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\\‘ll.l. \\‘(I..S(>.\‘ \ I”,‘,, I:.\ 0:Y ,:I.:.\ ,a:I:.\1. 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 appll

### cant 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 onMay 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., anational 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 invlolatfon 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 anatfonwide 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 homeoffice 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 chargedHonorable 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 whofor 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 ~;iany of the foregoing received by an ea:p:oyment agency from or onbehalf 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!:.dwhoare 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 firstHonorable 0. L. Stiefer, Page 3 (WW-471)

The statute is free from ambiguities. The only fee a licensed employment agent or agency is authorized whlch to charge andcollect from a Job applicant is 40% of the first month’s salary as set forth in Section 8above.

month’s salary, which maybe 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 inTexas. 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 amonth, this sumto 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. Someagencies, 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 30per 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 andLabor Agency Lawwhich wasHouse 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 11of 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,oAtt@rney Generalrs Opinion R-257: (1951) the question 4.~7 trttYt amount of the fee to be charged in connection with :5-,3rri,r~;~3beer (Art. 667-5 dealers permit was answered. The statute,

(C) V.P.C,), provfdad that each applicant for a :.i?xer117t?.E;e‘IOo
. shall be subject to a fee of five ($5.00) z:iZ Sheapplicant 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, 144Tex. 537, 192S.W.2d 559 

### (citing McLennan County v. Beggess, S.W. 346) sa>d: 104Tex. 311, 137

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

fees is amatter 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 manysuch 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, 57Tax. 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 abasic 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. Woodv. State, 133Tex. 110, 126 S.W.2d 4; Simmans 6t al. V. Arnim et al., 110Tex. 309, 220 S.W.66.

- The Courtpin Gaddyv. First National Bank of Beaumont, 115Tcx. 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 aplacement fee not to exceed forty (40) per centum of the applicantrs first month’s salary. Noother fee of any sort is authorized by the statute a.ndunder 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 make6no difference. The whole mod6of operation is designed to accomplish exactly what the statuteHonorable 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 bySection 8of the statute.

The opinion of this office 16that the charging of a
“search fee” prior to the applicantts obtaining and accepting employment would amount to a registration fee andwould 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 organieation, 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, WILLWILSON Attorney General of Texas

Befkzze Assistant

.<?PR.OVED

.! C8IN-@J COMMITTEE

.:. C..ijavis, Jr., Chairman Iiiri. Marietta Payne TnmMcFarling Henry Braswell Jack Goodman REVIEWED

FORTHEATTORNEYGENERAL BY: W.V. Geppert