Honorable M. 0.' Flowers Secretary of State Austin, Texas

Dear Sir: Attention: Mr.Wallace Scott OpinionNo. O-2513 Re: Does the perf&tion of an.appeal
as pi+ovidedIn~Sectlon..15, Article 6573a,Vernon's Annotated Civil Statutes, operate to sui@erid oP supersede the order of dancellafion of a dbaler's license inade"bythe Secretary of State at a hearing?

.' Your letter of August 8th, requesting an opinion of this Department, reads as follows:

"In thh early part of 1940 a real estateGaler's license was~'granted

by this office to I&."; C. W. East of Amarillo, Texas.. dffice, Thereafter,due to cijmplaints recefveabg"this the said C.W. East'was notified that a hearing Vith respect to such complaintswould be held to determine whettieror not the license previously Issued him should be cancelled.

"Such hearingwas held on or about the 13th day of June; 1940 and thereafter an orderwas enteredby this division cancelllng such license. Thereafter,. the said C'.

W. East under the provisions of Section 15 filed an appeal in the pistrict Court of Potter County, his home county. "Assumingthat the provisions of the Real Estate Act were properly followedwith respect to such hearing and that Mr. East's apPea1 has been duly perfected, this division would appreciateyour advice as to whether or not the perfection bf such appe%iloperates to suspenKor supersede the order of cancellatiofi cancellirig

Mr:East's license mad& by this department at.such hearing, 6r,~in btherwords, 1~s. the satd,

Mr. Eist entitled to operate as a real estates' d&ler'.'under'

the kuthbrity givefihlm~'by‘suchlicense after' siiizh order of eancellatlonand after an appeal to the court has been perfected."Honorable M, 0. Flowers, page 2 O-2513

The question of suspension of a judgmentof the distrfct court is no% before us~'incbnnectionwith your request, but"bnljr

whether under the facts as stated, thk pe?f&c%ing of tinappeal from~an order of the Secretary of'State suspends'the order-'of

revocation entered tinder"the provlsions"ofthe statute, This as we see"it is solely a qtiestiohof legislative interit, assutifng

the valfaity of'theReal Estate Lic'ense Act, Atiticl.9 6573a,VePnon's Civil Statutes,under which act this dealer's licensewas origfnallygranted.

Article 6573, Vernon's Civil Statutes, containing twehty-two se&for&, provfdes for the licensing of all 'Peal e'state dealers engaged in such buslness'and places the administrative dutle'sof enforcing the provIsIons thereof in the office of the SecretaPg of-'State thrbugh its administratlveoffice* created by the act and known as the AdmlnYstrator 'bfthe SecurltiesDivision of the Office of the Secretary of State.

Sectfon 5* Subdivision (c) of the law provide3:

"TheAdmfnistrator of the Securities-Division 1s~' hereby empowereil

to examinewItnesseD and adminlstep oaths, and ff shallbe hfs duty to investigatepersons~doing bc,sin&ssin real estate in this State to ascertainwhether they ape violating any of the pyovlkions of this"Act and to keep such yecords and minutes as shallbe necessary to an orderlydispa%ch of business."

Section 11, SubdivisIons (1 - 17) set forth the grounds upon Which t,kelicense of a personwithin the provisions of the act may be suspended,revoked or the reriewal thereof refused. It fur',ther

provides that no action,of the act shallbe construe5 to Pelieve aE.y

pel:sori

tire company from civfl liability or criminal prosecutionunder We 8ct or untierthe laws of the State.

.,SectfoEs 12 and 1 pl-ovfde for notice and hearing oti charges presented t,o revoke or suspenda license, a% which hearihg witnesses may be s,ubpoenaed and a~record is required to be made of tbefp swo~rt testimonyand of the proceedings. l

Section 15, APtfcle 6573a of said statutes,provides:
"(ala Any rear'estatedealer, real estate salesman, owner,'or‘subdiH.der'aggrievedby any decision or the Secretary of State tiy file wi%hin thirty (30)days thereafter in the Diktrict Court iki the boun%ywherb his prfnclpal pletceof btitifness is situated, a petitlofi against the Secretary of"S%ate officiallyas defendatit, alleging Uiiereln Ln bbief letafl the action and detilsfon complafned 6f and for an order dfyec%.ing the SecPetaPg of State to license theHonorable M. 0. Flowers, page 3 O-2513

a'pplicant

or grant an owner or subdividera permit, as the
case inay

be. Upbn service of the sumnibns upon the Secretary of State, returnablewithin ten (10)days from XtsKdate, the Secretary of Stat& shall on or before the return day file
an answer. The case shallbe tried in the District Court de novo, upon its' m6rlts.
"(b)

. The District Court may, upon Bpplicatloti'of eitherparty and upon due notice given, advance the c&se tinthe socket. Frbm the decision of theDistrict-'Court,
an appeal may be taken to the Court of CivilAppeals by eitherparty, as in other cases; and no bond shallb@' requiredby the Secretary of; Sttite. A judginent in ftivor '.' of the plaintiff shall,not'~bar after one gear a'new application"'by

the plaintiff for a license, nor shall a judgiiient in favor of the plaintiff prevent the Secreta+g of State from"thereafterrevoking or refusing to lidensezsuchperson for any proper causewhich may thereafteraccrue or be dfscovered. The court'shallhave full power to dispose of all costs#"

