Untitled Texas Attorney General Opinion ( 1940 )

Honorable M. 0.'Flowers
Secretary of State
Austin, Texas
Dear Sir : Attention: Mr. Wallace Scott
Opinion No. O-2513
Re: Does the perf&tion of an.appeal
as pi+ovidedIn~Sectlon..15,Article
6573a, Vernon's Annotated Civil
Statutes, operate to sui@eridoP
supersede the order of dancellafion
of a dbaler's license inade"bythe
Secretary of State at a hearing?
.'Your letter of August 8th, requesting an opinion of
this Department, reads as follows:
"In thh early part of 1940 a real estate Galer's license
was~'grantedby this office to I&.";
C. W. East of Amarillo,
Texas.. Thereafter, due to cijmplaintsrecefvea bg"this
dffice, the said C.W. East'was notified that a hearing
Vith respect to such complaints would be held to determine
whettieror not the license previously Issued him should
be cancelled.
"Such hearing was held on or about the 13th day of June;
1940 and thereafter an order was entered by this division
cancelllng such license. Thereafter,.the said C'.W. East
under the provisions of Section 15 filed an appeal in the
pistrict Court of Potter County, his home county.
"Assuming that the provisions of the Real Estate Act were
properly followed with respect to such hearing and that
Mr. East's apPea1 has been duly perfected, this division
would appreciate your advice as to whether or not the per-
fection bf such appe%iloperates to suspenKor supersede
the order of cancellatioficancellirigMr:East's license
mad& by this department at. such hearing, 6r,~in bther words,
1~s.
the satd,Mr. Eist entitled to operate as a real estates'
d&ler'.'under'
the kuthbrity givefihlm~'by‘suchlicense after'
siiizh
order of eancellatlon and after an appeal to the court
has been perfected ."
Honorable M, 0. Flowers, page 2 O-2513
The question of suspension of a judgment of the dis-
trfct court is no% before us~'incbnnection with your request,
but"bnljrwhether under the facts as stated, thk pe?f&c%ing of
tinappeal from~an order of the Secretary of'State suspends'the
order-'ofrevocation entered tinder"theprovlsions"of the statute,
This as we see"it is solely a qtiestiohof legislative interit,
assutifngthe valfaity of'the Real Estate Lic'enseAct, Atiticl.9
6573a, VePnon's Civil Statutes, under which act this dealer's
license was origfnally granted.
Article 6573, Vernon's Civil Statutes, containing
twehty-two se&for&, provfdes for the licensing of all 'Peal
e'statedealers engaged in such buslness'and places the adminis-
trative dutle'sof enforcing the provIsIons thereof in the office
of the SecretaPg of-'Statethrbugh its administratlve office*
created by the act and known as the AdmlnYstrator 'bfthe Securl-
ties Division of the Office of the Secretary of State.
Sectfon 5* Subdivision (c) of the law provide3:
"The Admfnistrator of the Securities-Division 1s~'
hereby empowereilto examine wItnesseD and adminlstep oaths,
and ff shall be hfs duty to investigate persons~doing
bc,sin&ssin real estate in this State to ascertain whether
they ape violating any of the pyovlkions of this"Act and to
keep such yecords and minutes as shall be necessary to an
orderly dispa%ch of business."
Section 11, SubdivisIons (1 - 17) set forth the grounds
upon Which t,kelicense of a person within the provisions of the
act may be suspended, revoked or the reriewalthereof refused.
It fur',ther
provides that no action,of the act shall be construe5
to Pelieve aE.ypel:sori company from civfl liability or criminal
tire
prosecution under We 8ct or untierthe laws of the State.
., SectfoEs 12 and 1 pl-ovfdefor notice and hearing oti
charges presented t,orevoke or suspend a license, a% which hear-
ihg witnesses may be s,ubpoenaedand a~record is required to be
made of tbefp swo~rt testimony and of the proceedings. l
Section 15, APtfcle 6573a of said statutes, provides:
"(ala Any rear'estate dealer, real estate salesman,
owner,'or‘subdiH.der'aggrieved by any decision or the
Secretary of State tiy file wi%hin thirty (30) days there-
after in the Diktrict Court ikithe boun%y wherb his prfncl-
pal pletceof btitifness is situated, a petitlofiagainst the
Secretary of"S%ate officially as defendatit,alleging Uiiereln
Ln bbief letafl the action and detilsfoncomplafned 6f and
for an order dfyec%.ing the SecPetaPg of State to license the
Honorable M. 0. Flowers, page 3 O-2513
a'pplicantor grant an owner or subdivider a permit, as the
case inaybe. Upbn service of the sumnibnsupon the Secretary
of State, returnable within ten (10) days from XtsKdate, the
Secretary of Stat& shall on or before the return day file
an answer. The case shall be tried in the District Court
de novo, upon its'm6rlts.
