                                      February 4, 1939


Hon. 'G.B. Sexton
County Attorney
Orange County
Orange, Texas
Dear Sir:
                        NO. O-197
                        Re: Validity of a tax contract
                            with a person who is not a
                            lawyer
          This is in answer to your letter of :Tanuary23,
1939! to Hon.
            _ Gerald
              ._     C. hlann, in which
                                      . you ask for our
opinion on whetner or not a contract oetween Orange County
and R. B. DeWitt, under which Yr. DeYiittis to enforce the
collection of taxes by suit or otherwise, is a valid con-
tract in view of the fact that Kr. De:'iittis not an attor-
ney at law. As we understand it, he has no license to prac-
tice law.
          The contract recites at the beginning that the Com-
missioners' Court of Orange County deems it necessary "to
contract with some competent person to enforce the collect-
ion of all delincuent state and county taxes for a per cent
of said taxes", and that said Commissioners are of the opin-
ion that R. B. ,DeV:itt
                      *Iisproper party to take such steps
as may be necessary to enforce or assist in the enforcement
of the collection of such delinauent taxes by the prepara-
tion, filing and pushing to a speedy conclusion all suits
for the collection thereof": and the contract there recites
in paragraph 1 that Orange Cuur?ty"agrees to employ and does
hereby employ Second Party (R. B. DeViitt)to enforce by suit
or otherwise...the collection of all delinquent state and
county ad valorem taxes"; and paragraph III recites that
R. B. DeWitt, who is referred to in the contract as Second
Party, shall send all persons owing taxes statements and no-
tices, and if their taxes "are not paid within thirty (30)days
Hon. "i.9. Sexton, February 4, 1939, page 2


from the date of such statements and notices are mailed,
then Second P-rty (R. 2. Ds;!2ritt)
                                 shall prepare, file and
institute, as soon as practical thereafter, a suit for the
collection of said taxes"; and paragraph VII p??ii%desthat
Second Party shall receive as compensation 15 percent of
the amount collected under the contract; and paragraph
XIII recites that "it is further understood and agreed
that this contract is for personal services and is not
transferable or assignable"; and finally it is provided
in paragraph XIV of the contract .;thatwhere the county
or district attorney shall fail or refuse to file and prose-
cute such suits in good faith, the attorney prosecuting
suits under this contract is hereby fully empowered and
authorized to proceed with such suits without the joinder
and assistance of said county or district attorney." There
are other provisions in the contract that we have not men-
tioned, but we do not deem it necessary for the purposes
of this discussion to recite them.
          The parties who entered into this contract evident-
ly intended for it to come within the terms of Article 7335
of the Revised Civil Statutes of Texas, which reads as fOl-
lows:
               Yfienever the commissioners court of any
          county after thirty days written notice to the
          county attorney or district attorney to file
          delinquent tax suits and his failure to do SO,
          shall deem it necessary or expedient, said
          court may contract with any competent attorney
          to enforce or assist in the enforcement of the
          collection of any delinquent State and county
          taxes for a per cent on the taxes, penalty and
          interest actually collected, and said court is
          further authorized to pay for an abstract of
          property assessed or unknown and unrendered from
          the taxes, interest and penalty to be collected
          on such lands, but all such payment and expenses
          shall be contingent upon the collection of such.
          taxes, penalty and interest. It shall be the
          duty of the county attorney, or of the district
          attorney, where there is no county attorney, to
          actively assist any person with whom such con-
          tract is made, by filing and pushing t0.a speedy
          conclusion all suits for colle@2ion of delin-
          quent taxes, under any contract made as herein
          above specified; provided that where any dis-
          trict or county attorney shall fail or refuse
Hon. Y!.R. Sexton, February 4, 1939, page 3


