T 

June 23, 1952 

Hon. Jo A, 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.untancy upon receiving evidence that 

an unlicensed individual is holding himself 

out to the public as a 

Dear Sir: public accountant. 

Your request for an opinion of this office concerns the question of prosec,uting a person who holds himself out as a "certified public accountant" and who is 

performing services generally performed by public acco,untants , b,ut who does not hold a permit to practice public 

aeco.untancy from the Texas State Board of Public Accounta.ncy . 

Then yo~u ask: 

"(1) Is it the d,uty of o'ur Board to 

formally bring a complaint to your office 

involving the above violations and req,uest 

that you initiate proceedings, or 

"(2) Is it the d,uty of o'ur Board to 

bring.the violations to the attention of 

the District Attorney or the Co,unty Attorney 

where the violation was cdmmitted, or 

“(3). Is it the duty of citizens living 

in the area where the violation occ:urred to 

bring the violations to the attention of the 

District Attorney or County Attorney?" 

Section 2(a) of Article 41a, V,C.S. (Pub1l.c Acco'untan?y Act) ,?rovides :: 

"'Practice of Public Accouu:,tincys D A 

perso ,-ngages in ti;ce 'practice of publl~c ae- 

'2 ,J&yt, <:.: ,;_: T, 1 wi.?hin the 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~ideration of compensation 

received or to be received by him, offers to 

perform or does perform, for other persons, 

services which involve the auditing or examination of financial transactions, books, accounts, or records, or the preparation of, 

or the reporting over his signature on, financial, accounting.~and related statements." 

Section 24 of the Act provides: 

"After the effective date of this Act, 

any person who shall hold himself out to the 

public as a public 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." 

or by 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 law which authorizes the Attorney 

such criminal cases. - 

of the Constitution of 

General to represent the State in 

Section 21 of Article V 

Texas provides in part: 

"A county attorney, for counties in which 

there.is not a resident criminal district attorney, shall be elec~tkd by the qualified voters 

of each county, who shall'be commissioned by 

the Governor, and hold his office for the term 

of two years, 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 in which there shall be a dis- 
. 

Hon. J. A. Phillips, page 3 (V&1470) 

trict attorney, the respective dutfes of district attorneys and county attorneys shall in 

sue; counties be regulated by the Legislature. 

D I . 

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 in his district 

or before a judge upon habeas corpus, and he 

is notified of the same, and is at the ,time 

within the county where such proceeding is had, 

,he shall represent the State therein, unless 

prevented by other official duties." 

"The county attorneys shall attend the 'I terms of all courts in his county below the 

grade of district court, and shall represent 

the State in all criminal cases under examination or prosecution i,n said county; and in 

the absence of the district attorney he shall 

represent the State alone, or when requested, 

shall aid the district attorney in the prosecution of any case in behalf of the State in 

the district court, 10 r' 

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 the powers so conferred. 

Anderson v. Houchins, 99 S.W.2d 1029 Tex. Civ. AppSe,t,bnB~~fvAr~~~~~e~l~ 5V?xS 

1936) g 418 I 1849). 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.ints against persons who do no,t hold a 

certificate or permit. Therefore, s;nce the law imposes 

no duty upon the Board as su:h to fi.le complaints against 
. . 

Hon. J. A. Phillips, page 4 (V-1470) 

persons who practice accountancy without a permit or 

certificate, it would not be derelict in its duty for 

failure to file complaints in such cases. 

Article 221, V,C.C.P., provides; 

"The affidavit made before the magistrate 

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, 

It may be sworn to before the district or county 

attorney who, for that purpose, shall have power 

to administer the oath, or it may be made 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 one who, being competent to testify, 

is worthy of b~elief. Halbadier v. State, 87 Tex. Grim. 

129, 220 S.W. 85 (19203. Therefore, 'it is our opinion 

that any member of the-Board in his Individual capacity 

or any other citizen who is a credible person would be 

authorized to file the complaint. 

Article 4la, V.C.S. (Public Accountancy 

Act) does not require the~,Texas State Board 

of Public Accountancy to file complaints against persons who are practicing as public 

accountants but who have not been issued a 

certificate or permit by the Board. 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 

case e 
_. . 

Hon. J. A. Phillips, page 5 (V-1470) 

Yours very truly, 

APPROVED: 

J. C. Davis. Jr. 

PRICE DANIEL 

Attorney General 

County Affairs Division 

Mary X. Wall 

Reviewing Assistant 

Charles E. Mathews 

First Assistant 

Assistant 

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