                                                                              611



               OFFICE         OF THE ATTORNEY    GENERAL    OF TEXAS
                                        AUSTIN




   Honorable Orville S. Carpenter
   Chairman and Xrsoutire Direotor
   Texar Unemployment Compenration Commission
   ladin, Texas

   Dear sir:




                                                           on the oonatruo-
                                                           21b of the iie-
    vised        Civil Statut
    haa been reoei                                     Your requeet re-
    oites the IO11



                                               me6 rr0m a cezc
                                               e logs produoed
                                              . X himself per-
                                            llkewlsa engage8
                                           her individuala who
                                         e cutting and hauling

                         the above stated laota, together with
                        your Commlsoioa has demanded of A COQ
                       ntributiona under Texas Unemployment Corn-
    pensatlon Xct on wages payable for eervioes performed by f
    and other individuals ior A company; that A company has re-
    fused to pay the contribution demanded, olaiaing that aer-
    rices performed by I and other individuals do not oonstitute
    employment under the Act mentioned; that you hare requested
    A oompany to 8how to the 6atioiaotiOn OS the Commiaalon that
    the ~rsrvioeaperformed by 1 and other iudiv'iduale do not oon-
    rtitute employment, wages for which are rrubjeot to oontrlbu-
    Mona uuaer the Piot, and that A company haa rafha to make
    any ishowingafter a lapre of more than four month8 time.

“^ __ll..” ._._._” ._ -- _.
Honorable Orville S. Carpenter, Page g


          You state your que8tloa a8 r0110w8:
                TJader the sboye 8tate or raot8,
          doea Seotlon 19 (g) (1) of the Tax68
          UaslPploymeatCompenration Aot (Art1010
          SSSlb-17 (8) (l), Veraon* Texan Clyll
          Statuter, lOi%) operate to m&e the
          renloee perroraed by X and the other
          ladlridusle, eenloelr perfomad ror
          nagee, la the amploymeat or the A,oom-
          PtXifl 18 the COlroli88iOa,  Upon in8titQ-
          tlon or 8ult by the Attorney    Q6aeral
          ror the oolleotioa or ooatributioar
          from A Company, required to make any
          8houiag other than the fact8 pn86at6d
          above, together with a statement of
          the amount of oontx$butioas and pan-
          alties sued ror? .In other w~rdo, JBW
                          re8t it8 oa86 apoa the
          the Collllnireion
          fsllar6 of the A 008ipaayto ehnrto
          th6 8atl8faotioa of the Commlsrloa
          that X and the other  ladirldudL8 h6y6
          been and will oontlaue to be free
          from ooatrol or dfruotloa over thu
          perronnaao6 or tholr u0xvioes, both
          under  the oontraot of 8enio6 and la
          faot?"
          Artiole SSZlb, Seotloa 17 (g) (1). a8 lt now
roada Is as follow8r
               "'&MPLOYMEHT sabjoot to the oth-
          er provi8lons or thlr 8ubreotloa.
          msane serylo6, laoludiag renloe la
          Iaterrtate oommaroe,

          provided that say senioerr perfomei
          by an Individual for ages   shall be
          duemodto be 6mploymeat 8ubje6t to
          thl8 Aot aale   and until it ia
          shown to the 86tisfaotioa Of the aom-
          ai88ioa that suoh indiyidual ha8 been
          end will ooatlau6 ,to be ime rr0m ooa-
          trol or direotdoa over  the perBmaaaos
          or suoh aerrioer both nuder hi6 oon-
          traot of senlee sad la f66t."
                *Artiole   S8881b Seatiioa     S (a);
          PaJIpdnt: On and at’ier    January     1,
                                                               ‘613


Honorable   Orville s. Carpenter,Psge 3


            1936, Contributionsshall accrue and
            become payable by each employerfor
            each calendar year in which he is
            subject to this Act, with respect to
            wages payable for em?loyruxtoccur-
            ring during such oalendor year . . ."
          Section 7 (a) then requires t&-all employers
subject to the Act shall, after January 1, 1936, make the
contributionsas provided by the other portions or the Act.
As to what persons or firms are liable for contribution8
under the Act, we look ror the derinitioaor employer.   AT-
title 5221b, Section 17 (f) (1) and Section 17 (t) (4) de-
fines employer:
                 *Any employing unit which ror
            some portion or a day but not neoes-
            sarily simultaneously,in each of
            twenty (20) difrerentweeks, whether
            or not suoh weeks are or were con-
            secutive,within either the current
            or the preceding oalendar year, has
            or had in employment eight (8) or
            more individuals(irrespectiveof
            whether the same individualsare or
            were empl,oyedIn eaoh such day); . . .
                 "Any employing unit which to-
            gether with one or more other em-
            ploying units, is owned or oontrol-
            led (by legally enforceablemeans or
            otherwise) directly or indirectlyby
            the same interest, or which owns or
            oontrols one or sore other employing
            unita(by legally enforceablemeans
            or otherwise),and which, if treated
            as a single unit with such other em-
            ploying unit, would be an employer
            under paragraph (1) of this subsec-
            tion; . . .*
          ae then refer back to Section 19 (g) (1) (nticle
5221b, 17 (g) (l), Revised Civil Statutes), quoted on page 2
or this opinion, ror the detlnltionof the term employmrmt.
The facts recited by your letter do not affirmative
that such sarvioes are servioes performed f'orwages
                                                                614



