition of

             any fees for     the registration    of applicants    for
             employment or     any fee of applicants      except for
             furnishing of    empl~oymentobtained directly    through
             the efforts of    suC!n agency;   (Emphasis added).

                 * . . .

Acts  1969. 61st Leg.. -t,            at 2630 (art.    5221a-6. 113(a)(l)).While
neither     the words “either      directly   or indirectly”     added to section
l(e).    nor the restatement        of the longstanding       limitation    on fees
charged to employees have been the subject of any specific                analysis,
this    office   reaffirmed    the holdings      of Attorney     General Opinions
O-7299 (1946)       and V-430       (1947)  that    the basic     purpose    of  the
predecessor     statute,    article     52218-4.   was to protect        vulnerable
employment seekers        from exploitation        by overreaching       employment




                                       p. 1310
Mr. Allen   Parker,   Sr. - Page CI (JM-293)




agencies.      Attoroey General Opinion M-750     (1970).     In 1971,     article
5221a-6.    section 13(a)(l).  wi,s amended to prohibit

             any fees for the registration   of applicants     for
             employment or any other fee of applicants     except
             for the furnishing; of employment referrals    which
             result   in   the   applicant  obtaining    employ-
             ment. . . . (Emph.~3is added).

Acts 1971, 62nd Leg.,         ch. 772,    at 2424.    In 1975 this    office
reiterated   Attorney     Genera:; Opinion M-750’s     reaffirmation of the
underlying purpose of the sta,te’s regulation      of the private employment
agency business.      Attorney Gmeral Opinion H-629 (1975).

      As you indicated,   Attorney General Opinion E-1236 (1978) seems to
suggest a limitation    on the previously      adopted scope of the statutory
regulation.    Even that opinion, however, recognized the breadth of the
operative   word “procure” in the definition         of a “private    employment
agency” when It cited Miller v. Eldrid e, 286 S.W. 999 (Tex. Civ. App.
- Amarillo     1926. writ       -4ein,
                             dilm  d).                 the word “procure”       is
understood   as Webster defit,ed it:       “‘
                                            to    bring   about;  to  effect;   to
cause’.   . . .” Id. at 1000.       Hence,   someone   “procures”   a thing   when
he is instrument~in      bring:tng it about.       When this verb is i modified
by the word “indirectly”     th#%re can be no doubt of the broad scope of
the coverage   of the statute.

                 The word ‘indi~:r!ctly’    is defined by Webster as
             ‘not resulting     di:rectly  from an act or cause but
             more or less rem’telv        connected with or nrowinn
             out of it.’     This definition    has received    a&rovai
             in Amicable Life Ins. Co. v. O’Reilly.            Tex. Civ.
             Auu. 97 S.W.2d 24(: 247, writ of error dismissed:
             ‘il~ndirectll   means not direct       . . . circuitous,
             oblique;    as, an Indirect     road; not leading to an
             aim or result by the plainest         cause or method or
             by obvious      means, but obliquely        or by remote
             means; roundabout; not resulting         directly   fc
             act or ~eause, but nore or less remotely connected
             with or growing oc; of it. . . .’

 Maryland Casualty    Co. v.   Sctarlsck.
                                  --        31 P. Supp. 931 (S.D. Tex.     1939).

                 The word ‘indirectly’    was before   the Dallas
             Court of Civil Appeals in Fanners’ State Bank v.
             Mincher, 267 S.W. 996.      Citing that definition,
             the    Supreme Cour~t of    Nebraska   in   State   v.
             Pielsticker,  118 Neb. 419. 225, N.W. 51, 52, said:
             mIndirectly”    signifies  the doing by an obscure




                                    p. 1311
Mr. Allen   Parker,    Sr. - Page '7 (JM-293)




            circuitous   method something which is prohibited
            from being done directly,   and includes all methods
            of doing the thlr,g prohibited     except the direct
            one.    Farmers' State Bank v. Mincher (Tex. Civ.
            ~ppp.) 267 S.W. 996.'   (Emphasis in original),

Amicable Life Insurance Co. v. O'Reilly,     97 S.W.2d 246 (Tex. WV. App.
- Beaumont 1936, writ dinpd).          Hence, the addition     of the words
"either   directly   or indirectly,, in the 1969 revision    of the subject
statutory    regulatory   schem: served to reinforce      the then quarter
century old construction     of the purpose of the act.

      Whether any one of the specific   services    about which you inquire,
either separately or in conjunction with other services,        would bring a
business which offered it 01: them within the ambit of article        5221a-7
is a fact question and depelvis on the application       of the standard set
out in the statute's     definition   of a "personnel       service,,  to the
specific   facts  of any particular      situation.      Any business    which
purports to attempt, even indirectly,      to bring about the eventuality
of employment for a prospect,lve employee is covered by article       5221a-7
and may not charge any fos except as a 'result             of  the applicant
obtaining employment.

                                    SUMMARY

                Whether     businesses     which      provide     various
            additional    servic,,s beyond merely a prepaid resume
            and a list       of preaddressed        mailing    labels    of
            potential    amploye~zs come within the scope of the
            regulation     of personnel      employment services         by
            article   5221a-7. ,,,T.C.S..     is a fact question.        If
            such services     conotitute   offering    or attempting to
            be    an instrumeatal        cause    in    bringing      about
            employment for prospective         employees, even if the
            procurement      of    :such employment         is   remotely
            connected with suc'h services,         they are covered by
            article    5221a-7, 'I..T.C.S.




                                                     Attorney   General of Texas

 TOMGREEN
 First Assistant      Attorney   General




                                           p. 1312
Mr. Allen   Parker,   Sr. - Page 8    (JM-293)




DAVID R. RICHARDS
Executive Assistant Attorney      General

RICK GILPIN
Chairman, Opinion     Committee

Prepared by Colin Carl
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin,  Chairman
Colin Carl
Susan Garrison




                                     p. 1313
