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                                                        July      8,       1958


          Honorable   0. L. Sticfcr                                             Opinion        No. WW-471
          Acting Commissioner
          Bureau of Labor Statistics                                            Re:         The legality     of a
          Capitol   Station                                                                 “search    fee” being
          Austin,   Texas                                                                   collected     by licensed
                                                                                            employment agencies
                                                                                            prfo?    to the appll-
                                                                                            cant obtaining      and
           Dear Mr.             Stiefer:                                                    accepting     employment.

                   The late Mr. M. B. Morgan, former Commissioner       of the
           Bureau. of Labor Statistics,    requested  an opi,nlon from this
           office  on May 30, 1958.     His request  read,  in part,  as follows:

                                       .   . .whether
                                            ,I
                                                         a Q.earch feel
                            being collected        by a licensed     employment
                            agency from the applicant           for placing
                            his Iresumef with the Executive             Index,
                            Inc.,   a national      organization,     one half
                            of such fee to be retained            by the licensed
                            agency,     the other half      sent to the Execu-
                            tive   Index,    Inc.,   would amount to a
                            registration      fee and be in vlolatfon          of
                            Art. 522la-6,       R.C.S.,   which prohibits       a
                            fee to be collected         before    employment has
                            teen obtained       and accepted      by the appli-
                            cant.”

                    He then outlined       the plan of operation   which prompted
           his request.     Essentially       it is that licensed  employment
           agencies    in Texas propose       becoming members of an out of state
           cooperative    placement     organization   which operates   on a natfon-
           wide basis.

                     Working under a franchise      agreement with the national
            concern,    and in an exclusive   territory    designated   by it,   the
            licensed    agent sends such organization      resumes of selected
           ‘applicants,     as well as job orders.      The home office   of the
            ccoperative     group then compares this data with similar         data
            received    from other agencies   over the nation,      in an effort    to
            secure    employment for the applicant.

                             In order            to secure     this            service        the applicant     is   charged
Honorable     0.     L.   Stiefer,     Page 2        (WW-471)



a “search    fee” ranging from $15.00 to $30.00 depending upon the
salary   range requested  by the applicant.   The licensed agency
retains   one half of this fee and remits the other one half to
the parent organization.

          The applicant   must pay the fee prior                  to obtaining     and
accepting    employment.     Following employment,                  if secured    by
this cooperative      method, the agency and the                  national   office
share the placement commission.

         House Bill     387, Acts Slst Legislature,        Regular Session,
1949, Chapter 24.5, Page 453, (codified           as Article    52218-6,
Vernon’s    Civil   Statutes),   defines   private   employment agents
10) agencies,     in Section   1 (e),   as follows:

                    “1Private     Employment Agent.1 means
           any person in this State who for a fee
           or without    a fee offers     or attempts    to
           procure   employment for employees        or pro-
           cure or attempts       to procure   employees
           for employers      except employees as common
           laborers   or agricultural      workers.”

           Section        1 (b)   of   the Article      defines   the   term “fee” as
f0llows:                                                                     -    ^

                      “IFeet means anything       of value
           In~zluding money or other valuable           con-
           si:jeration     or services    or the promise
           ~;i any of the foregoing        received   by an
           ea:p:oyment agency from or on behalf            of
           an?’ person seeking       employment or em-
           o?cyees      in payment for any ser,vice,
           -it;t:er dire.ctly    or indirectly.”

           ine authority    fcr private   employment agents or agencies
tc: ,:h;::ge   t’ees for their   services  is provided  in Section 8 of
Artic:!e     5221a-6.    It reads as follows:

                      !‘Sec. 8.     Private   Employment
           Agents or Agencies          as defined    by this
           A;:‘, a!:.d who are engaged in the business
           bf attempting        to procure    employment for
           employees       or procures     or attempts     to
           procure      employees    for employers      in
           skilled,      professional,      or clerical
           positions-ma         char e -with the written
           consent      of-&Z&L&ant            a fee,    not to
           exceed forty       per cent (4%)       of the first
Honorable   0.   L.   Stiefer,   Page 3   (WW-471)



        month’s   salary,  which may be collected
        from the aoolicant     only after  employment
        has been obtained    and accepted    by the
        ~~~:iCoap~~~,njemphasis    added throughout


        The statute      is free from ambiguities.    The only fee
wh lch a licensed     employment agent or agency is authorized
to charge and collect       from a Job applicant   is 40% of the
first  month’s    salary   as set forth in Section   8 above.

         Attorney    General’s    Opinion O-6879 (1945) spoke
regarding    the legality      of certain   fees being charged by
certain   employment agencies        in Texas.    That opinion was
written   in reply to a request         submitted   to this office  by
the then Commissioner        of your department.       Three of the
questions    directed    to the Attorney      General  in that request
are directly     related   to the problem here.        They are as
follows:

                  “a.   It has been called      to our
        attention     that certain   employment agencies
        ln this State charge a registration            fee,
        that is, when an applicant        desires    to be
        placed on the agency’s       available    list    the
        applicant     pays said agency a fee reg‘ardless
        as to whether or not employment is ever
        given him or her.        Is this permitted       by the
        statutes?

                  “b.    Other agencies     charge a flat
        z.:nthIy   registration     fee such as either
        $L.i30 cr $2.00 a month, this sum to be
        ;aId by the applicant         regardless   of
        whether or not employment is obtained,
        and upon the refusal        or failure    of the
        applicant     to pay said registration        fee his
        name is withdrawn from the list           of avall-
        able employees.         Is this permissible      under
        t?.e Texas statutes?

