                                                                                           610




       OFFICE        OF THE       AlTORNEY    GENERAL       OF TEXAS

                                     AUSTIN




Honorable Joe Uwm%hik, Comraiaaioaer
Burew OS Lybar statistltis
fastin, Taxa
Dear sir;




Zion   preecsn?ml        ta
on the above %ubj%
                                                        raonrlal samlae         mp5rt-
meatof     n*       86                                    in your letor,         the
                                                      b‘r~tQ)r66Of&6biY66Of
                                                ome with u% %n& I&?.Collln%




          qh6 parsennel :iarvlo% Dep%rtment a% #ndueted by ths
~0~ton ~,mse has been in the nature or nn adjunot to the an-
-&,ayasntwcrat-sddofwm of the cla%%lil%d    edrartlafng seation
or said paper, and h%% been wder th% %up%rvi%ion of I&i%%LO-
mater,  who hes notod aa lntemmdlery brtween phOlpeCtiTs    aa-
plO$W%      6nd     hXll~h~~6B.      Persam    ~seeking    employment       it.tteP-rlaw
MISS Lemaerterwho au&o% a TeoordCI the               personal
                                                          qualifiaatloo%,
feferemes, age, habit%, et%, %$ the applicraat.F'ora %h%rg%
Honorable Joe X'uusahik,page   2


of Two ($2.00)'Dollars, the appliaant,is entitled to a fitteen
word advertisement for aeven aonseautive lnaertlone in the
WWork wanted" bolumn of the classified advertisement seation
of the newspaper. The regular advertising rate f'orsuoh an
insertion is Two Dollar% and Seventy Cents (Q2.70), the Two
(?\2.00)Dollar rate being a speaial oonaeselon for employment
applicant%. The advertisement doe% not state the name, ad-
dress or telephone number of the a,?plicantbut the prospective
employer is direoted to contact Miss Lemaeter so that ahe may
submit to him a aeleated list of appllaants whose qualifloa-
tions she believes to be peculiarly %uited~to the partloular
I;~sition. TM% Work wanted" aolumg contains the $ollaw~g
caption:
          "BBLOYERS, Call .thepress psrsoxUlel
     Servioe Department When you require the
     services of trained office workers, teoh-       I
     nicians, meahanios, mafds, yard-men.,etci
     You can oho%%s.from over three thou%and ap-
     plication%. Just phone Us% ~ema%t8mr,.t ~~., _'
     F. lllli and ~atate~your requirem%nt.%      ,'~
          We are &tber   advised that'in the oase'6i partiaular-
ly worthy but idpeouuious~Job, applioents their advertiisements
vii11be inserted withogt'oharge a% well as the~reoomendations
and services'of Hisa &ema%ter.         ,,.   ':    .
          It would appear that the Fersonnel Servioe.Department
or the zou%ton.~res% differs from the ouatomary conduat of 8m-
ployment Want-ad% only in the additional,service rendered by .'
Miss LemaSt8r to~~boththe prospeotlv8 emplopeers~
                                                and employers.
          In view of the liberel~z&ado&ed     by .the Texas Courts
in construing the implied and incidental powers of corporation%,
we are not prepared to state that the'Houst,onI;ress,
                                                    Company may
not under the above quoted purpose clause of its ohorter conduct
a wP8rSonnel SerViOe Departmentv in aonjunction with its classl-
fied ,r
     advertisement%. ~8 stated in 12 Texas R8VieW 102;
          "In Texss the rule is more often stated
     that implied powers embrace those that are
     usual and customary in the particular business.
     Recognizing this rule~the Commission.of Appeals
     said: *iThatia the usual and customary method
     of operating the business is essentially a ques-
     tion of fact, for,such custom and usage change
\    with time.* Kascb v. Farmers Gin Company, '3S.W.
     (2d) 72..
Eonoroble Joe Eunschik, page 3


          It  is to be noted that krtiole 1302 RSvised Civil
Statutes -of Tpxas, whioh contains en enumeration of the varl-
ous purposes tor which corporations may be ohhrtered in Texas,
contains no provision authorizing a oorporation to be organized
for the purpose of conducting an euployaent ag+vuOy. Such ao-
tivity Woonductad    by a corporation flustbe by way or Incidental
ar collateral business is conjuuotlon with its primry oorporate
FUpO8e.
          The business ofconductim    employment agenOie8 in
Texas are regulated by Chapter l.3,Title G5,.Artieles 5208
through 5221, Revised Civil statutes of Texas, 1925, and by
Chapter 7, Titls 18, srticle  15B16:th~ougl.l593,Fezal Code of
*Texas,iY25. krticle 5208, Revised Civil Statutee, and Artiole
1584,.FenalCode define the tern *employnent agent* in the fol-
lowing identical language;
         **tiploysxentagaat* meana everp person, firm,
    cartnership or association of yersonseagaged in
    the business'ot ~~~istiug employers to seoure m-
    ployees and permms to secure employiacnt..oE'.of
    collecting ikformation regarding ern_oloyersseek-
    ing emp%oyee8 end persons soe&ing es$oyment.
    The tom *employptlntotSice@ tneansevery plaae or
    office rhere.the business of giving iutolligenoe           _
    or Wormation    where eaqloyztentor help may be
    obtained or where the bua:nees of an~eqloy;nent
    agent 18 oarried cm,*
          while the above dsrlnition of "en.qloylr.ent
                                                    agsnta doe8
not use the Wrd floor~oratiou*we call attention to the statu-
tory rule of ~construotlanof the word *person- announced by
drticle 23, Revised Civil 3tatatco of Texss, which reads in
part aa follows:
          *The following meaning shall be given
     to eaoh of the following worda, unless a
     different meaning is apparent from t~he
     corAe~~:
          ". . .
          w2. Qersont in~cludeaI=.
                                 oar~oration.W
          \:fhen                a- tb,?t.
               wo further consid...,.   tb.ereasons which
must have prompted the enactment of the statutes regulating
employment agents, I. 8. the ,votection of the public, apply
..




