Hon. J. E. Lyles, Commissioner
Bureau of Labor Statistics
Capitol Station
Austin 11. Texas                               Opinion   No.   WW-654

                                               Re:   The applicability    of Attorney
                                                     General’s   Opinion No. O-1269
                                                     (1939) under Article     5221a-6,
                                                     Vernon’s   Civil Statutes, and
                                                     whether a theatrical     agent, in
                                                     furnishing models to various em-
                                                     ployers would be required to
                                                     obtain an employment       agency
                                                     license in accordance      with
                                                     the provisions    of Article   5221a-6,
                                                     Vernon’s   Civil Statutes.

Dear Mr.   Lyles:

       The recent request from your office for our opinion propounds two
questions.  One question relates to a prior opinion issued by this office
while the second relates to a current fact situation with which your office           is
concerned.

       For clarity and reference the paragraphs in which the facts are stated
will be numbered 1 and 2. Following each of the two paragraphs    the questions
which you have asked and which relate to that paragraph will be stated and
numbered.

                1. “John Doe maintains an office and carries
           on the business   of providing programs      of enter-
           tainment to persons,    associations,    conventions,
           etc.  Such entertainment    is produced by singers,
           musicians,  dancers,    comedians,    and various other
           performers   under the direction of John Doe.         The
           person, association,    convention,   etc. outlines to
           John Doe the general type of program desired,          or
Hon. J. E. Lyles,   Commissioner,    Page   2   (WW-654)



           agrees to accept the type of programs         recom-
          .mended by John Doe. The person, association,
           convention,    etc., does not interview or pay any
           money to any of the performers,         but deals
           directly and only with John Doe,        The price of
           the program is a lump sum which is fixed by
           mutual agreement       between John Doe and the
           person, association,      convention, etc. desiring
           the entertainment.      John Doe selects perfor-
           mers to produce the type of program contracted
           for, and pays the performers        the price agreed
           upon between John Doe and the performers.
           John Doe has exclusive       charge and control of
           the performers,      is present, and directs the
           program     throughout its rendition.”

         You than restated   the question which was asked of this office previously
and which was answered by Attorney General’s        Opinion No. O-1269 (1939).
Essentially,    you requested an opinion as to whether, under the facts stated
in paragraph 1, John Doe would be required to obtain an employment        agency
license.

           You now ask substantially    the following      question:

                1. Is the ruling as stated by Attorney General’s
           Opinion No. O-1269 (1939)applicable,   under the
           present Employment     Agency Law, Article   522la-6,
           Revised Civil Statutes, to the above fact situation?

     Since~ the-prior opinion of this ~office was written, the John Doe Agency
has undertaken other activities  in conjunction with those set out above.  You
have outlined them substantially  as follows:

                  2. John Doe is now also actively engaging in
            booking models for various shows.       The following
           method of placement       is used by John Doe: A
            company, which desires the service of a model or
           -models, will send its representative     to the agent
          (John Doe) to select models to be used for the
            company’s    show. The company representative
            interviews   the models and selects those needed
            for the particular    show for which the representa-
            tive is interviewing.     The company representative
Hon.~ J. E. Lyles.      Commissioner,    Page    3   (WW-654)



             then furnished the names of the models he has
             chosen to the John Doe Agency.       John Doe then
             contacts the models involved and requests that
             they report to the company’s     place of business
             for the show. The models do the engagement
             for an agreed fee which is ~paid by the John Doe
             Agency.     The agent in turn bills or invoices the
             company benefiting from the service.       The ac-
             tivities of the models are directed by the com-
             pany which is sponsoring     the show. The com-
             pany also has complete control of the show which
             it is staging.   The agent has no control of the
             models,    once they are placed, nor of the show,
             as they do in the case of entertainment     acts.

        In connection with the additional       facts   as stated in paragraph   2 above,
your   second question is as follows:

                   2 . . . “whether this agent is furnishing em-
             ployees to employers      for a fee whereby he
             would be required to obtain an smljloyment
             agency license in accordance       with. the provi-
             sions of Article    5221a-6,  Re.vised Civil Statu-
             tes?”

             We answer      both your questions      in the affirmative.

       House 3ill.3g7,  ActsSlst  Legislature,   Regular Session,  1949, Chapter
Z&5. page 453, codified as Article 5221a-6,    V.C;S.,  land known as the “Texas
Private Employment     Agency Law,” regulates     the operation of private employ-
ment agents in Texas.

       Attorney General’s    Opinion O-1269 was written at a time when the “Texas
Employment      Agency Law,”     as set out in Articles   5208 through 5221, Vernon’s
Civil Statutes of 1925, as amended, and Articles        1584 through 1593 of Vernon’s
Annotated Penal Code, was applicable.         That opinion held that the agent or en-
tertainment    entrepreneur,   as described   in paragraph 1 above, did not come within
the purview of the then applicable       “Texas Employment       Agency Law” for the
reason that no employer-employee         or master-servant     relationship   resulted be-
tween the entertainers     and the person, clubs, conventions      etc., desiring the
entertainment.

