action OIproceedingon behalf of a client before a judge in court as well as a servicerenderedout of court, includingthe givingof adviceOIthe renderingof any servicerequiringthe use of legal skill OI knowledge,suchas preparinga will, contract,or otherinstmment,the legaleffect of whichunderthe factsand conclusionsinvolvedmustbe caretidlydetermined.
TEX.GOV'T CODEANN. 5 81.101(a)(VernonSnpp.2004);see ako id. $5 81.101(b)("Thedefinitioninthis sectionis not exclusiveand does not deprivethe judicial branchof the powerand authorityunder both this chapterand the adjudicatedcasesto determinewhetherother servicesand actsnot enumeratedmay constitutethe practiceof law."), 311.01l(b) (Vernon 1998)(wordsthat have acquireda technicalmeaningshall be construedaccordingly)(Code ConstructionAct). Mr. Thomas A. Davis Jr. - Page 4 (GA-0275)
statutory predecessor to chapter 1702, until 2003, when the legislature last amended chapter 1702, the Texas Commission on Private Security and its predecessors had not interpreted the Act to apply to employees working under exempt attorneys' direct supervision4 This is a reasonable interpretation of chapter 1702's regulatory scope given that state law recognizes that attorneys rely on paralegals and other employees to assist them in practicing law,5 and attorneys themselves, to the extent they are engaged in the practice of law, are expressly excepted under section 1702.324. See TEX. Oct. CODEANN. 3 1702,324(b)(9) (Vernon 2004); Tex. Water Comm 'n v. Brushy CreekMun. Util. D&t., 917 S.W.2d 19,21 (Tex. 1996) ("[T]he construction of a statute by an agency charged with its execution is entitled to serious consideration unless the agency's construction is clearly inconsistent with the Legislature's intent.").
Moreover, as the State Bar notes,6 chapter 1702 distinguishes between the business of investigating, which chapter 1702 regulates, and the practice of law, which it does not. See TEX. Oct. CODEANN. $5 1702.104, .324(b)(9) (V emon 2004). Section 1702.104 provides that a person acts as an investigations company if the person "engages in the business of obtaining" or "accepts employment to obtain" certain kinds ofinformation. See id. 5 1702.104(l)-(2). An employee who works for an attorney who is exempt from regulation under section 1702.324(b)(9) is not engaged in the business or employment of investigating but rather is employed by the attorney in connection with the attorney's legal practice.
A. Section 1702.323(e)%Scope
Although the Texas Commission on Private Security and its predecessors had not interpreted the Act to apply to employees working under exempt attorneys' direct supervision, you are concerned that a recent amendment to chapter 1702 may bring them within the chapter's scope. See Request Letter, supru note 1, at 1-2. This concern arises from a 2003 amendment to the subchapter N, section 1702.323 exception, entitled "Security Department ofPrivate Business." See TEX. OCC. CODEANN. 5 1702.323 (Vernon 2004); see also Act of May 28,2003,78th Leg., R.S., ch. 593, $ 3,2003 Tex. Gen. Laws 1965, 1966 (House Bill 1769, adding subsection(e)).
%eeRequest Letter,sujvanote 1,at 1(suggestingthatqueryarisesas a resultof a 2003amendmentto theAct); LetterfromThomasA. DavisJr., Director,TexasDeparhnentof PublicSafety,to HonorableJoe Driver,TexasHouse of Representatives(June 9, 2004) (on tile with OpinionCommittee)(statingthat DPS has not appliedthe Act to paralegalsandwillnot do so unlessthe AttorneyGeneralconcludesthat the 2003amendmentbringsparalegalswithin the Act'sscope).
'See,e.g.,TEX.R. EVID.503(a)(4)(A)("A'representative of the lawyer'is one employedby the lawyerto assist the lawyerin the renditionof professionallegal services ."), (b) (extendinglawyer-clientprivilegeto a communicationwith a representativeof the lawyer);TEX.DWZIPLINARY R.