honorable Orville S. Carpenter, Page 4


employment of the A company, nor that same are performed
under a aontraat or hire. For aught the raata submitted
show, the contrast may be ior a turnkey job. The law
authorize6 yuu, it you have reaeon to believe that aertafn
individuals are employees aoming within the requirement@
of this partiaulw Aat, to permit the employer to present
evidence to your Commiaslon of the true relationship be-
tween A company, X and the at&r individuala. This you
have attempted to do by requesting the A oo&Kny to~shor
to the Commission whether such Individuala mentioned In ;lour
letter are employees of the A company. At this junation, we
comumnt that in our oplnnionnotice to the A company given
iour months ago to appear and establish the r8latlooship 0r
the individuals msntloned in your letter appear8 to 118to
have been sufrlalsnt time ror the A company to have aomplied
if it had 80 desired.
          You hare asked ii the Comml8slon may rest its
                      or A oompany to show to the eatisraa-
aase upon the f(iiltIr8
tton of the Conmission that I and ths other individuals have
been and will continue to be free from aontrol or A.
          The 46th Legislature ha8 provided in Artiole
5221b, Section 12 (6) as hollows:
               "In the event the Att0rn8y Cen-
          era1 shall ii18 suit or a claim ror
          aontributlons, penalties or Interest,
          a8 provided in this Aat, and attach or
          rile as an exhibit any report or audit
          of such employer, and an afrldavlt
          made by any member of the Texas Unem-
          ployment Compensation Commission, or
          any representative or the Comm&881oa,
          that ths aontrlbutions, penalties or
          interest shown to be due by said report
          or audit are past dns and unpaid, that
          all payments and credits have be83 al-
          lowed, then, aales the party resisting
          the same shall rile an answer in the
          Sam8 tom and manner as provided by
          Artiale 3736, Revised Statutes oi Texas
          of 1925, as amended by Chapter 239,
          Act8 or the Regular session 0r the
          Forty-second Legislature, said Audit
Eonoribl. Onills         S. Carpanter, Pag8 5


             or report shall bo taken a8 prime
             raoie 8vldenoo thereor, and the pro-
             seedings Of said UtiOlO  U8   hereby
             madr applioable to suita to oollsot am-
             tWr~pion8, psnaltler or interest here-
                    ..
In tier 0r thlr authority, ii uo amwer to the petiti0u be
riled and the arrldarlt meets tho roqulrements or the ltatPt88,
the rrwornaooount maker a prima taoie ease. It will support a
judgment.
           On the other &and it the C~rrnisslanriles a petition
oontainin&$a 8worn aOOOU.Ut and a worn denial  ir filed by the
d8i8ndMt there is a burden apon the Comm.irs~onand it8 attor-
ney8 to 8hOW mr8 than that A OonrpMy failed to make My 8hOw-
ing berore the Comnlrsion.
             ?h8     dofinitlon or      ‘onpl.0      ing   Unit" and ‘8Ep1Oyer”
@88   the working ba8i8 for (Lets
                                lnination Of liability. Until
tha COiWBi88iOushow8 that + and other individual8 ars poriol!m-
iug remi     for A oompany ror wage8 or under a oontradt or
hire them 18 nothing in eridenor to 8u8taia a judgment against
A Ooir@ny. we prarume that your audit or th8 booka or A oom-
pany will sh0w tho money or wages it hi38pald, the number of
p8rSOn8 ~081v1&5 it and th8 bay8 Or weeki  Of OSplO~t&.

             There     mU8t   be   a 8hOWlEg Of tba iaOt8 neoesaary               to
OOn8titat8     bB “8IBplOr8r’       r8lfAtiOll8hipbefOr  th8 OOWt my
how if the finding     ot the                     18 ba88d UpOn anf 8TidenOe.
                                       COaPri88lOII
Laok of 8Ueh proor would probably ro8ult in the OOurt8 riding
that the Co~amireionloted arbitrarily in making it8 finding.
Pr00r t&t   wa 88 were   paid to I ror 88nioe8  would  be raffialent
to discharge-%it   8 burden 0r proof ar to him, or pr00r that   hl8
8emio88   were perfOrm     under a OOntraOt Of hfrs. BL)WOvU, the
oBr8 rlnding that ho perrowsd 88l'ViOeSunder a OOntra8t WOtid
not be 8tIfiiOi8ut,8inoe the oontraot might be on8 whlah would
render hir an independent ooutraaotor. Sinoe your iaot 8ittIatiOu
8hOW8 neither a paymant Of wag88 , nor semi088    perrormed undrr   a
oontraet 0r hir8,~it does not di8alOS8 a prlaa    raoir oarr, sad
your qtmstion    mu8t be answered negatively. The 8worn   aooount
w0uld, or oourse,~rarleot the amunt 0r oOntrlbatiOn8, prualtle8
and interest claimed.