     z:onorableJoe Kunachik, Page 4


     with equal force to individuals and to corporations, we reach
     tiieconcluslaa that a corporation, when donducting an employ-
     .?entagency a8 an incident to its prltiry corporate purpoae,
     is Itxcenable to the regulation and is required to obtain a
     license, in the sane mauner'as an employzientagency operated
     by fm individual or 81partnership. This construction is
     fcrther fOrtItled by the fact that the exoeptiona provided
     iiithe aOt, hereafter quoted and diSQus8ed expressly refer to
     cor~orationsi .It Vrouldhave heen unnecessary to mention
     corporations in the exceptions, had th8y not been intended to
     be embraoed in the sooptiof the act.
               Artiole 5209, Revised Civil Statutes, and Vtiole
     1555,.Penal Code, set out the exceptions ta,the amployment
     axency law in the following language:

                 WThe provisions of this chapter shall not
         apply to agents who oharge a'fee of'not more
         than ,twedoU.ars for'.registrationonly for pro-
         curi.3.g employment for echoal teachers; nor to
         any department or bureau maintained by this
         Sate,     the wited states Government, or any
         aunici~al government of this state, nor to
         any person, firm, partnership, association
         of person8 or oorporatlon or any offioer, or
         empJ.oyaethereof engaged in obtaining or
         soliciting help from him,~them or it when
         no feesare,charged directly     or indirectly
         the applioant for help or the applicant for
         employm&at;-nor to Iarmers enn~d  stockraisers
         acting jointly or severally in securing
         laborers for their own use where no fee is
         collected or charged directly or indlreotly,
         nor to any assoclstion    or corporation charter-
         ed under the laws of TeXa8 conducting a free
         employment bureau or agencp.n
               Fe do not believe thot the business carried on by
     ~:.iss"&3aateras tbe Fersonnel !zerviaeaenartment of the Bouston
     i-ressfalls within any of the exoertione contained in tb.e fore-
           article. me exception for reagentsv2-.o
     g.oinc,                                       oharge a fee of
     rrot3ore than Two (@.CO) Dollars for registration only for pro-
     cur&; emylogment of school teachersn would clcerly not ar;ply
     to agents who are SngaFed In 0btainin.qemployment for r;ersonS
     other than school teachers. Ihe fact that the applicant for
     ercpL,g!zent
                to the leraonnel~ Service ‘jepartmentis required  to
         .   [
             i*
                                                                             :’
                                                                              !  614
                                                                             ‘---..


/-
     ?            ::onorablsJoe kunschik, Fege 3


                  cay Two ($2.00) Dollars ior the insertion of M advertl5ement
                  in the Iioufxton
                                 Press as a prerequisite to the service offered
                  by said department (In the absence of showing of absolute in-
                  Ybility to pay such Two ($12.00)Dollar oharge) constitutel4,
                  KB believe, a fee for the service of the Yer~onnel.3errice De-
                  r;?rtmentso'thet t&s exaeptlon provided %%en no fees are charg-
                  od directly or indirectlya oould not be applicable to the situa-
                  tion here under consideration. #e are persuaded that the Houston
                  Zress Company has been aattmted by salutary and benevalent mo-
                  tives in establishing the Personnel service Department under
                  the super~lsion~of ?biseLamaster in order to be of real servloe
                  :nd benefit to both employees~aeeking employment and~employers
                  seeking pereona to fill vaaanoiea in their businesses, but
                  nevertheless such Personnel Bervlae Department does aonstitute
                  m employment agency within the terms ,of the statutes and oon-
                  sequently must-be required to aonforxato the provisions of the
                  regulatory laws.
                                                                                       ], :I
                            It ia therefore our 0 inion that the Boustoa Preae         ,   .:
                  Company should be required to '0ii
                                                   tain a liaewze as an employ-
                  .nantagent as oontemplated by the above mentioned statutes.
                                                      Yours very truly
                                                   ATl'GRlwyGESBRALOPTEXA3




                  i7f:eaw



                                   APPROVED=   21, 1941
