Eonorable Mike Driscoll                Opinion No. JM-602
Earris County Attorney
1001 Preston, Suite 634                Re: Whether a physician may be
Bouston, Texas 77002                   represented by his authorized
                                       agent in small claims court

Dear Mr. Driscoll:

     You have informed us that a group of doctors has formed an
unincorporated association, and they have hired an employee to manage
their offices. One of the duties of the employee is to make a sworn
statement as to each claim and appear in small claims court at a
hearing to present the case on behalf of the individual doctor or the
association. You argue that this use of the employee to appear in
small claims court on behalf of the association or the individual
doctor is contrary to the general rule that representation of others
before a court constitutes the practice of law; and, it may only be
done by attorneys licensed by the State Bar of Texas. V.T.C.S. art.
320a-1 (State Bar Act).     In that regard you ask the- following
questions:

            1. Whether a doctor’may represent himself in
         small claims court?

            2. Whether a doctor may be represented by an
         authorized agent in small claims court?

     Section 28.003 of the Government Code which governs         the
jurisdiction of the small claims court provides as follows:

         (A) The small claims court has concurrent juris-
         diction with the justice court in actions by any
         person for the recovery of money in which the
         amount involved, exclusive of costs, does not
         exceed $1,000.

            (b) An action may   not be   brought   in   small
         claims court by:

                 (1) an assignee of the claim or other
            person seeking to bring an action on an
            assigned claim;




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Honorable Mike Driscoll - Page 2    (a-602)




                  (2) a   person primarily or secondarily
             engaged in the business of lending money at
             interest; or

                  (3) a   collection   agency   or   collection
             agent.

             (c) A person may be represented by an attorney
          in small claims court.

             (d) This section does not prevent a legal heir
          from bringing an action on a claim or account
          otherwise within the jurisdiction of the court.
          (Emphasis added).

In response to your first question, a doctor is authorized under.
subsection (c) to represent himself in small claims court.         The
legislature's use of the term "may" in subsection (c) implies that the
use of an attorney in small claims court is not mandatory; and,
therefore au individual may a&so represent himself. Also relevant 'to
these issues is subsection (a) of section 28.012 of the Government
Code which provides:

             To institute an action in small claims court,
          the claimant or a personal representative of the
          claimant must appear before the judge and file a
          statement of the claim under oath.      (Emphasis
          added).

Consequently, we believe that the implications to be drawn from sub-
section (c) of section 28.003 and subsection (a) of section 28.012
mean that a non-lawyer may represent himself in small claims court.

     Prior to 1985, the law governing small claims court was codified
in article 2460a. V.T.C.S., which is now codified in sections 28.003
and 28.002 of the Government Code as quoted above. See Acts 1985,
69th Leg., ch. 480, 926(l), at 4085, eff. Sept. 1, 1985rThe    Govern-
ment Code was enacted as a part of the state's continuing statutory
revision program in which the legislature did not contemplate any
substantive change.    See Gov't. Code 51.001.      Therefore, former
article 2460a. section7     and the above quoted provisions of the
Government Code explicitly provide that all persons, firms,
partnerships, associations or corporations engaged, either primarily
or secondarily, in the business of lending money at interest,
assignees of actions, and collection agencies and agents are precluded
from maintaining actions on behalf of their clients in small claims
courts.

     The purpose for the small claims court was to provide a forum to
place justice within the reach of litigants, who were previously




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Eonorable Mike Driscoll - Page 3   (~~-602)




denied such relief because litigation expense and delay overshadowed
their small claims. See generally Kosmin, Leslie G., The Small Claims
Dilemma, 13 Eous. L. Rev. 934 (1976); see also Note, The Small Claims
Court, 1 S. Tex. L. J. 80 (1954). Its purpose was not to provide a
form whereby collection agents and agencies could circumvent the
requirement of the State Bar.

     The brief facts you have submitted suggest that the employee may
be acting as a collection agent for the individual doctors or the
unincorporated association. It is clear that the only non-licensed
individual who way represent another individual in small claims court
is a "personal representative" of a claimant.        See Gov't. Code
928.012(a). For the reasons discussed below, we believe that the
employee may represent an association in small claims courts0 long as
the employee is not employed merely as a "collection agent."

     We are.unable to find any judicial decision which considers the
question of whether an unincorporated association may be represented
by a non-lawyer employee in small claims court. However, the purpose
of the small claims court and the policy which justify the representa-
tion of corporations by laymen in small claims kourt are applicable to
unincorporated associations. Attorney General Opinions H-538 (1975);
.C-82 (1963). The Texas Constitution authorizes the legislature to
establish inferior courts, such as the small claims court, and "pre-
scribe the jurisdiction and organization thereof." Tex. Const. art.
V, 111; Earris County v. Stewart, 41 S.W. 650 (Tex. 1897); See also
E,     Texas Courts of Exceptional Jurisdiction and Organization -
Constitutionality - Small Claims Courts, 9 Tex. L. Rev. 388 (1930).
On the other hand, the legislature has enacted section 10(a) of
article 320a-1, V.T.C;S., the Staie Bar Act, which prohibits "[a]11
persons not members of the State Bar . . . from practicing law. . . .ll
V.T.C.S. art. 320a-1, 510(a). Although there appears to be an apparent
conflict between allowing the non-lawyer employee to represent an
association in small claims court and the State Bar Act, we believe
that the purpose of the small claims court and the policy which
justify the representation of corporations by laymen justifies this
exception to the State Bar Act.

    The legislature intended the small claims court to be a “laymen’s”
court; Kosmin. Leslie G., The Small Claims Dilemma, 13 Eous. L. Rev.
934 (1976). It is to function as a tribunal wherein the judge has the
duty to develop the case. Gov't. Code 528.034. The hearings are
informal and its sole objective is to "dispense speedy justice between
the parties." Gov't. Code 128.033(d). This office has previously held
that these are legitimate reasons to allow a corporation to be
represented by a non-lawyer employee in these proceedings. Attorney
General Opinions H-538 (1975); C-82 (1963). Although the rule is
different when it comes to allowing individuals to represent other
individuals in the court, a corporation and an association are
essentially different from a natural person. A natural person can act




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Honorable Mike Driscoll - Page 4   (JM-602)




and appear for himself, but a corporation and an association must
always act through its agents or representatives. Accordingly, we
believe that because of the nature of the small claims court, the
legislature intended to allow an employee of an unincorporated
association of doctors to appear in small claims court on behalf of
the association, so long as the employee is not employed solely as a
collection agent. An employee of an unincorporated association may
not appear on behalf of an individual doctor.

                              SUMMARY

           Subsection (c) of section 28.003 of the Govern-
        ment Code authorizes a doctor to represent himself
        in small claims court& The provision also-authorizes
        an employee of an unincorporated association to re-
        present the association in the small claims court so
        long as the employee is not employed as a collection
        agent.   However, the non-lawyer employee of the
        unincorporated association is not authorized to
        represent the individual doctor, who is a member of
        an association, in small claims court.




                                          Attorney General of Texas

JACK EIGRTOWRR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




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