Untitled Texas Attorney General Opinion ( 1952 )

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 re-
ceiving evidence that
an unlicensed individ-
ual is holding himself
out to the public as a
Dear Sir: public accountant.
Your request for an opinion of this office con-
cerns the question of prosec,uting a person who holds him-
self out as a "certified public accountant" and who is
performing services generally performed by public acco,unt-
ants , b,ut who does not hold a permit to practice public
aeco.untancy from the Texas State Board of Public Account-
a.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 Ac-
co'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 exami-
nation of financial transactions, books, ac-
counts, or records, or the preparation of,
or the reporting over his signature on, fi-
nancial, 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 pro-
visions 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 im-
prisonment in Jail for, not more than six
months, or by both such fine and imprison-
ment."
Clearly the statute creates an offense against the
State, subject to prosecution in the same manner as other mis-
demeanors, We know of no law which authorizes the Attorney
General to represent the State in such criminal cases. -
Section 21 of Article V of the Constitution of
Texas provides in part:
"A county attorney, for counties in which
there.is not a resident criminal district at-
torney, 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 commis-
sioners' 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 Dis-
trict 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 dis-
trict attorneys and county attorneys shall in
sue; counties be regulated by the Legislature.
DI .
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
'I shall attend the
terms of all courts in his county below the
grade of district court, and shall represent
the State in all criminal cases under examina-
tion 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 prose-
cution 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. App-
1936) g 418 I1849). Although
Se,t,bnB``fvAr````~e~l~ 5V?xS authorizes the
Board to institute proceedings a&nst any person holding
2 certificate or permit under the act to suspend or re-
voke 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 a-
gainst 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: PRICE DANIEL
Attorney General
J. C. Davis. Jr.
County Affairs Division
Mary X. Wall
Reviewing Assistant
Assistant
Charles E. Mathews
First Assistant
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