                  “C.    Some agencies,    while charging
        a flat    registration    fee of either    $2.00 or
        ,$3.00, then upon obtaining        and acceptance
        of employment of the applicant          deduct that
        from the authorized       30 per cent commission.
        Is this practice       permissible   under our
        statutes?
                  I,. . . 11
Honorable      0.   L.    Stiefer,          Page 4        (WW-471)



         At the writing   of that opinion     the employment agencies
were operating    under the Texas Employment and Labor Agency
Law which was House Bill       264, enacted by the 48th Legislature,
Regular Session,     Acts of 1943, Chapter 67, Page 86, and codified
as Article    5221a-f+, Vernon’s   Civil  Statutes,   1925, as amended.
Section    11 of that Article-authorized      the agencies  to charge fees
as follows:

                      “Sec.       11.   .    .   . emolovment            or labor




         This office   held,   in that                    opinion,        that      the   fees
authorized   by Section    11:

                  “. .     are to be paid by the
        applicant    or’employee     only after  the
        employment has been obtained         and
        accepted    by the applicant.      Any fee
        or charges made to or paid by the
        applicant    prior    to this event is con-
        trary to and ;s an attempt to circwivent
        the statute.      . . 0’t

            T,o Att@rney Generalrs     Opinion R-257:     (1951) the question
4.~7trt tYt amount of the fee to be charged in connection                with
:5-,3rri,r~;~ 3 beer dealers    permit was answered.        The statute,
(Art.     667-5 (C) V.P.C,),      provfdad    that each applicant     for a
:.i?xer 117t?.E;e ‘IO o . shall    be subject     to a fee of five    ($5.00)
          z:iZ She applicant    shall be liable      for no other fees
                    oolication  fee and the annual license        fee required


            It was held,          in that        opinion:
                      II            that $5.00 is the                  only   fee
            that    may’bi       ihar#ed  an applicant                  for   a
            beer    permit.        . .

         Statutes  which fix fees are to be strictly   construed,
The Court,    in Maore v. Sheppard,  144 Tex. 537, 192 S.W.2d
559 (citing    McLennan County v. Beggess,   104 Tex. 311, 137
S.W. 346) sa>d:

                         “That    the   fixing       of     official
Honorable      0.   L.   Stiefer,      Page 5     (WW-471)



        fees is a matter of gentrrl           legislatien,
        and is a rsubJectr       of general      legislation
        within   the meaning of Articl6          III,   Saction
        3.5, above,  cannot     be qutstiened.         There
        are many such enactments         in our statutes.
        These statutes     have b66n Strictly          CQn-
        strued against     allowing     a f6e by implicatiOna
        as regards   both the fixing        of th6 f66, and
        the officer    entitled     thereto.”

            In State     v.   Moore,    57 Tax.    307,   Mr. JustiC6   Stayten
said:

                  “It is not believed     that any
         well considtred      case can be found in
         which a public      officer has bean permitt6d
         to collect     fees unless   the same are
         provided    for,   and the amount thereof
         declared    by law.”
            It is a basicrule of law thet statutes       should b6 60
construed   as to carry    out the legislative     intmt   and once
such intent. is ascertained       it should b6 given full     6ffeCt.
Wood v. State,    133 Tex.    110,   126 S.W.2d 4;  Simmans   6t al. V.
Arnim et - al.,  110 Tex. 309, 220 S.W.66.

        The Court p in Gaddy v. First                National    Bank of Beaumont,
115 Tcx. 393, 283 Sod. 472 said:

                     “In this case9 we think the act
            itseif   is entirely   c?ae~s.    Where this
            is true,    from the ver;; lmguage     employed,
            it is not necessary      n:’ proper  to add or
            to subtract     from the statute.”

        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 applicantrs         first  month’s
salary.    No other fee of any sort is authorized          by the statute
a.nd under no conditions      can the authorized     fee or any other fee,
be charged prior      to the applicant’s    ebtaining    and accepting
employment.

             In the instant   case the “search    fee” is charged    the
 applicant      prier   to his ebtaining~and   accepting    cmpleymcnt and,
 in fact,      the only purpose for the f66 iS to 8S6i6t him in
 securing      employment.    That the parent organization       is an out
 of state      concern   make6 no difference.    The whole mod6 of
 operation       is designed   to accomplish  exactly    what the statute
Honorable     0.   L.   Stiefer,   Page 6 (WW-471)



intended   to prevent,   that       is, the charging   of any fet prior   to
the applicant’s    obtaining        and accepting   employment and the
charging   of a greater    fee      than that authorized   by Section   8 of
the statute.

          The opinion    of this office     16 that the charging      of a
“search    fee” prior    to the applicantts      obtaining    and accepting
employment would amount to a registration              fee and would be in
violation     of Article    52218-6,  Vcrnonls    Civil   Statutts,   which
prohibits     a fee to be collected       by a-private     employment agency
prior    to the applicant’s     obtaining    and accepting     employment.

                                     SUMMARY

              A “search    fee” being collected        by a liC6nS6d
              employment agency from the applicant            for
              placing   his “resume” with a national          organi-
              eat ion, one half of such fee to be retained
              by the licensed     agency,     the other half sent
              to the national     organization,       would amount
              to a registration       fee and it would be in
              violation    of Article     .522la-6,  Vernon’ s Civil
              Statutes,    which prohibits       a fee to be
              collected    before   employment has been ob-
              tained and accepted        by the applicant.

                                         Very   truly      yours,

                                         WILL WILSON
                                         Attorney General           of Texas




                                          Befkzze
                                               Assistant


.<?PR.OVED
         .!

C8 IN-@J COMMITTEE

.:. C.. ijavis, Jr., Chairman
Iiiri. Marietta  Payne
Tnm McFarl ing
Henry Braswell
Jack Goodman

REVIEWEDFOR THE ATTORNEY GENERAL
BY: W. V. Geppert
