Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
JIM MATTOX March 13, 1986
Attorney General
Honorable Sam D. l!illsap,Jr. opinion No. JM-451
Supreme Court Building Criminal District Attorney
P. 0. Box 12546 Bexar County Courthouse Re: Representation of parties in
Austin, TX. 76711. 2546 San Antonio, Texas 78205 forcible entry and detainer suits
5121475-2501 by "authorized agents" under section
Telex 910/674-1367
Telecopier 512/475-0266
24.009 of the Texas Froperty Code
Dear Mr. Millsap:
714 Jackson, Suite 7fJtI
Dallas, TX. 75202.4506
You ask several questions about section 24.OG9 of the Texas
2W742-9944
Property Code, enacted by the Sixty-ninth session of the legislature:
4624 Alberta Ave., Suite 160 In forcible detainer suits in justice court for
El Paso, TX. 799052793 nonuaymeot of rent or holding over beyond a rental
9151533-3464 t&n,- t1.eparties may represent themselves or be
represz&d by their authorized agents, who need
,001 Texas, Suite 700 not be-attorneys. In any forcible detainer or
Houston. TX. 77W2-3111 forcible ‘entry and detainer suit in justice court,
713/223-5888 an authtxrized agent requesting or obtaining a
default judgment need not be an attorney.
(Emphasis added).
808 Broadway, Suite 312
Lubbock. TX. 794W3479
6W747.5236 Acts 1985, 69th Leg., ch. 891, at 6479.l
You submit rwveral questions about this provision, which we
4309 N. Tenth, Suite 6
summarize as follow:
McAllen, TX. 76501-1665
5121662-4547
1. W1o is an 'authorized agent' under section
24.009 of the Property Code?
200 Main Plaza, Suite 400
San Antonlo, TX. 76205-2797
2 :~ Hly corporations, partnerships, real estate
512/2254191
brokers '>!tthe employees of such entities or indi-
viduals .?racticelawsunder this statute?
An Equal OPPOrtUnitYI
Affirmative Action Employer 3. Wxat proof of authority should be required
of an ag'ant appearing in a forcible entry and
detainer matter under section 24.009 of the
Property Code?
1. The Sixty-ninth session of the legislature enacted twc
provisions codified as section 24.009 of the Texas Property Code. See
Acts 1985, 69th Leg., ch. 747, at 5376 (warehouseman's lien). -
p. 2044
Honorable Sam D. Hillsap, Lr. - Page 2 (JM-451)
Section 24.009 of the Property Code expressly permits persons who
are not licensed as attorneys to represent parties in forcible
detainer and forcible entq' and detainer suits in justice courts. Set
Property Code 5524.001, 24.002 (defining forcible entry and detai=
and forcible detainer). Aa:icle 320a-1, V.T.C.S., the State Bar Act,
defines the practice of lwr as follows:
For purposes o,E this Act, the practice of law
embraces the pmparation of pleadings and other
papers incident co actions of special proceedings
and the manageme:ltof the actions and proceedings
on behalf -----
of cl:%nts before judges in courts as
well as services .renderedout of court, including
the giving of mivice or the rendering of any
service requiring;the use of legal skill or know-
ledge, such as {meparing a will, contract, or
other instrument, the legal effect of which under
the facts and ccnclusions involved must be care-
fully determined. This definition is not exclu-
sive and does net deprive the judicial branch of
the power acd alz:horityboth under this Act and
the adbdicated cases to determine whether other
services and acts not enumerated in this Act may
constitute the p&tice of law. (Emphasis added).
Sec. 19(s). Section 24.009 of the Property Code authorizes certain
persons to engage in what ,gouldbe the practice of law in the absence
of that provision. See generally Attorney General Opinion -v-56
(1983). It thus prov=r a legislative exception to the earlier
enacted section 10(a) of article 32Oa-1, V.T.C.S., which prohibits
, "[a]11 persons not members of the State Bar . . . from practicing
law. . .-.ll See Allied F:.nance Company of Bay City v. Falkner, 397
S.W.2d 846 (z. 1965) Ta later expression of legislative will
constitutes an implied repa!alof previo&s inconsistent iaw).
