### Auwrxrw. TXXAS 76711

October 6, 1975 

### OverruledByJM-399 The Honorable Jackie W. St. Clair Commissioner, Texas Department of Labor and Standards Box 12157, Capitol Station Austin, Texas 78711 Opinion No. H- 708 Re: Who is required to be licensed as an auctioneer.

Dear Commissioner St. Clair: You have requested our opinion concerning several questions which pertain to the recently enacted Auctioneer Regulatory Act. Acts 1975, 64th Leg., ch. 320, p. 827 (codified as V. T. C.S. art. 8700). Specifically you ask whether an auctioneering corporation must be licensed under the Act, and if so, whether employees, directors, officers, and owners of such corporations must also be licensed. Inaddition, you ask whether the license fee may be prorated. The Act provides inpart:

Sec. 1.B. ‘Person’ means an individual, partnership, company, corporation, association, or other group, however organized.

. . . Sec. l.D. ‘Auctioneer’ means any person who, for another, with or without receiving or collecting afee, commission, or other valuable consideration, sells or offers to sell property at auction.

. . . Sec. 11. (a) Whoever acts as an auctioneer as defined inthis Act without first obtaining alicense commits a Class B misdemeanor. Thus, the Act includes corporations within the term auctioneer and requires a license of such organizations. Inour opinion, a corporation which engages inthe

p.3055The Honorable Jackie W. St. Clair - page two (H-708)

business ofauctioneering must obtain alicense under theAct. However, we can discern no intention onthe part ofthe Legislature to require licensing of employees, directors, officers, or owners ofa licensee corporation. We note that article 4413 (29bb), V. T. C.S., the Private Investigators and Private Security Agencies Act, would also permit the licensing of corporations and clearly would not require a formal license ofits employees. See section 33of:article 4413 (29bb), regarding registration of employees. In the absence of statutory language tothe contrary in article 8700, we do not believe the Legislature intended to require duplicative licenses for a corporation and its employees. Inour opinion the license ofthe corporation inures to the benefit ofthose actually engaged in auctioneering, just as their conduct as well as that of other employees may form the basis for a denial, suspension, or revocation ofthe corporation’s license. V. T. C.S. art. 8700, sec. 7. Your second question is whether license fees may be prorated if issued for less than ayear. Section 4 of article 8700 provides inpart: (a) The annual fee for each auctioneer’s license issued by the commissioner to a resident ofthis state is $100. The annual fee for each auctioneer’s license issued by the commissioner to a nonresident is $300. The commissioner shall issue the license upon receipt ofpayment ofall license fees. All licenses expire annually onthe last day ofDecember of each year and shall be renewed upon the receipt ofthe written request ofthe licensee and the required license fee.

. . . InAttorney General Opinions M-580 (1970) and M-1107 (1972) this Office ruled that thelack ofany language providing for proration oflicense fees indicated that such fees could not be prorated. However, the statutes involved contained mandatory language as to the amount tobe paid and didnot use the term “annual fee. ” We believe the use ofthat term in section 4 requires proration in this instance. Unlike the provisions involved inthese prior opinions, section 4 does not require the payment ofa certain sum with each application; rather, an annual rate is provided. Thus, where the license is issued for a duration ofless than one year, proration would inour view be appropriate.

p.3056The Honorable Jackie W. St. Clair - page three (H-708)

SUMMARY A corporation engaged inauctioneering must obtain alicense under article 8700, V. T. C.S. Employees, owners, directors, and officers ofa licensee corporation are not required to obtain a license so long as their auctioneering activities are onbehalf ofthe corporation. Auctioneer license fees should be prorated. Very truly yours,

DAVID M. KENDALL, First Assistant

Opinion Committee jad:

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