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June 23, 1952

Hon. JoA, Phillips Opinion No. V-1470 Chairman, Texas State Board of Public Acco,untancy Re: Duties of the Texas Austin, Texas State Board of Public Acco.untancyupon receiving evidence that an unlicensed individual isholding himself out to the public as a Dear Sir: public accountant.

Your request for an opinion of this office concerns the question ofprosec,utingaperson who holds himself out as a "certified public accountant" and who is performing services generally performed by public acco,untants,b,utwho does not hold a permit to practice public aeco.untancyfrom the Texas State Board of Public Accounta.ncy . Then yo~uask: "(1) Is it the d,utyof o'urBoard to formally bring a complaint toyour office involving the above violations and req,uest that you initiate proceedings, or "(2) Is it the d,utyof o'urBoard to bring.the violations to the attention of the District Attorney or the Co,untyAttorney where the violation was cdmmitted, or “(3).Is it the duty of citizens living in the area where the violation occ:urredto bring the violations to the attention of the District Attorney or County Attorney?" Section 2(a) ofArticle 41a,V,C.S. (Pub1l.cAcco'untan?yAct) ,?rovides ::
"'Practice of Public Accouu:,tincys D A perso ,-ngagesin ti;ce 'practice of publl~cae- '2 ,J&yt, <:.: ,;_: T, 1wi.?hinthe mear~.ing ;i'this Act who,Hon. J.A. Phillips, page 2 (V-1470)

holding himself out to the public as a public accountant, in cons~iderationof compensation received or to be received byhim, offers to perform or does perform, for other persons, services which involve the auditing or examination of financial transactions, books, accounts, orrecords, or the preparation of, or the reporting overhis signature on, financial, accounting.~and related statements." Section 24 of theAct provides: "After the effective date of this Act, any person who shall hold himself out to the public as apublic accountant or shall engage in the practice of public accountancy as same is defined in.Section 2 of this Act, without having obtained a certificate or permit, or any person who shall violate any of the provisions of this Act, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished,by a fine not to exceed Five Hundred Dollars ($5OC.O0), or by imprisonment in Jail for,not more than six months, ment." orby both such fine and imprisonClearly the statute creates an offense against the State, subject to prosecution in the same manner as other misdemeanors, We know of no lawwhich authorizes theAttorney such criminal cases. - of the Constitution of General to represent the State in

Section 21 ofArticle V Texas provides inpart:

"Acounty attorney, for counties inwhich there.is not a resident criminal district attorney, shall be elec~tkdby the qualified voters of each county, who shall'be commissioned by the Governor, and hold his office for the term of twoyears, In case of vacancy the commissioners' Court of the county shall have power to appoint a county attorney until the next general election. The county attorneys shall represent the State in all cases in the District and inferior courts in their respective counties; but if any county shall be included in a district inwhich there shall be a dis-.

Hon. J.A. Phillips, page 

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trict attorney, the respective dutfes of district attorneys and county attorneys shall in sue; counties be regulated by the Legislature. DI
. Articles 25 and 26,V.C.C.P., provide: "Each district attorney shall represent the State in all criminal cases in the district courtsof his district, except in cases where he has been, before his election, employed adversely- When any criminal proceeding is had before an examining court inhis district or before a judge upon habeas corpus, and he isnotified of the same, and is at the ,time within the county where such proceeding ishad, ,heshall represent the State therein, unless prevented by other official duties." "The county attorneys shall attend the 'I terms of all courts inhis county below the grade of district court, and shall represent the State in all criminal cases under examination orprosecution i,nsaid county; and in the absence of the district attorney he shall represent the State alone, orwhen requested, shall aid the district attorney in the prosecution of any case inbehalf of the State in the district court, 10r'
It is seen from the foregoing that it is the duty of the district or county attorney to represent the State in such criminal cases.

It is an established rule that public officers and governmental and administrative boards possess only such powers as are expressly conferred upon them by law or are necessarily implied from thepowers so conferred. Anderson v. Houchins, 99 S.W.2d 1029 Tex. Civ. AppSe,t,bnB~~fvAr~~~~~e~l~ 5V?xS 1936) g 418 1849). I Although authorizes the Board to institute proceedings a&nst any person holding 2 certificate or permit under the act to suspend or revoke the certificate or permit for certain violations, the act does not require or authorize the Board as su>h to file compla.intsagainst persons who dono,thold a certificate or permit. Therefore, s;nce the law imposes no duty upon the Board as su:h to fi.lecomplaints against. .

Hon. J.A. Phillips, page 4 

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persons who practice accountancy without apermit or certificate, itwould not be derelict in its duty for failure to file complaints in such cases.

Article 221,V,C.C.P., provides; "Theaffidavit made before themagistrate or district or county attorney is called a complaint If it charges the

### commission of an offense." Article 

### 415,V.C.C.P., provides:
"No Information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information, Itmay be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or itmay bemade before any officer authorized by law to administer oaths."
It is seen from the provisions of these articles that any credible person~may file the complaint and a credible person is onewho, being competent to testify, isworthy of b~elief. Halbadier v. State, 

### 87Tex. Grim. 129, 220 S.W. 85 (19203. Therefore, 'itis our opinion that any member of the-Board inhis Individual capacity or any other citizen who isa credible person would be authorized to file the complaint.

Article 4la, V.C.S. (Public Accountancy Act) does not require the~,TexasState Board of Public Accountancy to file complaints against persons who are practicing as public accountants butwho have not been issued a certificate or permit by theBoard. However, any member of the Board, individually, or any other citizen who is a credible person may file a complaint charging the commission of this offense. The district or county attorney represents the State In such a casee_. .


### Hon. J.A. Phillips,page5 (V-1470)

Yoursverytruly, APPROVED:
J.C.Davis.Jr. PRICEDANIEL AttorneyGeneral CountyAffairsDivision MaryX.Wall ReviewingAssistant CharlesE.Mathews FirstAssistant Assistant

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