       OFFICE OF THE ATTORNEY          GENERAL   OF TEXAS
                              AUSTIN




Bon.     Joe Ibnsohlk   Comnlnsioner
Bureau of Irbop 8&.tirtlor
Aultb,      Torar


Bear Slrl




              TOUT Teoent
partDhnt      on em above
Eon. Joe Kunrtclrik,   Co~~~iosioner,   page 2

     in finding engageWlentsfor oroheetraa. 'B'
     ha8 no authority to fir prices, eta., but is
     lnstruotedby (1' as to the orchestrasthat
     are available @.caEl to b8 sscured, eta. If
     *B(,suaoeede in interestinga person in one
     of *n's' orohsetras,he eske *A' fox one of Its
     contracts. *A* rills out the contract on lte
     regular form and aendsit to *B* who in turn
     has the client sign the oontraat. *B* alao uaual-
     ly colleots a deposit, which is usually made out
     to 'A'. Both the contract and deposit are then
     sent t0 (A’. After the contract is fulfilled
     and the engagement has been played, '~1 charges
     the oroheatra a fee I@ senioee in oonnection
     with the boo-    of tha engagement. 'A' then xe-
     mits one-half of ths rse (or sovm portion thereor)
     to 'B*.
         *Do oontraot is binding until the orcheetra
     leader himself signs It, unless he ha8 delegated
     such authority to *A*. The contrsct form doe8
     not stipulatehow the leader is to conduot his
     orchestrawhile fulfillingthe engagement. The ,
     contract seta forth the length of the eagagemnt,
     e.g., 9 till 12, 0 till 1, eta., ana also men-
     tions the place of the engagement,price to be
     paid, deposit oolleatod, etc., but does not 8tip-
     ulate the type of mualc to be played, number of
     intermlssionsto be taken or when, eta. The
     orchestramsrelg plays and performa in the man-
     ner in vihichit is accustomed,and they may vary
     samewhat the nature of their parfoxmance if they
     viish. If the persm attempts to euperrisethe
     parformancain a mannerwhioh the leader does not
     approve, he is not oompelled to adhere to the
     su~estions made. *gl probebly never ivmes in
     oontaot with the orchestra leader at all, and
     has no su~emieion of any kind over his actions.
     *B* probably will not appear at the function fat
     which the orchestra is engaga6, nor will his neme
     appear on any of the contmots,
          *Do the activities described above come with-
      in the provisions of the Employment A@ncy I&SW,and,
      if SO, HOUltl'A', t3r, or both, be required to ob-
      tain employment agency lioensee before carrying on
      such operations?"
      Hon. Joe Plnaohik, Cvwledoner,   page 3

                Article 6208, Veruon*&iAnnotated Clril~.St&~t-
                                                     .
      utes, read8 as follows:,~
                "The term *Zmploywnt Agcint*'w*s 'erery
          person, firm, partnership'or68aooiat$+ .ofper-
          son8 engaged In the ~busiaeaeof assisting emphyeqs
          to mmu-8 employees,and persaas to s*otu+saplo~-
          melit,or of 001leating htormatloA regmdla&
          emplorera seeking emp+oyee#.a& persum 8eNdag
          employment. The tear %mplo~nt     Office'mea&i
          every plaae or office where the bualneea of giving
          intelligenceor inforntetfon where amplop&    or
          help may be obtained or where the business of @II
          employmentagent la carrieA on. The term 'ixQnml8-
          eionertwan8 the Co~~~~isrionar
                                     ai labor Stetl6tioe
          of the State OS Texas. The term *Beputy  ar'Iaspeot-
          or* means any person who shall be duly authorizeA
          by the Commiesloaerto aat in that  oapaoitr'.*
                          to the 8tatutorydOriniti0nabm 6et
                AcoorU.Ix+g
      out an *EmploymentAgent* fs a parson,firr, partwrrhip
      or associationof persona engageA ia tha busi~esa of
      bringing about JIBemployer-employeeor water-wrvent    re-
      latfonehip between two perscms or s.firm, oorporation,
      partnership,eta,, a8 employer or master and a person ar
      employee or am-rant.
                We quote from Word dcPhrases),mnent     XAltion
      9, page 529, a8 rvihtst




                *Where ovntract is let.for nosk to be done
          by another In wiiiohoontraotaereserves no control
          aver means of its acooinpllshment,but merely as to
          result, employment is indepsmdent one establishing
          relation of luontxaotee*an8 *contra&or*, and not
          of *master* and *servant.*


