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July 8, 1958 

Honorable 0. L. Sticfcr Opinion No. WW-471 

Acting Commissioner 

Bureau of Labor Statistics Re: The legality of a 

Capitol Station “search fee” being 

Austin, Texas collected by licensed 

employment agencies 

prfo? to the appllcant obtaining and 

Dear Mr. Stiefer: accepting employment. 

The late Mr. M. B. Morgan, former Commissioner of the 

Bureau. of Labor Statistics, requested an opi,nlon from this 

office on May 30, 1958. His request read, in part, as follows: 

,I 

. . .whether a Q.earch feel 

being collected by a licensed employment 

agency from the applicant for placing 

his Iresumef with the Executive Index, 

Inc., a national organization, one half 

of such fee to be retained by the licensed 

agency, the other half sent to the Executive Index, Inc., would amount to a 

registration fee and be in vlolatfon of 

Art. 522la-6, R.C.S., which prohibits a 

fee to be collected before employment has 

teen obtained and accepted by the applicant.” 

He then outlined the plan of operation which prompted 

his request. Essentially it is that licensed employment 

agencies in Texas propose becoming members of an out of state 

cooperative placement organization which operates on a natfonwide basis. 

Working under a franchise agreement with the national 

concern, and in an exclusive territory designated by it, the 

licensed agent sends such organization resumes of selected 

‘applicants, as well as job orders. The home office of the 

ccoperative group then compares this data with similar data 

received from other agencies over the nation, in an effort to 

secure employment for the applicant. 

In order to secure this service the applicant is charged 
Honorable 0. L. Stiefer, Page 2 (WW-471) 

a “search fee” ranging from $15.00 to $30.00 depending upon the 

salary range requested by the applicant. The licensed agency 

retains one half of this fee and remits the other one half to 

the parent organization. 

The applicant must pay the fee prior to obtaining and 

accepting employment. Following employment, if secured by 

this cooperative method, the agency and the national office 

share the placement commission. 

House Bill 387, Acts Slst Legislature, Regular Session, 

1949, Chapter 24.5, Page 453, (codified as Article 52218-6, 

Vernon’s Civil Statutes), defines private employment agents 

10) agencies, in Section 1 (e), as follows: 

“1Private Employment Agent.1 means 

any person in this State who for a fee 

or without a fee offers or attempts to 

procure employment for employees or procure or attempts to procure employees 

for employers except employees as common 

laborers or agricultural workers.” 

Section 1 (b) of the Article defines the term “fee” as 

f0llows: - ^ 

“IFeet means anything of value 

In~zluding money or other valuable consi:jeration or services or the promise 

~;i any of the foregoing received by an 

ea:p:oyment agency from or on behalf of 

an?’ person seeking employment or emo?cyees in payment for any ser,vice, 

-it;t:er dire.ctly or indirectly.” 

ine authority fcr private employment agents or agencies 

tc: ,:h;::ge t’ees for their services is provided in Section 8 of 

Artic:!e 5221a-6. It reads as follows: 

!‘Sec. 8. Private Employment 

Agents or Agencies as defined by this 

A;:‘, a!:.d who are engaged in the business 

bf attempting to procure employment for 

employees or procures or attempts to 

procure employees for employers in 

skilled, professional, or clerical 

positions-ma char e -with the written 

consent of-&Z&L&ant a fee, not to 

exceed forty per cent (4%) of the first 
Honorable 0. L. Stiefer, Page 3 (WW-471) 

The statute is free from ambiguities. The only fee 

wh lch a licensed employment agent or agency is authorized 

to charge and collect from a Job applicant is 40% of the 

first month’s salary as set forth in Section 8 above. 