         to file and prosecute such suits in good faith
         he shall not be entitled to any fees therefrom,
         but such fees shall nevertheless be collected
         as a part of the costs of suit and applied on
         the psy?cnt of the compensation allowed the at-
         torney prosecuting the suit, and the attorney
         with whom such contract has been made is here-
         by fully empowered and authorized to proceed
         in such suits without the joinder and assist-
         ance of said county or district attorneys."
          In this case L-r.De::!itt
                                  has clearly contracted to
practice law. The practice of law is defined by the laws of
this state, and it is made a criminal offense for a person
to practice law if he is not a member of the bar regularly
admitted and licensed to practice. This is set out in Art.
430a of the Penal Code of Texas, which reads in part as fol-
lows :
               *'Sec.1. It shall be unlawful for any
          corporation or any person, firm, or associa-
          tion of persons, except natural persons who
          are members of the bar regularly admitted and
          licensed, to practice law.
              "Sec. 2. For the purpose of this Act,
         the practice of law is defined as follows:
         Whoever (a) in a representative capacity
         appears as an advocate or draws papers,
         pleadings, or documents, or performs any
         act in connection with proceedings pending
         or prospective before a court...
              TSec . 6. Any person, firm, corporation
         or association of persons violating any of
         the provisions of this Act shall be guilty
         of a misdemeanor. If any provision of this
         Act is violated by any person individually
         or by any person or persons representing a
         corporation, or association, or by a corpora-
         tion, the defendant or defendants upon con-
         viction shall be punished by a fine of not
         more than Five Hundred b.,>
                                 c500.00) Dollars nor
         less than One Hundred (.i:lOO.OO)
                                         Dollars.
              **Sec.7. Any agreement by any person,
         corporation, or association in violation of
         this Act shall be illegal...
              "Sec. 8. .A11 laws and parts of laws in-
         consistent herewith are hereby repealed..."
                                         a:-..




Hon.   Vi. R. Sexton, February 4, 1939, page 4



            If there are any irreconcilable conflicts between the
first auoted Statute, Article 7335 fi.C. S., which went into
effect in 1923, and the last quoted statute, Art. 430a P. C.,
which went into effect in 1933, the latter act will control
because of the provision in Sec. 8, and aiso because the
courts hold that in such cases the most recent act rmst pre-
vail. Townsend vs. "errell, 118 Tex. 463, 16 S. X.    (2d)
1063; Citizens' Nat. Rank vs. Del Rio Rank & Trust CO., 11
5 . 1;. (2d) 242; and Ragazine vs. State, 47 Tex. Cr. h. 46,
84 S. V. 832.
          In the contract in question ?:r.DeXitt is to 1're are
                                                        w---'
file and institute... suit" for the taxes and this can on y
be construed to mean that he is to draw pleadings and perform
acts in connection with proceedings pending or prospective be-
fore a court; and under the definition set out in Article 4300
P. C. this is practicing law, and the practice of law by any
one who is not regularly licensed, such as Yr. DeWitt, is for-
bidden and made unlawful. Therefore, as this contract calls
for the performance of anunlawful act, it is illegal and
void. The rule is stated in Beatherston vs. Boxberger, 255
S. 7:.998, as follows:
                 "The law is ,that a promise made in consider-
            ation of an act which is forbidden by law is void;
            put in a different way, a contract is illegal, if
            it violates a constitutional statute or ordinance,
            or if it cannot be performed without the,violation
            of such statute or ordinance.V
          The same rule is expressed in Kennessy vs. Automobile
Owners' Ins. Assn. (Tex. Con!. App.), 282 S. %'. 791, 46 A.L.R.
521; Texas Employers* Insurance Association vs. Tabor (Tex.
                      779; First National Bank vs. Neil (Tex.
Comm. App.) 283 S. Tf:T.
Comm. App.), 10 S. W. (2d) 408; and many other cases.
          ??oTexas case, as far as we can find, has arisen in
which a person who is not a licensed attorney at law has con-
tracted to practice law or perform legal services; but that
question was discussed and decided by the Supreme Court Of
Oklahoma in the case of Crawford vs. XcConnell, 173 Okla. 520,
49 Pac. (2d) 551, in which a person who was not licensed to
practice law had entered into a contract with certain parties
to "audit and investigate taxes assessed against" said par-
ties and "to collect any illegal tax, and... to employ at-
torneys to bring suit... for the recovery of... said taxes";
and the court held that this amounted to a contract to prac-
tice law and as the practice of law by unlicensed persons was
forbidden that such a contract was illegal, and in so holding
*   .




