                               Auwrxrw.       TXXAS        76711



                                       October   6, 1975
                                                                   Overruled By JM-399

The Honorable Jackie W. St. Clair                              Opinion No.    H- 708
Commissioner,    Texas Department of
    Labor and Standards                                        Re: Who is required to be
Box 12 157, Capitol Station                                    licensed as an auctioneer.
Austin, Texas   78711

Dear   Commissioner           St.    Clair:

      You have requested our opinion concerning      several questions which pertain
to the recently enacted Auctioneer     Regulatory Act.   Acts 1975, 64th Leg.,  ch.
320, p. 827 (codified as V. T. C.S. art. 8700).     Specifically you ask whether an
auctioneering   corporation    must be licensed under the Act, and if so, whether
employees,    directors,   officers, and owners of such corporations   must also be
licensed.   In addition, you ask whether the license fee may be prorated.

       The Act provides            in part:

                      Sec. 1. B.  ‘Person’ means an individual,  partnership,
                      company,   corporation, association, or other group,
                      however organized.

                      . .      .

                      Sec. l.D.   ‘Auctioneer’ means any person who, for
                      another, with or without receiving or collecting a fee,
                      commission,    or other valuable consideration, sells
                      or offers to sell property at auction.

                      .   .    .

                      Sec. 11. (a) Whoever acts as an auctioneer                 as defined
                      in this Act without first obtaining a license              commits a
                      Class B misdemeanor.

Thus, the Act includes corporations    within the term auctioneer  and requires a
license of such organizations.   In our opinion,  a corporation  which engages in the




                                                 p. 3055
The Honorable     Jackie W.   St.   Clair    - page two (H-708)



business   of auctioneering   must    obtain a license   under the Act.

      However,   we can discern no intention on the part of the Legislature            to re-
quire licensing of employees,      directors,    officers,   or owners of a licensee
corporation.    We note that article 4413 (29bb), V. T. C. S. , the Private Investi-
gators and Private     Security  Agencies     Act, would also permit the licensing of
corporations   and clearly would not require a formal license of its employees.
See section 33 of:article   4413 (29bb),   regarding registration       of employees.     In
the absence of statutory language to the contrary          in article 8700, we do not
believe the Legislature    intended to require duplicative licenses          for a corporation
and its employees.     In our opinion the license of the corporation          inures to the
benefit of those actually engaged in auctioneering,         just as their conduct as well as
that of other employees     may form the basis for a denial,         suspension,    or revocation
of the corporation’s   license.   V. T. C.S. art. 8700,       sec. 7.

     Your second question is whether license fees may be prorated               if issued   for less
than a year. Section 4 of article 8700 provides in part:

                           (a) The annual fee for each auctioneer’s      license issued
                     by the commissioner        to a resident of this state is $100. The
                     annual fee for each auctioneer’s        license issued by the com-
                     missioner      to a nonresident   is $300.    The commissioner
                     shall issue the license upon receipt of payment of all license
                     fees.     All licenses  expire annually on the last day of Decem-
                     ber of each year and shall be renewed upon the receipt of the
                     written request of the licensee and the required license fee. . . .

      In Attorney General Opinions M-580 (1970) and M-1107       (1972) this Office
ruled that thelack   of any language providing for proration of license fees in-
dicated that such fees could not be prorated.      However,  the statutes involved con-
tained mandatory language as to the amount to be paid and did not use the term
“annual fee. ” We believe the use of that term in section 4 requires proration in
this instance.   Unlike the provisions  involved in these prior opinions,    section 4
does not require the payment of a certain sum with each application;       rather, an
annual rate is provided.    Thus, where    the license is issued for a duration of less
than one year, proration would in our view be appropriate.




                                            p. 3056
The Honorable   Jackie   W.   St.   Clair   - page three       (H-708)




                                    SUMMARY

                         A corporation    engaged in auctioneering       must
                    obtain a license under article 8700, V. T. C. S.
                    Employees,    owners,    directors,   and officers    of a
                    licensee  corporation   are not required to obtain a
                    license so long as their auctioneering       activities   are
                    on behalf of the corporation.       Auctioneer   license
                    fees should be prorated.

                                                Very   truly   yours,




DAVID   M.   KENDALL,     First     Assistant




Opinion Committee

jad:




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