               -Fe again quote from Words k Phraoea, toluma 9,
      page 2992. as followst




.I.
     Hon. Joe Xhnsohik, Comnisaioner,pa$e 4
'i

                                         l
              Webster define8 employee* aa one who i8
        employed; a *oontraotor* as one who oontraotai
        to do anything. Those ~efinitlonsare very bn-
        eral, but they obrloucly suggeet, applied speo-
        ifioally, that an tunployelr.one who is em,ploye&
        to perform personal asniees and a oontraotor
        one who engage8 to dd a parthlar     thlq~   #a
        idea or personal rervfoe not being   a zmoes8ary
        element in the bargain. In the BtaxkdardMe
        tionary it is said that an employe ia a per-
        who is~emploped;one who work8 ior wage8 or I
        salary, or who ia engaged In the asnloe of an-
        other; a oontractor.isone who exeoutes pla&
        under a oontraot;a muboontraotar i8 6htewhe’,,’
        oontractewiththe prfnofpal    ochntraotor  ti do .
        work embraoed in the latter*8contraot~that.ir,
        obviously, one who oaatxaotil to ezeoute sown itb
        tegral part of the work oorered by the SO-        of
        t&e prfnoipl   oontraot. By the 0ediin-y   I3iotiiop-
        a~weereinfom8dtbatauamployeisone*bo
        work8 for an employer a pormn -workingfor .a.
        salary or wa*S: Utmnilr olortr, workmen, I-          I
        ere, eta. $ that a oomtraotoris QII~who aorit+etQ
        to fUrni8h BupplieI#, or to OoMtrPUt. WiZk 0~'
        emeot built       or perfoa 8ltywerk 011aonfao,              I
        at a 0ertaiD price or rates that   a wbo0ntmMtot
        is one who takes a part or the whole of t&w01                .
        eonl'the prinaiPaloontraatm. quo~lttill~be
        amen, dtht     auy extended analyaia Or the fart             ,(
         lous   lesfoal   definitiona,       that   the 8Qnfffoaat   /
         sl.cumntin the,relation of an employs au& hia
         employer, npealrically aonsidered,is permo!a&
         serrloe, while the signiri0m element In 6uoh
         relation between a oontraotorend his prinoipal
         is the worki aB an entirety, to be peCfoti1y                .
         him& ?a-2 v, St. Croix Power Co., 93 H.W. 850,
         834, 117 wf8.'?6.
                            who hare entire acmtrol .af
               ~~Contxa:aetors
         the work to.be done, and were in no way subjeot
         to the oontrol or direotlon of the person with
         whom they aontmoted, while perfoIPiagt&e Wark .
         they oontreotsdto do for them, are not laboMx8,
         in the MMe   that they were earnin
         pe~eon 8tw ths work to be don6 by fih2-*&~~
         atitate~?laborersor employera,who can be eald'to
         be earning wages of an employer, they must b8
     Joe KtinsohIk,Cormfssioner,Page 5
HCSZI.


    holding such e relation to the eqloyer that he
    can Bi??c?ct and control then in aad about the work
    whioh they are &ofnh;fog him. . . .*
          The term w-anployee8aindLeatespereoae hired to
work ror wages
         .     as the
                  - ..employer may
                                 . direot,
                                    -      and does not
embraoe t;?ecase or tne employmentor a person oarr9lng
on a distinct trade or calling to perform servious tide-
pendent of the control of the employer. CAHPFIIEISV. LAB&
0. S. 25 Fed. 128, 131.
          We are oonstrainedto the opinion that the stat-
utes involvedwere enacted to regulate the tJrpioaland well-
reoognized saploylaentagent's bnslness which roti not in-
clude that of the booking oolnpanyas desorlbed & year
letter.
          The e%a910yAmntagency law oontmaplatasonly the
regulation of the neg,otiationsbetween the employer and em-
ployee, md does sot relate to negotiationsoi independent
oontraotualnature.   The rule of master and aermnt, whether
';hadetails of the work are coatrolLed b9 the independent
ccmtraotoror by 'theperson hiring the work deae, is the
orltarfon'fnpeakingthe dlst,inotien betwsn an eaplloyer-
e3aployee,and an Independentoontraaterrelatltmilhlp.
          Under the facts stated in 9our inquiry,wa tkink
it is alear that the contraatualrefataon between the per-
son for ophoti
             the orohestra furnishedamsi.aand the 1eaUer
oi the orohestra is not one of emploger an& ~emplo9eeor
master and servant, but that of an independentoontraotor-
oontraatorand oontra~otes.
          In view of the Poregoing, you tie reapeottull9
advised that It is the opinion of this department that
the above desoribad adtivitlse do not ocntt,
                                           aitkfn the pro-
visioas oi the uaemplo9mmt aganoy law and neither *A* or
=B* would be requtiad to obtain an eiuplo9mentalgenoylioenee
before oarrying an such opsratiom,
                                                           - -.
                                                                  95


Hon. Joe Eunsahik, Commissioner,page 6

          Trusting that the foregoing fully answers your
inquiry, we are

                                Yours very truly




                                                Willlams
                                               A88i8taUf




              A?TORNEY GENERAL OF TEXAS