        Hon. Y. B. S,exton,Pebruary 4, 1939, page 5


        the court said:
                      "It is elementary and fundamental law that
                 courts will not enforce or aid in the enforce-
                 ment of, a contract made in violation of law,
                 and relief may properly be refused, even though
                 the invalidity of the contract is not set up as
                 a defense...
                       "The contracts upon which the plaintiff re-
                  lies are asserted to be illegal on the theory
                  that by their context the plaintiff, though not
                  an attorney, has bound himself to engage in the
                  practice of law.
                      "In this state, as elsewhere, the practice
                 of law is governed by statute, and elaborate
                 machinery has been established for the purpose
                 of determining the qualifications of those who
                 seek to serve the public in a professional capa-
                 city. The practice of law by one who has not
                 established his qualifications in the manner
                 prescribed by law is forbidden. Section 4087,
                 c. 0. s. 1921; section 4255, 0. 5. 1931, The
                 ultimate and primary purpose of such statutes
                 is to protect the public. They undertake to
                 maintain a standard of qualifications for those
                 who hold themselves out to advise or assist
                 others in the protection and preservation of
                 their legal rights. The execution Of a con-
                 tract which has for its purpose the performance
                 of an act forbidden by law is illegal. Thus a
                 layman cannot properly bind himself by contract
                 to perform an act which can only be performed
                 by a licensed attorney, nor can he obligate the
                 other party to the contract to pay him com2ensa-
                 tion for the performance of such an act. 13 C.J.
                 424...
                      "...Clearly, we think the plaintiff by his
                 contract undertook to perform a type of service
                 which could only properly be performed by one
                 who had demonstrated his qualifications by ob-
                 taining a license to practice law.';
                  As appears in the caee just quoted, the law in Clkla;
        homa as to the validity of contracts to violate the law is
        the same as it is in Texas, and no doubt the Texas courts
        would make the same holding under the same circumstances.
Hon. -i.2. Sexton, February 4, 1939, page 6


          The courts of Texas have consistently abhorred the
practice of unlicensed persons appearing as attorneys in
court, but if lli-.
                  De'iXttcarried out his contract in this
case he would have to appear in court. In the case of Hark-
ins vs. :‘urphy& Bolanz, 112 S. :':.
                                   136, in which it was held
that an agent could not act as attorney in court for his
principal, the Court Of Civil Appeals at Dallas, quoting
from a Michigan case, said:
              nkttorneys are licensed because of their
         learning and ability, so that they may not
         only protect the rights and interests of their
         clients, but be able to assist the court in
         the trial of the cause. Yet what protection
         to clients or assistance to courts could such
         agent3 give? They are required to be of good
         moral character, so that the agents and officers
         of the court, which they are, may not bring dis-
         credit upon the due administration of the law,
         and it is of the highest possible consequence
         that both those who have not such qualifica-
         tions in the first instance, or who having had
         them have fallen therefrom, shall not be per-
         mitted to appear in courts to aid in the admin-
         istration of justice."
          In the case of l!cAllenvs. Raphael, 96 S. N. 760, the
Court of Civil Appeals at San Antonio said that if the only
signer of a pleading in a district court was a person who was
disqualified to sign as an attorney that such a pleading
should be "treated by the trial judge as a nullity."
          It has been suggested that perhaps the contract is
not illegal because L?r.DeWitt might employ an attorney to
go into court and do the legal work for him; but this sub-
terfuge cannot be resorted to for two reasons, first, be-
cause the contract specifically says that it "i-     personal
services and is not transferable or assignable", and, second,
because if it ,isunlawful for a man to do a thing directly it
is,also unlawful for him to do-it through an agent or employee
indirectly, as is so aptly stated in reference to practicing
law in the case of Cain vs. E'erchantsXatl. Bank & Trust Co.
of Fargo (Sup. Ct. of N. Dak.), 268 N. W. 719, as follows:
               "Since it has no right to practice law
          directly, it cannot do so indirectly by em-
          ploying a licensed attorney to practice for
          it, as that would be a mere evasion of the
          law."
Ron. 1'1.
        B. Sexton, February 4, 1939, page 7