Section 21, Article 6573a of the statutes,provides:
"(a) Any pers'bn,?.'or agent,',officGr,

or employeebf any coinpany,

acting as a real estate dealer or real estate sixlesman

within the meaning of this AEt, without first havingbeen licensedby the Admlnisttiator of the-securities DlvIsion 6f the office of the Secretary" of,State, and every officer, agent, or employee of any company, and every other person~who knbwlngly'authorizes,directs, or aids ih the publication,aclvertisement, alstribution, or circulatlbn of any false statement or repre&entation~conc&rnlngany land OF subdivision offered,for sale or lease, Andyevery person who, with knowledge that any .adver%lsement, pamphlet, prospectus, or letter concerning tinyland or subdivision contains any written statement that Is false or fraudulent issues, circulates,publishes, OF distributes the same, or shall cause the same to be issued, circulated,published,
or distributed, or who, in any other respect, wilfully violates OP fails to complywith any provisions of this Act, or:who in any other respectwllfully violates 01" fails, omits OP neglects to obey, observe or complywith any order,permit, decision, demand, or requirement of the Admlnistrtitor of the SecuritiesDivision of the office of~the Secretary of State under this Act as herein provided, shallupon conVIction thereforbe bentenced to pay a fine df'not more than Five HundredDollars ($500) or .Fmprisontiefit ln'the county jail for not more than one year or both such fine and imprisonment."- .

Bonorable M. 0. Flowers, page 4 O-2513

It is provided in Section 17 of the act that'all licenses issued shall 'expire December 31 of each year at mldt-iight,

and that applications for renewal of licensesmay be made betweenNovember 15 and December 31.

Actssimilar %o that of theReal Estate DealersAct under consideration,granting to State Boardsor Departments jurisdictionof violationsof its provisions.'for the purpose of enforcing the publ.ic health and welfare have been upheld by the courts. :If the Legislature in its wisdom finds evils prevalent and existing

**in** the business of those engaged in real estate transactions in theirdealings with the publicto the extent of enacting such Iaws~asmay be necessary to proper regulation and con%r01,~ It can hardly be questibned that It is
a valid exercise of the police powers of the State,

1% is generally conceded that the right and power to grant a license to exercise a particularvocation implies-and includes the authority to suspend or revoke It, And i%"has been held that a person accepting a license from the State -' lmpliedlgagrees to scbmi,s to ,%hetribunals created by the State todetermine his fitness %o continue enjoying the privilege grantedo See Marx v. Matthews, 270 S-W. 586.

Proceedings of this nature, coutits

as not being "judicial" have been held by our but quasi-judicialas applied to
an act of an executive officerwho, in the exercise of his functions, is required to passupon facts, and'to determine his action by the facts found. I% is also apparent that a license issued to a dealer on %he' payment of the sum requiredunder the provisions of the Real Es&'i:e Dealers Act is in the nature of a specialprivilege required as a condition precedent to the" right to carry on his busin~ess, and was not either a contract or
a vested ~igbt to do business. See 17 R. C, L, page 476, par. 5; Prater et al, v, Storey, 249 S.W. 871; Baldacchi v. Goodlet, 1% SOW. 325.
Ttie

province OP Section 15 of the act Is to afford an aggrieved dealer or person who has had his license ,revoked, a remedy for judiciallydete:rmlningthe correctness. of the order finding him guil%,yof having violated the law.' If he ispermitted to pursue the occupationuntil the case is finallydetermined upon Its merits, it would amount to a nullification af the duly authorizedand exercised func%lons of the Secretary of State. The true purpose and effectiveness of the law could easily be defeated by onewho has had his license revoked,by filing his petitionwithin the thirty day period and thereafter fail to prosecute his appeal.

After a person's license has been duly revokedunderHonorable M. 0. Flowers, page 5 O-2513

this law, it Is clear that the law : places e burdenupon the petitibner to brtng the matterup for review endnot upon the Secretary of State. It will be seen that the statutemakes it possible for him to file hiss petitlon'thenext day; it authorizes summonsupon the"Secretarg of'State;'returnablewithin ten days thereafter~; end he may further, at the"'tlme of fllri'ig his petition,make eppllcetlon to advance the case in theDls-. trict C'ourt. Such procedure specificallyauthorizedby Sec. 15 of the act, with other provisions thereof"'expressly denying relief from criminal prosecution for any acts committed thereunder, evidencesan intent on the~pert of the.'Legislature to " deny petitioner the'right to operatepending a.'judicial review. We are convinced"~'that the.remedyaccorded the aggrieveddealer
was so intended ana shouldnot operateunjustly to delay the '. hearing of his case provided he pursues the remedywith diligence.

_. It 1.9, therefore, the opinion of thisDepartment that the timely filing of a petition against the Secretary of State under the provisions of Section 15, Article 6573a, by en aggrieved dealer to"revlew the factsupon which an order revoking his license has been duly made, does notof Itself operate to suspend or supersede the order of revocation.

Yours very truly,

ATTORNEY GENERAL OF TEXAS

By s/wm. J. R. KMg Wm. J. 'R.King Assistant

WJRK:AMM:wc

APPROVED AUG 27, 1940 s/GroverSellers FIRST ASSISTANT ATTORNEY GENERAL
Approved Opinion CommitteeBy s/BWB Chairman