Honorable Jay A. Phillips     Opinion No. WW-239
Chairman, Texas State Board
  of Public Accountancy       Re:   Is the Texas State Board
1810 Rank of the Southwest          of Public Accountancy
  Building                          authorized to hold hear-
Houston 2, Texas                    ings for the purpose of
                                    Initiating a complete
                                    Investigation as an
                                    appropriate step of pro-
                                    ceedings instituted for
                                    the purpose of cancelling
                                    or suspending any certifi-
                                    cate or permit granted by
Dear Mr. Phillips:                  the Board?
          Your letter for an opinion from this office poses
the question: is the Texas State Board of Public Accountancy
authorized to hold hearings for the purpose of Initiating a
complete investigation as an appropriate step of proceedings
instituted for the purpose of canoelling or suspending any
certificate or permitgranted by the Board?
          We quote in part from your letter:
         "It has been the poliay of the Board to
    hold hearings when matters come to our attention
    which we believe to be sufficiently important to
    warrant a complete investigation.
         II    . The Board has interpreted Section 23
    of the &blic Accountancy Act of 1945 to permit
    hearings, and further, It considers hearings
    simply an appropriate step in making fnvestlga-
    tions. . . .
         "When we have had hearings in the past, we
    have sought to have witnesses appear to give
    testimony In respect of their knowledge pertaining
    to matters being lnqulred Into. Also, at the
    hearings we have invited the person complained of
    to appear and such person has been permitted to have
    his attorney with him. It is always explained to
    the person complained of that he is not required to
    testify under oath."
Honorable Jay A. Phillips, Page 2 (WW-     I.


          The Public Accountancy Act has been codified as
Article 41a, Vernon's Civil Statutes and, Insofar as this
opinion is concerned, the pertinent parts of said Act
provide as follows:
          Section 4 establishes .the Texas State Board of
Public Accountancy.
          Section 5. "The Board shall administer
     the provisions of this Act.',TheBoard . . , may
     adopt such rules as it deems neoessary for the
     orderly conduct of its affairs. The Board may
     promulgate, and may amend from time to time,
     rules of professional conduct appropriate to
     establish and maintain a high standard of inte-
     grity in the profession of public accountancy,
     after notice Taoall holders of valid permits to
     practice public accountancy in this state. . . ."

          The notice sets forth the proposed rules, and/or
amendments, and those receiving such notice vote upon the
proposal. The Board then announces the results of the
voting. The rule or amendment shall not be operative until
approved by a majority of.those voting.
          Section 22. "The Board shall have ~thepower
     to institute proceedings against any person holding
     a certificate or permit under this Act to revoke or
     suspend the certificate or permit of such person
     who shall be charged and found guilty of:
          "(a) The practice of any fraud or deceit In
     obtaining a certxficate or a permit;
          "(b) Any gross negligence or misconduct in
     the practice of public accountancy;
          l!(c) Violation of any of the provisions of
     this Act or any of the rulesor regulations promul-
     gated by the Board."
          Hearings or investigations by administrative
agencies are generally incidental to their functioning; they
are modes of arriving at the facts of a case. 1 Tex. Jur.
sup. 111, Administrative Law and Procedure, Sec. 27.
          In many situations the,exerclse or performance of
a statutory power or duty by an agency 1s dependent upon the
existence or non-exlstenoe of c~ertainfacts, and it is
plainly necessary that the agency first ascertain whether
Honorable Jay A. Phillips, Page 3 (WW-,    1.


the requisite facts exist in order that it may thereafter
take such action as may be proper, In the light of the facts,
to effectuate the purposes,of the statute which It Is charged
to administer. 1 Tex. Jur. Sup. 113, Administrative Law and
Procedure, Sec. 30.
          Under Article 41a, Vernon's Civil Statutes, supra,
the Texas State Board of Public Accountancy is charged with
the administration of'said Act. It is the duty of the Board
to determine for itself whether it shall request the Attorney
General to file suit, in the name of the Board as plaintiff,
against the person complained of as defendant, for the pur-
pose of cancelling or suspending said person's certificate or
permit to practice accountancy In Texas.
          In order that the Board may arrive at a satisfac-
tory determination of the need for a lawsuit to be filed by
the Attorney General upon request of the Board, the Board
must be adequately apprised of the facts concerning the case
under study. The hearings are either investigatory or
designed to permit persons who may not have been reached in
a previous process of consultation and conference to come
forward with evidence. The purpose is not to try a case, but
to enlighten the Board, and to protect the private interests
against uninformed and unwise action.
          Accordingly you are advised that the Texas State
Board of Public Accountancy is authorized to hold hearings
in connection with its investigation as to whether proceed-
ings should be instituted for the purpose of cancelling or
suspending any certificate or permit granted by the Board.


                           SUMMARY

             The Texas State Board of Public
             Accountancy Is authorized to
             hold hearings in connection with
             its investigation as to whether
             proceedings should be instituted
             for the purpose of canoelling or
             suspending any certificate or
Honorable Jay A. Phillips, Page 4 (WW-       1.


              permit granted by the Board.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas


                               BY
                                    Marvin R. Thomas, Jr.
                                    Assistant
MRT:jl
APPROVED:
OPINION COMMITTEE:
H. Grady,Chandler, Chairman
Mary Kate Wall
Wm. R. Hemphill
Roger Daily
REVIEWED FOR TKE ATTORNEY GENERAL
BY:
     Geo. P. Blackburn