       All   of these   articles   have since been repealed      by the Legislature   and the
Hon. J. E. Lyles,       Commissioner,    Page 4      (WW-654)



only Article which relates to your present questions is Article   522la-6,  V.C.S.
There is nothing in this present law, however, which purports to make it
applicable in instances where an employer-employee    relationship   is not in-
volved.

       Section l(e) of Article     5221a-6   defines   private    employment   agents   or
agencies as follows:

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

           Other    definitions   in Section    1 in.clude:


                 (4 * ” The term ‘person’ means an indivi-
           dual, partnership,  association,  corporation, le-
           gal representative,  trustee, trustee in bankruptcy,
           or receiver.


                (b). “‘Fee’ means anything of value including
           money or other valuable consideration     or services
           or the promise of any of the foregoing received by
           an employment    agency from or on behalf of any per-
           son ,seeking employment    o* employees   in payment
           for any service,  either directly or indirectly.


                (c). “%mployer’   means any person               employing
           or seeking to emp-loy any employee.


                @a). “‘Employee’~       means    any person performing
           or seeking to perform        work    or service of any kind
           for hire.


                 (h).     “‘Agent’ shall mean a private         Employment
           Agency       as defined by this Act.”

       Based on the foregoing  statutory   definition of a “private employment
agent” and the other definitions included in the Act, it is clear that the scope
of regulation is limited to employees    and employers,    or where an employee-
.




    Hon. J. E. Lyles,   Commissioner,    Page   5   (WW-654)



    employer     relationship  results or is intended to result, and not to other relation-
    ships such as independent contractors.       Black’s Law Dictionary   at page 618
    points out that the term     “servant”  is synonymous    with “employee”    and “master”
    is synonymous      with “employer”,    and further that the term  “employee”    must
    be distinguished    from  “independent contractor”.

            In the facts which you have set forth in paragraph 1, the John Doe Agency
    has exclusive    charge and control of the performers,      rather than the person, asso-
      . .
    ciation, convention,   etc., desiring the entertainment.      From the facts stated no
    employee-employer       relationship  results between the performers     and the conven-
    tion, etc., nor was such relationship     intended to result.    Many cases have set
    forth definitions   or rules in distinguishing   the master-servant   relationship    from
    an independent contractor,      but perhaps one of the best and simplest     definitions
    is that set forth in Shannon,et al vs. Western Indemnity Company,         et al, 257 S. W.
    522 (Tex. Corn. App. 1924):

               ‘1. . . When one is employed by another, it may be
               generally    said to be in the relation of servant to
               master,    or as an independent contractor.     This
               being true, the courts in nearly every instance have
               undertaken to determine the relation of the person
               employed by another by first deciding whether or
               not such person was an independent contractor.        If
               he was found not to be such under all the facts and
               circumstances,      then he was classed as a servant
               or employee      of his employer.  . .

                “‘No better test can be applied than to say that the
               ,relation~ of master and servant sexists where the
               master    ,retains or .exercises the power -of control
               in directing,    not merely the end sought to be accom-
               plished by the employmerr-of      another, but as well the
               means and ,details of its accomplishment;       “not only
               what shall be done, but how it shall be done.““’

               (Emphasis    added)

          Under these principles,   it is apparent that the John Doe Agency under the
    facts contained in paragraph one is not furnishing     “employees”    to the associa-
    ho**,  conventions. etc., but said entertainers   are under the exclusive   charge
    and control of John Doe. Assuming      the facts to be as you have stated them in
Hon. J. E. Lyles,   Commissioner,     Page    6   (WW654)



paragraph one, the Private Employment   Agency Law does not apply and the
holding in Attorney General’s Opinion No. O-1269 is still applicable.

        In connection with the facts set forth in paragraph two, the situation is
different   and an employee-employer     relationship results between the models
furnished by the John Doe Agency and the company desiring the service         of the
models.     The activity of the John Doe agency in the method of operation des-
cribed in paragraph two comes clearly within the scope of the definitions       set
forth in the Private Employment      Agency Law and the ~purposes of that Act and
we find no exceptions which would exempt such an agency or operation from the
requirements     of that Act.  For a similar holding your attention is invited to
Attorney General’s      Opinion No. WW-653.



                                    SUMMARY



           1.   The Texas Private Employment        Agency Law,
                Article  5221a-6;  V.C.S.. is not applicable to
                a person operating as the John Doe described
                in paragraph 1 of your request, and the hold-
                ing in Attorney General’s    Opinion No. O-1269
                is still applicable under the present employ-
                ment agency law.

           2. An agent, in furnishing models to various em-
              ployers as described i,n paragraph   2 of your
              request, would be ~reqnired to obtain an employ-
              ment agency license in accordance    with the
              provisions  of Article 5221a-6, V. C. S.



                                                    Very    truly yours,



                                                    WILL WILSON
                                                    Attorney General




                                                       Morgaq,/Nesbitt
                                                       Assistant
Hon J. E. Lyles,   Commissioner,   Page   7   (WW-654)



MN/fb
APPROVED
OPINION COMMITTEE

C. K. Richards,    Chairman

~Charles D. Cabaniss
Tom I McFarling
Milton Richardson
W. Ray Scruggs

REVIEWED   FOR THE ATTORNEY          GENERAL
BY:  W. V. GEPPERT