month’s salary, which may be collected 

from the aoolicant only after employment 

has been obtained and accepted by the 

~~~:iCoap~~~,njemphasis added throughout 

Attorney General’s Opinion O-6879 (1945) spoke 

regarding the legality of certain fees being charged by 

certain employment agencies in Texas. That opinion was 

written in reply to a request submitted to this office by 

the then Commissioner of your department. Three of the 

questions directed to the Attorney General in that request 

are directly related to the problem here. They are as 

follows: 

“a. It has been called to our 

attention that certain employment agencies 

ln this State charge a registration fee, 

that is, when an applicant desires to be 

placed on the agency’s available list the 

applicant pays said agency a fee reg‘ardless 

as to whether or not employment is ever 

given him or her. Is this permitted by the 

statutes? 

“b. Other agencies charge a flat 

z.:nthIy registration fee such as either 

$L.i30 cr $2.00 a month, this sum to be 

;aId by the applicant regardless of 

whether or not employment is obtained, 

and upon the refusal or failure of the 

applicant to pay said registration fee his 

name is withdrawn from the list of avallable employees. Is this permissible under 

t?.e Texas statutes? 

“C. Some agencies, while charging 

a flat registration fee of either $2.00 or 

,$3.00, then upon obtaining and acceptance 

of employment of the applicant deduct that 

from the authorized 30 per cent commission. 

Is this practice permissible under our 

statutes? 

I, 11 

. . . 
Honorable 0. L. Stiefer, Page 4 (WW-471) 

At the writing of that opinion the employment agencies 

were operating under the Texas Employment and Labor Agency 

Law which was House Bill 264, enacted by the 48th Legislature, 

Regular Session, Acts of 1943, Chapter 67, Page 86, and codified 

as Article 5221a-f+, Vernon’s Civil Statutes, 1925, as amended. 

Section 11 of that Article-authorized the agencies to charge fees 

as follows: 

“Sec. 11. . . . emolovment or labor 

This office held, in that opinion, that the fees 

authorized by Section 11: 

“. . are to be paid by the 

applicant or’employee only after the 

employment has been obtained and 

accepted by the applicant. Any fee 

or charges made to or paid by the 

applicant prior to this event is contrary to and ;s an attempt to circwivent 

the statute. . . 0’t 

T,o Att@rney Generalrs Opinion R-257: (1951) the question 

4.~7 trt tYt amount of the fee to be charged in connection with 

:5-,3rri,r~;~ 3 beer 

(Art. 667-5 

dealers permit was answered. The statute, 

(C) V.P.C,), provfdad that each applicant for a 

:.i?xer 117t?.E;e ‘IO o . shall be subject to a fee of five ($5.00) 

z:iZ She applicant shall be liable for no other fees 

oolication fee and the annual license fee required 

It was held, in that opinion: 

II that $5.00 is the only fee 

that may’bi ihar#ed an applicant for a 

beer permit. . . 

Statutes which fix fees are to be strictly construed, 

The Court, in Maore v. Sheppard, 144 Tex. 537, 192 S.W.2d 

559 (citing McLennan County v. Beggess, 

S.W. 346) sa>d: 

104 Tex. 311, 137 

“That the fixing of official 
Honorable 0. L. Stiefer, Page 5 (WW-471) 

fees is a matter of gentrrl legislatien, 

and is a rsubJectr of general legislation 

within the meaning of Articl6 III, Saction 

3.5, above, cannot be qutstiened. There 

are many such enactments in our statutes. 

These statutes have b66n Strictly CQnstrued against allowing a f6e by implicatiOna 

as regards both the fixing of th6 f66, and 

the officer entitled thereto.” 

In State v. Moore, 57 Tax. 307, Mr. JustiC6 Stayten 

said: 

“It is not believed that any 

well considtred case can be found in 

which a public officer has bean permitt6d 

to collect fees unless the same are 

provided for, and the amount thereof 

declared by law.” 

It is a basic rule of law thet statutes should b6 60 

construed as to carry out the legislative intmt and once 

such intent. is ascertained it should b6 given full 6ffeCt. 

Wood v. State, 133 Tex. 110, 126 S.W.2d 4; Simmans 6t al. V. 

Arnim et al., 110 Tex. 309, 220 S.W.66. 

- 

The Court p in Gaddy v. First National Bank of Beaumont, 

115 Tcx. 393, 283 Sod. 472 said: 

“In this case9 we think the act 

itseif is entirely c?ae~s. Where this 

is true, from the ver;; lmguage employed, 

it is not necessary n:’ proper to add or 

to subtract from the statute.” 

Clearly the intent of the Legislature was to authorize 

private employment agencies to charge a placement fee not to 

exceed forty (40) per centum of the applicantrs first month’s 

salary. No other fee of any sort is authorized by the statute 

a.nd under no conditions can the authorized fee or any other fee, 

be charged prior to the applicant’s ebtaining and accepting 

employment. 

In the instant case the “search fee” is charged the 

applicant prier to his ebtaining~and accepting cmpleymcnt and, 

in fact, the only purpose for the f66 iS to 8S6i6t him in 

securing employment. That the parent organization is an out 

of state concern make6 no difference. The whole mod6 of 

operation is designed to accomplish exactly what the statute 
Honorable 0. L. Stiefer, Page 6 (WW-471) 

intended to prevent, that is, the charging of any fet prior to 

the applicant’s obtaining and accepting employment and the 

charging of a greater fee than that authorized by Section 8 of 

the statute. 

The opinion of this office 16 that the charging of a 

“search fee” prior to the applicantts obtaining and accepting 

employment would amount to a registration fee and would be in 

violation of Article 52218-6, Vcrnonls Civil Statutts, which 

prohibits a fee to be collected by a-private employment agency 

prior to the applicant’s obtaining and accepting employment. 

SUMMARY 

A “search fee” being collected by a liC6nS6d 

employment agency from the applicant for 

placing his “resume” with a national organieat ion, one half of such fee to be retained 

by the licensed agency, the other half sent 

to the national organization, would amount 

to a registration fee and it would be in 

violation of Article .522la-6, Vernon’ s Civil 

Statutes, which prohibits a fee to be 

collected before employment has been obtained and accepted by the applicant. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

Befkzze 

Assistant 

.<?PR.OVED .! 

C8 IN-@J COMMITTEE 

.:. C.. ijavis, Jr., Chairman 

Iiiri. Marietta Payne 

Tnm McFarl ing 

Henry Braswell 

Jack Goodman 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. Geppert