          It has also been suggested that if this contract is
illegal as to those parts that recuire Kr. DeWitt to practice
law, that the balance of the contract should be allowed to
stand, but we feel that the whole contract should fall be-
cause of the rule stated in the case of Hendricks vs. Wall,
277 S. 'J;.
          207, as follows:
               " ...A contract, based upon more than one
          consideration, any one of which is unlawful,
          whether violative of a statute or the common
          law, is not divisible 30 that one of its pro-
          visions may be enforced, blutthe contract as
          a whole is unenforceable and void.::
          This rule had been previously laid down by the Su-
preme Court of Texas in the cases of Kottwitz vs. Alexander's
Representatives, 34 Tex. 689; Reed vs. Srewer, 90 Tex. 144,
37 2. 'A'.
         418; and several other cases.
          Before closing we will consider the opinion of the
Court of Civil Appeals at Port Yorth in the case of Slimp vs.
Wise County, 96 5. W. (2d) 540, whichwe do not think can be,
relied on as a contrary authority to our view. In that case
a contract for collection of delinouent taxes had been made
between Y&se County and Jeff Fox, and the contract was attack-
ed on the ground that Fox was to perform the work of an at-
torney at law but was not licensed as an attorney. However,
the case does not show that the contract had any specific pro-
vision in it for FOX, or any other unlicensed person, to do
acts constituting the practice oftlaw, and we find this signi-
ficant language in the decision:
              "...We do not construe the provision for
         the employment of an attorney at law for the
         purposes mentioned to mean that under proper
         conditions no other kind of person than an at-
         torney at law could be employed. The several
         legislative enactments herein cited were in-
         tended to aid the commissioners' court of the
         several counties to enforce the collection of
         delinquent taxes, but in no way to interfere
         with the very broad powers of discretion given
         them in matters over which they have jurisdic-
         tion, such as the enforced collection of de-
         linquent taxes."
                                       waived the thirty
                                      id not then, nor
          did he ever, insofar as the record shows, fail
          .


    Hon. W. B. Sexton, Ftibruary4, 1939, page 8


              or refuse to file and prosecute suits to enforce
              the collection of delinquent taxes, It is made
              his duty to perform this service, and we hold
              that from the wording of the statute, until he
              shall have failed or refused to file and prose-
              cute such suits, the necessity of the employ-
              ment of another attorney for that purpose has been
              obviated and the court is left to employ any
              suitable'oerson deemed comnetent to do the
              things encumbent upon him under the provisions
              of the several cumulative acts so passed by the
              Legislature to aid in the enforcement of the
              collection of delinnuent taxes." (Underscoring
              ours)
              It is apparent from this language that the court
    did not consider that the contract called for or contemplated
    that Fox was "to file and prosecute suits", but he was only
    "to aid in the enforcement of the collection of delinquent
    taxes." This is clearly shown in the language of the above
    quotation where it says: "the county attorney...did not..,
    fail or refuse to file and prosecute suits..., and we hold
    that from the wording of the statute, until he shall have
    failed or refused... the necessity of the employment of
    another attorney for that purpose has been obviated."
              In the Mse County case the contract did not pro-
    vide that Fox was to "prepare, file and institute. ..suit"
    and was "to enforce by suit", but in the case we are con-
    sidering the contract does provide that Mr. DeWitt is to do
    those things.
              Our answer to your question is that the contract be-
    tween Orange County and R. B. DeWitt, which you submitted to
    us, is illegal and void because PIr.De'Jlitt
                                               is not an attorney
    at law.
                                    Very truly yours

                                  ATTOm\TEYGENERAL OF TEXAS
                          (Sgnd.) Cecil C. Rotsch
                                 BY
                                                  Assistant

    APFROVED:
(Sgnd.) Gerald C. E!ann
    ATTORNEY GENERAL OF TFXAS
