Hon. J. E. Lyles, Commissioner

Bureau of Labor Statistics Capitol Station Austin 11.Texas Opinion **No.** WW-654 Re: The applicability ofAttorney General’s Opinion No. O-1269 (1939) under Article 5221a-6, Vernon’s Civil Statutes, and whether a theatrical agent, in furnishing models to various employers would be required to obtain an employment agency license in accordance with the provisions ofArticle 5221a-6, Vernon’s Civil Statutes. Dear Mr. Lyles: The recent request from your office for our opinion propounds two questions. One question relates to a prior opinion issued bythis office while the second relates to a current fact situation with which your office is concerned. For clarity and reference the paragraphs inwhich the facts are stated will be numbered 1and 2. Following each ofthe two paragraphs the questions which you have asked andwhich relate to that paragraph will be stated and numbered. 1. “John Doe maintains an office and carries

onthe business ofproviding programs of entertainment to persons, associations, conventions, etc. Such entertainment is produced by singers, musicians, dancers, comedians, and various other performers under the direction of John Doe. The person, association, convention, etc. outlines to John Doe the general type ofprogram desired, orHon. J. E. Lyles, Commissioner, Page 2 (WW-654)

agrees to accept the type ofprograms recom- .mended by John Doe. The person, association, convention, etc., does not interview or pay any money to any ofthe performers, but deals directly and only with John Doe, The price of the program is alump sum which is fixed by mutual agreement between John Doe and the person, association, convention, etc. desiring the entertainment. John Doe selects performers to produce the type ofprogram contracted for, and pays the performers the price agreed upon between John Doe and the performers. John Doe has exclusive charge and control of the performers, is present, and directs the program throughout its rendition.” You than restated the question which was asked ofthis office previously and which was answered by Attorney General’s Opinion No. O-1269 (1939). Essentially, you requested an opinion as towhether, under the facts stated in paragraph 1, John Doe would be required to obtain an employment agency license. You now ask substantially the following question:

1. Is the ruling as stated byAttorney General’s Opinion No. O-1269 (1939)applicable, under the present Employment Agency Law, Article 522la-6, Revised Civil Statutes, to the above fact situation? Since~the-prior opinion ofthis ~officewas written, the John Doe Agency has undertaken other activities in conjunction with those set out above. You have outlined them substantially as follows:

2. John Doe is now also actively engaging in booking models for various shows. The following method ofplacement is used by John Doe: A company, which desires the service ofa model or -models, will send its representative to the agent (John Doe) to select models to be used for the company’s show. The company representative interviews the models and selects those needed for the particular show for which the representative is interviewing. The company representativeHon.~J. E. Lyles. Commissioner, Page 3 (WW-654)

then furnished the names ofthe models he has chosen to the John Doe Agency. John Doe then contacts the models involved and requests that they report to the company’s place ofbusiness for the show. The models dothe engagement for an agreed fee which is ~paidby the John Doe Agency. The agent in turn bills or invoices the company benefiting from the service. The activities ofthe models are directed by the company which is sponsoring the show. The company also has complete control ofthe show which it is staging. The agent has no control ofthe models, once they are placed, nor of the show, as they do in the case ofentertainment acts. In connection with the additional facts as stated in paragraph 2above, your second question is as follows:

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. . . “whether this agent is furnishing employees to employers for a fee whereby he would be required to obtain an smljloyment agency license in accordance with.the provisions ofArticle 5221a-6, Re.vised Civil Statutes?” We answer both your questions in the affirmative. House 3ill.3g7, ActsSlst Legislature, Regular Session, 1949, Chapter Z&5. page 453, codified as Article 5221a-6, V.C;S., landknown as the “Texas Private Employment Agency Law,” regulates the operation ofprivate employment agents in Texas. Attorney General’s Opinion O-1269 was written at a time when the “Texas Employment Agency Law,” as set out inArticles 5208 through 5221, Vernon’s Civil Statutes of 1925, as amended, and Articles 1584 through 1593 ofVernon’s Annotated Penal Code, was applicable. That opinion held that the agent or entertainment entrepreneur, as described inparagraph 1above, did not come within the purview ofthe then applicable “Texas Employment Agency Law” for the reason that no employer-employee or master-servant relationship resulted between the entertainers and the person, clubs, conventions etc., desiring the entertainment. All ofthese articles have since been repealed by the Legislature and theHon. J. E. Lyles, Commissioner, Page 4 (WW-654)

only Article which relates to your present questions is Article 522la-6, V.C.S. There is nothing in this present law, however, which purports tomake it applicable in instances where an employer-employee relationship is not involved.Section l(e) ofArticle 5221a-6 defines private employment agents or agencies as follows:

“’ Private Employment Agent’ means any person in this State who for a fee or without a fee offers or attempts to procure employment for employees or procures or attempts to procure employees for employers except employees as common laborers or agricultural workers.” Other definitions in Section 1in.clude: 

## (4* ” The term ‘person’ means an individual, partnership, association, corporation, legal representative, trustee, trustee inbankruptcy, or receiver. 

