                        August 9, 1588



Mr. Richard L. Morgan       Opinion No. JM-1084
Commissioner
Texas Department of Labor   Re:   Authority of the Department
  and Standards             of Labor and Standards to enter
P. 0. Box 12157             into a settlement agreement which
Austin, Texas 78711         provides  for a civil     penalty
                            under article 8700, V.T.C.S., the
                            auctioneer statute  (RQ-1721)

Dear Mr. Morgan:

     You ask:

        In a contested case under Article       8700,
        Section 7(a) and (e), can this administrative
        agency enter a settlement agreement pursuant
        to Article  6252-13a, Section  13(e) whereby
        the Respondent agrees to pay a civil penalty
        to the State of Texas in lieu of license
        forfeiture or suspension?

     Article 8700, V.T.C.S., provides for the regulation     of
auctioneers in Texas.   Section   3 of   the article   provides
that no person may act as an auctioneer in Texas unless he
is licensed by the Commissioner   of the Texas Department    of
Labor and    Standards.   Section    9 provides      that   the
commissioner  may make reasonable      rules and regulations
relating to licensure applications,        as well as      "the
issuance, denial, suspension, and revocation of licences,
and the conduct of hearings consistent with the provisions
of The Administrative Procedures Act. 'I Section 7 provides
in subsection (a) that the U9commissioner may deny, suspend,
or revoke the licence of any auctioneer"        for specified
causes. Subsections (b) through (d) of section 7 provide
that "before denying an application for a license or before
suspending or revoking any license," the commissioner     shall
give notice and set the matter for a hearing at which the
applicant or licensee is entitled to be present and offer
evidence. Subsection (e) provides:

           The hearing must be conducted in a manner
        that will give to the applicant or licensee
        due process of law and that is consistent



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Mr. Richard L. Morgan - Page 2       (JM-1084)




        with the provisions   of the Administrative
        Procedure and Texas Register Act      (Article
        6252-13a, Vernon's Texas Civil Statutes).

     The Administrative  Procedure  and Texas Register Act
(APTRA), V.T.C.S.   art. 6252-13a, was enacted to provide
minimum standards of uniform practice    and procedure for
state agencies. Id. 5 1. Section 13 provides for hearings
of contested  cases, including notice and record keeping
requirements.  Subsection (e) of section 13 provides:

           Unless precluded by law, informal disposi-
        tion may be made of any contested case by
        stipulation,   agreed   settlement,   consent
        order, or default.

In response to your question, we conclude that subsection
(e) does not expand the authority of the commissioner       to
impose sanctions beyond those authorized    in article   8700,
V.T.C.S., in a contested case on auctioneer        licensure.
Since article   8700 authorizes the commissioner      only to
*'deny, suspend, or revoke" licenses, the commissioner has no
authority to impose a civil penalty in lieu of the sanctions
available under article 8700, V.T.C.S.

     The language of subsection    (e) of section     13 has
appeared   in APTRA since its original enactment in 1975 and
is identical with that in section 9, subsection (d), of the
Revised Model State Administrative Procedure Act of 1961.
Acts 1975, 64th Leg., ch. 61, at 140. Numerous other states
have adopted, as part of their administrative       procedure
laws, provisions identical or substantially similar to those
of section 13, subsection (e). We find no cases in Texas or
in states having provisions   identical or similar to the
provisions of subsection (e) that construe such language   as
expanding an agency's authority    as to sanctions    it may
impose or other actions it may take in a contested      case.
The purpose of subsection      (e) appears to be       purely
procedural, i.e., to allow, where the parties agree, for the
settlement   or other informal disposition     of   contested
matters without the need of formal proceedings.   See. e.a.,
Gloss v. Delaware & Hudson Rv. Co., 378 A.2d 507 (Vt. 1977).

                       SUMMARY

           The Commissioner of the Texas Department
        of Labor and Standards  is not authorized   to
        impose civil penalties    in contested    auc-
        tioneer licensure cases by the provisions   of
        either V.T.C.S. article 8700,. Section 7, or
        V.T.C.S. article 6252-13a, section 13(e).


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    Mr. Richard L. Morgan - Page 3      (JM-1084)




                                            JIM     MATTOX
                                            Attorney General of Texas

    MARYKELLER
    First Assistant Attorney General

    LOU MCCRFARY
    Executive Assistant Attorney General

    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General

    RICK GILPIN
    Chairman, Opinion Committee

    Prepared by William Walker
    Assistant Attorney General




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