Hon. J. E. Lyles, Commissioner 

Bureau of Labor Statistics 

Capitol Station 

Austin 11. Texas Opinion No. WW-654 

Re: The applicability of Attorney 

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 of Article 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 by this office 

while the second relates to a current fact situation with which your office is 

concerned. 

For clarity and reference the paragraphs in which the facts are stated 

will be numbered 1 and 2. Following each of the two paragraphs the questions 

which you have asked and which relate to that paragraph will be stated and 

numbered. 

1. “John Doe maintains an office and carries 

on the business of providing 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 of program desired, or 
Hon. J. E. Lyles, Commissioner, Page 2 (WW-654) 

agrees to accept the type of programs recom- 

.mended by John Doe. The person, association, 

convention, etc., does not interview or pay any 

money to any of the performers, but deals 

directly and only with John Doe, The price of 

the program is a lump 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 of program 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 of this office previously 

and which was answered by Attorney General’s Opinion No. O-1269 (1939). 

Essentially, you requested an opinion as to whether, 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 by Attorney 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 of this ~office was 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 of placement is used by John Doe: A 

company, which desires the service of a 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 representative 
Hon.~ J. E. Lyles. Commissioner, Page 3 (WW-654) 

then furnished the names of the 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 of business 

for the show. The models do the engagement 

for an agreed fee which is ~paid by the John Doe 

Agency. The agent in turn bills or invoices the 

company benefiting from the service. The activities of the models are directed by the company which is sponsoring the show. The company also has complete control of the show which 

it is staging. The agent has no control of the 

models, once they are placed, nor of the show, 

as they do in the case of entertainment acts. 

In connection with the additional facts as stated in paragraph 2 above, 

your second question is as follows: 

2 . . . “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 of Article 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., land known as the “Texas 

Private Employment Agency Law,” regulates the operation of private employment agents in Texas. 

Attorney General’s Opinion O-1269 was written at a time when the “Texas 

Employment Agency Law,” as set out in Articles 5208 through 5221, Vernon’s 

Civil Statutes of 1925, as amended, and Articles 1584 through 1593 of Vernon’s 

Annotated Penal Code, was applicable. That opinion held that the agent or entertainment entrepreneur, as described in paragraph 1 above, did not come within 

the purview of the 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 of these articles have since been repealed by the Legislature and the 
Hon. 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 to make it 

applicable in instances where an employer-employee relationship is not involved. 

Section l(e) of Article 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 1 in.clude: 

(4 * ” The term ‘person’ means an individual, partnership, association, corporation, legal representative, trustee, trustee in bankruptcy, 

or receiver. 

(b). “‘Fee’ means anything of value including 

money or other valuable consideration or services 

or the promise of any of the foregoing received by 

an employment agency from or on behalf of any 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 of any kind 

for hire. 

(h). “‘Agent’ shall mean a private Employment 

Agency as defined by this Act.” 

Based on the foregoing statutory definition of a “private employment 

agent” and the other definitions included in the Act, it is clear that the scope 

of regulation 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”. 

In the 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 of the 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 to be 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 of the person 

employed by another by first deciding whether or 

not such person was an independent contractor. If 

he was found not to be such under all the facts and 

circumstances, then he was classed as a servant 

or employee of his employer. . . 

“‘No better test can be applied than to say that the 

,relation~ of master and servant sexists where the 

master ,retains or .exercises the power -of control 

in directing, not merely the end sought to be accomplished by the employmerr-of another, but as well the 

means and ,details of its 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 to be as you have stated them in 
Hon. J. E. Lyles, Commissioner, Page 6 (WW654) 

paragraph one, the Private Employment Agency Law does not apply and the 

holding in Attorney General’s Opinion No. O-1269 is still applicable. 

In connection 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 of the 

models. The activity of the John Doe agency in the method of operation described in paragraph two comes clearly within the scope of the definitions set 

forth in the Private Employment Agency Law and the ~purposes of that Act and 

we find no exceptions which would exempt such an agency or operation from the 

requirements of that 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 1 of your request, and the holding in Attorney 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,n paragraph 2 of your 

request, would be ~reqnired to obtain an employment agency license in accordance with the 

provisions of Article 5221a-6, V. C. S. 

Very truly yours, 

WILL WILSON 

Attorney General 

Morgaq,/Nesbitt 

Assistant 
Hon J. E. Lyles, Commissioner, Page 7 (WW-654) 

MN/fb 

APPROVED 

OPINION COMMITTEE 

C. K. Richards, Chairman 

~Charles D. Cabaniss 

Tom I McFarling 

Milton Richardson 

W. Ray Scruggs 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: W. V. GEPPERT