"(b) . The District Court may, upon Bpplicatloti'of
either party and upon due notice given, advance the c&se
tinthe socket. Frbm the decision of the District-'Court,
an appeal may be taken to the Court of Civil Appeals by
either party, as in other cases; and no bond shall b@'
required by the Secretary of;Sttite. A judginentin ftivor '.'
of the plaintiff shall,not'~barafter one gear a'new applica-
tion"'bythe plaintiff for a license, nor shall a judgiiient
in favor of the plaintiff prevent the Secreta+g of State
from"thereafter revoking or refusing to lidensezsuch person
for any proper cause which may thereafter accrue or be dfs-
covered. The court'shall have full power to dispose of all
costs #"
Section 21, Article 6573a of the statutes, provides:
"(a) Any pers'bn,?.'or
agent,',officGr,or employee bf
any coinpany,acting as a real estate dealer or real estate
sixlesmanwithin the meaning of this AEt, without first
having been licensed by the Admlnisttiatorof the-securities
DlvIsion 6f the office of the Secretary"of,State, and every
officer, agent, or employee of any company, and every other
person~who knbwlngly'authorizes, directs, or aids ih the
publication, aclvertisement,alstribution, or circulatlbn of
any false statement or repre&entation~conc&rnlng any land
OF subdivision offered,for sale or lease, Andyevery person
who, with knowledge that any .adver%lsement,pamphlet,
prospectus, or letter concerning tinyland or subdivision
contains any written statement that Is false or fraudulent
issues, circulates, publishes, OF distributes the same, or
shall cause the same to be issued, circulated, published,
or distributed, or who, in any other respect, wilfully
violates OP fails to comply with any provisions of this
Act, or:who in any other respect wllfully violates 01"
fails, omits OP neglects to obey, observe or comply with
any order, permit, decision, demand, or requirement of
the Admlnistrtitorof the Securities Division of the office
of~the Secretary of State under this Act as herein provided,
shall upon conVIction therefor be bentenced to pay a fine
df'not more than Five Hundred Dollars ($500) or .Fmprison-
tiefit
ln'the county jail for not more than one year or both
such fine and imprisonment."
- .
Bonorable M. 0. Flowers, page 4 O-2513
It is provided in Section 17 of the act that'all
licenses issued shall 'expireDecember 31 of each year at mld-
t-iight,
and that applications for renewal of licenses may be
made between November 15 and December 31.
Actssimilar %o that of the Real Estate DealersAct
under consideration, granting to State Boardsor Departments
jurisdiction of violationsof its provisions.'forthe purpose
of enforcing the publ.ichealth and welfare have been upheld
by the courts. :Ifthe Legislature in its wisdom finds evils
prevalent and existing in the business of those engaged in
real estate transactions in theirdealings with the publicto
the extent of enacting such Iaws~as may be necessary to proper
regulation and con%r01,~It can hardly be questibned that It is
a valid exercise of the police powers of the State,
1% is generally conceded that the right and power to
grant a license to exercise a particular vocation implies-and
includes the authority to suspend or revoke It, And i%"has
been held that a person accepting a license from the State -'
lmpliedlg agrees to scbmi,sto ,%hetribunals created by the State
todetermine his fitness %o continue enjoying the privilege
granted o See Marx v. Matthews, 270 S-W. 586.
Proceedings of this nature, have been held by our
coutitsas not being "judicial" but quasi-judicial as applied to
an act of an executive officer who, in the exercise of his func-
tions, is required to pass upon facts, and'to determine his
action by the facts found. I% is also apparent that a license
issued to a dealer on %he'payment of the sum required under the
provisions of the Real Es&'i:eDealers Act is in the nature of a
special privilege required as a condition precedent to the"
right to carry on his busin~ess,and was not either a contract or
a vested ~igbt to do business. See 17 Rawle C, L, page 476, par. 5;
Prater et al, v, Storey, 249 S.W. 871; Baldacchi v. Goodlet, 1%
SOW. 325.
Ttieprovince OP Section 15 of the act Is to afford an
aggrieved dealer or person who has had his license ,revoked, a
remedy for judicially dete:rmlningthe correctness.of the order
finding him guil%,yof having violated the law.' If he is permitted
to pursue the occupation until the case is finally determined
upon Its merits, it would amount to a nullification af the duly
authorized and exercised func%lons of the Secretary of State.
The true purpose and effectiveness of the law could easily be
defeated by one who has had his license revoked, by filing his
petition within the thirty day period and thereafter fail to
prosecute his appeal.
After a person's license has been duly revoked under
Honorable M. 0. Flowers, page 5 O-2513
this law, it Is clear that the law :places e burden upon the
petitibner to brtng the matter up for review endnot upon the
Secretary of State. It will be seen that the statute makes it
possible for him to file hisspetitlon'the next day; it author-
izes summons upon the"Secretarg of'State;'returnable within
ten days thereafter~;end he may further, at the"'tlmeof fllri'ig
his petition, make eppllcetlon to advance the case in the Dls-.
trict C'ourt. Such procedure specifically authorized by Sec. 15
of the act, with other provisions thereof"'expresslydenying
relief from criminal prosecution for any acts committed there-
under, evidences an intent on the~pert of the.'Legislatureto "
deny petitioner the'right to operate pending a.'judicialreview.
We are convinced"~'that
the.remedy accorded the aggrieved dealer
was so intended ana should not operate unjustly to delay the '.
hearing of his case provided he pursues the remedy with diligence.
_.
It 1.9,therefore, the opinion of this Department that
the timely filing of a petition against the Secretary of State un-
der the provisions of Section 15, Article 6573a, by en aggrieved
dealer to"revlew the facts upon which an order revoking his
license has been duly made, does notof Itself operate to sus-
pend or supersede the order of revocation.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
By s/wm. J. R. KMg
Wm. J. 'R. King
Assistant
WJRK:AMM:wc
APPROVED AUG 27, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman