Grbver Sellers                 AXJSTIN11. TEXAS




      Hon. Horace B. Sessions       Opinion No. O-6252
      Securities Commissioner       R0: Whether the Administrator     of the
      Secretary of State            Securities  Division of the Office of
      Austin, Texas                 the Secretary of State is authorized
                                    or permitted under the Real Estate
                                    Dealers License Act to require each
                                    and every applicant for a license    as a
                                    real estate dealer or salesman to take
                                    an examination in order to determine
      Dear sir:                     the competency of such applicant.
                Your letter of September 29, 1944, requesting  the
      opinion of this department on the questions stated therein is
      in part as follows:
                   "This Division has been presented with the ques-
            tion of whether or not the Administrator     of the Se-
            curities   Division  is authorized or permitted under
            the Real Estate Dealers License Act - Title 113-A,
            Article   6573a of the Revised Civil Statutes - to re-
            quire that each and every applicant    for a license  as
            a real estate dealer or salesman take an examination
            in order to determine the competency of such applicant.
                 "This   question   arises     under Sections   8 and9 of
            the Act.
                  "Section   8 requires      that
                   "'Application     for a real estate dealer's     or real
            estate salesman's license        shall contain such other in-
            formatiog as to the applicant          in addition to the
            above described,       as the Admini strator of the Securities
            Division    of the office     of the Secretary of State shall
            require.      The Administrator     of the Securities   Division
            of the office      of the Secretary of State may require
            such other proof through the application           or otherwise
            as its officers       shall deem desirable   with due regard to
            the paramount interest        of the public as to the honesty,
            trtr;$ulness,      integrity,   and competency of the appli-

                  "Section   9 provides      that
                                                                       - .

Hon. Horace B. Sessions,   page 2


     ‘*‘If the Administrator    of the Securities     Divi-
     sion of the office    of the Secretary of State
     is satisfied    that the applicant for real estate
     dealer’s   or real estate salesman’s license       is
     of good business repute and that the business
     will be conducted in an honest, fair,        just, and
     equitable    manner, and uuon comolrins with all,
     pther D ovisions    of the la   and cQ&j,&ions o f
     this AC: a license      shall Thereupon be granted
     by the A&ministrator . . . t
           “The underlined wording above is the basis
     of the proposition   presented to this office  that
     the Administrator   is authorized under the statute
     as it is now written   to require an examination of
     all applicants.
            “We shall appreciate  an opinion   from your of-
     fice   on the following  questions:
     “1. Is the Administrator of the Securities    Divi-
     sion authorized under Sections 8 and 9 or any
     other provisions    of the Real Estate Dealers Li-
     cense Act to require that each and every appli-
     cant for a dealer’s    or salesman’s license take
     either an oral or a written examination before
     receiving  a license?
     “2.    If such Administrator is authorizpd to re-
     quire either an oral examination or a written
     examination, what procedure or administrative
     setup is permitted to be utilized     by the Admin-
     istrator   under the present Real Estate Dealers
     License Act in instituting   such requirement as
     a prerequisite   to obtain a license?M
           Article 6573a,   Vernon’s Annotated Civil Statutes     is
a general statute commonly known and cited as “The Real Esi ate
Dealers License Act”.     For the purposes of this opinion we do
not deem it necessary to quote said statute.      We have carefully
considered the statute, ,and it is our opinion that the Adminis-
trator of the Securities    Division is not authorized under Sec-
tions 8 and 9 or any other provision     of said Act to require any
applicant for a dealer’s    or salesman’s license  to teke either
an oral or written examination before receiving     a license.    In
view of our answer to your first     question, your second question
becomes moot.
            Generally speaking, “under the power of the state to
determine   the competency or capacity of persons engaging in
.’   .




         Hon. Horace B. Sessions,      page 3


         professions   or callings,    the state may require examinations to
         determine the fitness      of licensees     who seek to engage in profes-
         sions or callings~affecting       the public health,      safety or welfare.
         Under this rule, examinations may be made of persons seeking to
         practice,   work, or engage in business as architects;           attorneys
         at law; barbers; certified       public accountants;      locomotive     en-
         gineers or other employees of railroads          in the actual service of
         operating trains;    pharmacists;     physicians    and surgeons      pilots;
         plumbers; school teachers        stationary    engineers;    and o t hers
         whose vocations   are vitally     related to conservi g of the public
         welfare and the public safety.         . .‘I (American !:urisprudence,
         Vol. 33, p. 373).
                     It is stated    in Corpus Juris,     Vol.   37,   P. 238:
                      “In order that a person may be entitled            to a
               license    to engage in a particular        business or exer-
               cise a particular      privilege    it is usually required
               by the statute or ordinance that he shall comply
               with certain prescribed        conditions     or qualifications,
               provided,    of course, such conditions         are reasonable
               and authorized.      Such conditions      may consist merely
               of making a proper application          and paying, or tender-
               ing the prescribed      fee.     But in addition to this an
               applicant may be required          inter alia, to disclose
               the extent and value of his business,            and pay, or
               show that he has paid, all his taxes.             Except where
               the licensing    board or officer       is vested with dis-
               cretionary    power in granting or refusing licenses,
               an applicant,    upon complying with the conditions
               imposed, is entitled       to a license      as a matter of
               right,    and, in some cases       may enforce his right
               by mandamus* But where o c her conditions           are im-
               posed, he is not entitled         to a license    as a matter
               of course by merely paying or tendering the fee or
               tax required.      In the absence of special authority
               therefor,    the licensing     board or officials,       in
               passing on applications        for licenses,     cannot pre-
                scribe conditions     or requirements in the case of a
               particular    application,     in addition to those pre-
                scribed by statute or ordinance,         with which appli-
               cant has already complied.
                      “An applicant may also be required to comply
               with reasonable qualifications       as to his suitability,
               experience,     skill, and ability   to engage in the par-
               ticular   occupation,   or business,   or exercise  the par-
               ticular   privilege,   for which he desires a license,      and
Hon. Horace B. Sessions,   page 4


     undergo an examination for this purpose a He may be
     required to show that he is a person of good moral
     character,   and furnish written recommendations to
     that effect.    In the absence of such a requirement,
     however, if the applicant has complied with other
     conditions,   he cannot be refused a license  because
     of his character or reputation    or previous misconduct.
           *‘An applicant for a license    may be required to
     submit to an examination as to his personal qualifi-
     cations or fitness    to conduct the business or occupa-
     tion for which the license     is desired.    Such examina-
     tion must be conducted in accordance with the rules
     and regulations    prescribed  therefor;   but such rules
     end regulations    must be reasonable,   and not be unrea-
     sonable and arbitrary.”
           If the Legislature   had intended that applicants    for
a dealer’s   or salesman’s license   under “The Real Estate Ileal-
ers License Act” were required to take an oral or written ex-
amination before receiving    a license,  the Legislature  could
have said so in plain language; this it has not done{ with
reference  to applicants   for a dealer’s  or a salesman s license
under said Act.
                                 Yours very truly
                                 ATTORNEY  GENERAL OF TEXAS
                                 By’/s/ Ardell Williams
                                 Ardell Williams, Assistant
APPROVED OCT 10, 1944
/s/ Grover Sellers
ATTORNEY GENERAL   OF TEXAS
APPROVED:OP&NI;fI~CZJC~TTEE
BY:        ,
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