The judiciary, however, has inherent power to determine what is
the practice of law on a case by case basis, unconfined by statute.
Unauthorized Practice Cou@.ttee, State Bar of Texas v. Cortez, 692
S.W.2d 47, 50 (Tex. 1985); Grievance Committee of State Bar of Texas,
Twenty-First Congressional illstrictv. Dean, 190 S.W.2d 126, 128 (Tex.
Cl". ADD. - Austin 1945.-no writ). The uractice of law is also
subject to regulation by &: legislature as a*profession affected with
the public interest, but the legislature acts in aid of the judiciary,
not to the exclusion of the constitutional powers of the judiciary.
Bryant v. State, 457 S.W.:!d72, 78 (Tex. Civ. App. - Eastland 1970,
writ ref'd n.r.e.). See 'Tex. Const. art. II, 11; Supreme Court of
Texas, Order adopting%te Bar Act (1979) (codified following
V.T.C.S. art. 320a-1).
p. 2045
Eonorable Sam D. Millsap, Jr. - Page 3 (JM-451)
We believe the legic,lation codified as section 24.OCO of the
Property Code is not inconsistent with the judicial treatment of this
matter. The Texas Supreae Court has promulgated Rule 747a of the
Texas Rules of Civil Procedure:
In forcible entry and detainer cases for non-
paynent of rent or holding over beyond the rental
term, the parties may represent themselves or be
represented by their authorized agents in justice
court.
Attorney General Opinion .I&56 (1983) construed this rule in light of
the Supreme Court's constitutional authority to establish rules of
procedure "not inconsistenr with the laws of the State for the govem-
nerd of the courts. Tex. Const. art. V, 925. This constitutional
provision expressly llmirs the inherent power the ccurts might
otherwise have to establish their rules of procedure. To avoid
finding Rule 747a inconsis:ent with article 32Ca-1, V.T.C.S., Attorney
General Opinion JH-56 cons,:rued"agents" to mean "attorney agents":
To the extent that rule 747s purports to
authorize the practice of law by unlicensed
persons, we believe that it would be held unconsti-
tutional. Where a mle of the Supreme Court con-
flicts with a sxtute, the rule must yield. . . .
Tn our opinion, therefore, 'authorized agents' as
used in Rule 74'7a should be construed to nean
'attorney agents.'
Attorney General Opinion JM-56 (1983) (citation omitted). Pule 747a.
on its face, attempts to authorize agents who are not attorneys to
appear in forcible entry and detainer suits, as Attorney General
Opinion JM-56 implicitly acknowledges. Section 24.009 of the Texas
Property Code seeks to carry out the apparent intent of Rule 747a, and
for that reason, we believe the legislature eracted that provision in
aid of the judiciary, and not in contravention of its constitutional
powers. Set Bryant V. Stay, supra.
Your questions are phrased in general terns, and must be given
general answers. The appointment of particular nonlawyer agents ray
raise additional legal questions which must be answered on a case-by-
case basis.
A corporation or a business entity which is a party to a forcible
entry and detainer suit may be represented by an "authorized agent"
under section 24.009. We believe an "authorized agent" under section
24.009 of the Property Cotle.may only be a natural person and may not
be a corporation or other busicess entity. The “authorizec! agent” is
to act analogously to a licensed attorney, who is necessarily an
p. 2046
Honorable Sam D. Millsap, Jr,.- Page 4 (m-451)
individual. See V.T.C.S. am. 32Oa-1, 510. See also Ackley v. State,
592 S.W.2d 606(Tex. Grim App. 1980); Tar&urine v. Center Savings
Association, 583 S.W.Zd 942 (Tex. Civ. App. - Tyler 1979, writ ref'd
n.r.e.) (defining "agent"). Moreover, section 24.009 of the Property
Code uses the personal pronoun "who" to refer to "authorized agents,
who need not be attorneys."