## (b). “‘Fee’ means anything ofvalue including money or other valuable consideration or services or the promise ofany ofthe foregoing received by an employment agency from or onbehalf ofany person ,seeking employment o* employees in payment for any service, either directly or indirectly. (c). “%mployer’ means any person employing or seeking to emp-loy any employee. @a). “‘Employee’~ means any person performing or seeking to perform **work or**  service ofany kind for hire. 

## (h). “‘Agent’ shall mean a private Employment Agency as defined by this Act.” Based on the foregoing **statutory** definition ofa “private employment agent” and the other definitions included in the Act, it is clear that the scope ofregulation is limited to employees and employers, or where an employee-.

Hon. J. E. Lyles, Commissioner, Page 5 (WW-654)

employer relationship results or is intended **to result,**  and not to other relationships such as independent contractors. Black’s Law Dictionary at page 618 points out that the term “servant” is synonymous with “employee” and “master” is synonymous with “employer”, and further that the term “employee” must be distinguished from “independent contractor”

. Inthe facts which you have set forth in paragraph 1,the John Doe Agency has exclusive charge and control of the performers, rather than the person, asso-

. . ciation, convention, etc., desiring the entertainment. From the facts stated no employee-employer relationship results between the performers and the convention, etc., nor was such relationship intended to result. Many cases have set forth definitions or rules in distinguishing the master-servant relationship from an independent contractor, but perhaps one ofthe best and simplest definitions is that set forth in Shannon,et al vs. Western Indemnity Company, et al, 257 S. W. 522 (Tex. Corn.App. 1924):

‘1.

. .When one is employed by another, it may be generally said tobe in the relation of servant to master, or as an independent contractor. This being true, the courts in nearly every instance have undertaken to determine the relation ofthe person employed by another by first deciding whether or not such person was an independent contractor. If he was found not tobe such under all the facts and circumstances, then he was classed as a servant or employee ofhis employer.

. .

“‘No better test can be applied than to say that the ,relation~ ofmaster and servant sexists where the master ,retains or .exercises the power -ofcontrol in directing, not merely the end sought to be accomplished by the employmerr-of another, but as well the means and ,details ofits accomplishment; “not only what shall be done, but how it shall be done.““’ (Emphasis added) Under these principles, it is apparent that the John Doe Agency under the facts contained in paragraph one is not furnishing “employees” to the associaho**, conventions. etc., but said entertainers are under the exclusive charge and control of John Doe. Assuming the facts tobe as you have stated them inHon. J. E. Lyles, Commissioner, Page 6 (WW654)

paragraph one, the Private Employment Agency Law does not apply and the holding inAttorney General’s Opinion No. O-1269 is still applicable. Inconnection with the facts set forth in paragraph two, the situation is different and an employee-employer relationship results between the models furnished by the John Doe Agency and the company desiring the service ofthe models. The activity of the John Doe agency in the method ofoperation described in paragraph two comes clearly within the scope ofthe definitions set forth in the Private Employment Agency Law and the~purposes ofthat Act and we find no exceptions which would exempt such an agency or operation from the requirements ofthat Act. For a similar holding your attention is invited to Attorney General’s Opinion No. WW-653.

SUMMARY

1. The Texas Private Employment Agency Law, Article 5221a-6; V.C.S.. is not applicable to a person operating as the John Doe described in paragraph 1ofyour request, and the holding inAttorney General’s Opinion No. O-1269 is still applicable under the present employment agency law. 2. An agent, in furnishing models to various employers as described i,nparagraph 2ofyour request, would be~reqnired to obtain an employment agency license in accordance with the provisions ofArticle 5221a-6, V. C. S. Very truly yours,

WILL WILSON Attorney General

Morgaq,/Nesbitt AssistantHon J. E. Lyles, Commissioner, Page 7 (WW-654)

MN/fb APPROVED OPINION COMMITTEE C. K. Richards, Chairman ~Charles D. Cabaniss Tom IMcFarling Milton Richardson W. Ray Scruggs REVIEWED FOR THE ATTORNEY GENERAL BY: W. V. GEPPERT