The judicial decision la Holloway v. Paul 0. Sixms Co., 32 S.W.2d
672, 673-74 (Tex. Civ. App. .-Austin 1930, no writ) is helpful on your
question about the proof o.E authority required of an agent appearing
in justice court under sec,cion 24.009 of the Property Code. ThiS
decision considered former article 3977, V.T.C.S., now codified as
Rule 739 of the Texas Rules (ofCivil Procedure, which governs issuance
of citation in a forcible entry and detainer proceeding. Rule 739,
which is idantical to former article 3977, V.T.C.S., as to the
language relevant to our inquiry, provides in part:
When the par:y aggrieved or his authorized
e shall file b.iswrittan sworn complaint with
such lustice, the iustice shall ixmediatelv issue
citation. . . . (:&phasis added). .
Tex. R. Civ. Proc. 739. Thlc defendant-appellant in Holloway v. Paul
0. Sinma, *, argued thee the affidavit upon which citation issued
was void and would not susl:ainthe suit, contending that, in addition
to other defects, the affidavit was made by an agent who did not
reveal his agency. The ccurt stated that these matters were raised
for the first tine after t1.ecase reached the county court on appeal,
that appellant had already (contestedthe suit on the merits, "and no
special plea attacking the lack of authority of the agent was ever
filad." -Holloway v. Paul 0. Siam8 Co., 32 SiW.2d 672, 673 (Tex. Civ.
APP. - Austin 1930, no writy. The affidavit was held to be sufficient
for the following reasons:
Numerous authorities hold that where an agent
wakes an aff1davi.tunder procedural statutes like
the forcible dctainer statutes, which do not
require the agent to swear to his agency, the
affidavit is suf:l:icientif it reasonably appears
therefrom that affiant is agent, and especially is
this the rule where no attack is made upon .the
authority of the agent.
32 S.W.2d at 673-74.
Texas law presumes that:an attorney is authorized to act for any
person whom he professes or appears to represent. Powler v. Morrell;
8 Tex. 153 (1852); National Bond 6 Investment Co. v. McCoy, 263 S.W.
1089, 1090 (Tex. Civ. App. -'Amclrillo1924, no writ). Rule 12 of the
p. 2047
Honorable Sam D. Millsap. Jr. - Page 5 (~~-451)
Texas Rules of Civil Procsidureprovides that a pazty to a suit may
challenge the authorit? of another party's attornev to act in the
suit. see Victory v. State, 158 S.W,2d 760, 766 (Tex. 1942); Valley
Interna~al Properties 1~;;.v. Brownsville Savings and Loan Associa-
-.
tion, 581T.W.2d 222, 226-(Tex. Civ. App. - Corpus Christi 1979, no
writ). See also Tax. R. C::v.Proc. 8 (lead attorney defined).
No statute or rule comparable to Rule 12 applies to "authorized
agent6" under section 24.CO9 of the Property Code. Nonetheless, the
method of challeneine the authoritv of "authorized aaents" stated in
Holloway v. Paul- 0‘: Sims Co.,*supra, resembles-the wethod of
challenging an attorney's-authority established by Rule 12 and by
judicial decisions. In 01.x opinion, the authority of aa "authorized
agent" to represent a party to a forcible entry and detainer suit
under sectior 24.009 of the Property Code is to be presmed,. If
another party questions the agent’s authority for the purported
representation, he must ra:isethe matter in the justice court, and not
for the first time on appeal. See Tex. R. Civ. Proc. 85 (pleas
contained in answer to complaint).-
SUMMARY
Section 24.009 of the Texas Property Code
authorizes the parties in certain forcible
detainer and forc:lbleentry and detainer suits in
justice court to be represented by "authorized
agents" who arc not attorneys. This statute
creates an excepl:l:on
to the prohibition in article
320a-1, V.T.C.S., against the practice of law by
persons not licensed as attorneys. Authorized
agents under section 24.009 must be individuals
and not business entities. An agent's authority
under section 24.009 of the Property Code is to be
presumed. Any challenge to the agent's authority
by another party must be raised in justice court
and not for the :iJ:rst
time on appeal.
Attorney General of Texas
JACK BIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
p. 2048
Eonorable Sam D. Millsap, :'I.- Page 6 (~~-451)
ROBERT GUY
Special Assistant Attorney G,eneral
RICK GILPIN
Chairman, Opinion Comoittef!
Prepared by Susan L. Garrimn
Assistant Attorney General
p. 2049