Untitled Texas Attorney General Opinion ( 1986 )

The Attorney General of Texas
Pelmary 21. 1986
JIM MATTOX
Attorney General
Supreme Court Building Me. Candy Moore Opiuim No. m-437
P. 0. Box 12548 Executive Officer
Aus,,“. TX. 78711.2549 Texas Polygraph &miners Board Re: Whether a polygraph examiner
51214752501 P. 0. Box 4087 is required to display his license
Telex Q10187C1357
Telecopier 5121475-0266
Austin, Texas 78'173 at each location vhere he perform
his services
714 Jackson, Suite 700 Dear Ms. Moore:
Da,Ias. TX. 752024508
21u742.8944
Polygraph exminers are regulated and licensed pursuant to
article 4413(29cc). V.T.C.S., the Polygraph Examiners Act. Section 15
4924 Alberta Ave.. Suite 180 of the act sets foc,th the following in pertinent part:
El Paso. TX. 79905.2793
91515334464 A license or duplicate license must be prominently
displayed at the place of business of the polyi
1001 Texas. Suite 700 graph emminer
-- or at the place of internship.
HOUS~QII,TX. 77002-3111 (Emphasis added).
7131223~5886
You inform us c:bat a polygraph examiner frequently takes his
instrument to the location of an employing company and performs
606 Broadway. Suite 312
Lubbock, TX. 79401.3479
testing at that lwatlon rather than at his normal place of business.
0061747.5238 You ask whether the examiner is required to display his license et
this location. You further inform us that the board issues s pocket
identificatim car,d. each year vhan the examiner renews his llcense.
4309 N. Tenth. Suite B
If we answer your first question in the affirmative, you also ask
McAllen, TX. 78501.1685
512lSB2.4547 whether display 8.t the location of the employing company of this
identification cax,d is sufficient to comport with the requirements of,
the act or whether the actual license must be displayed. We conclude
200 Main Plaza. Suite 400 that a polygraph c!xamlner is not required to display his license when
San Antonio, TX. 782052797
he performs testlug: at a locatiou different from that of his regular
51212254191
place of business;. Because we auswer your first question in the
negative, we aced not answer your second question.
An Equal OppOrtUnitYI
Affirmstivs Action Employer The Polygraph Examiners Act itself does not define the phrase
"place of businem of the polygraph examiner." Nor has any Texas
court construed this phrase in the act. Courts in Texas and la other
jurisdictions have: variously construed the phrase "place of business";
however, those comtructions turn upon the context in which the phrase
is used and the ,arident intent of the drafters of the leeislation.
See. e.g., Bullocl~v. Dunigan Tool & Supply Co., Inc., 588 S.W.2d 633
(Tax. Civ. App. - Beaumont 1979, vrit ref'd n.r.e.); Mobil-Teria
Catering Company. Inc. v. Spradling, 576 S.W.Zd 282 (MO. 1978) (courts
construed local tax statutes to reach location vhere actual
p. 1999
Ms. Candy Moore - Page 2 (JMI-437)
transaction occurred rather than to limit reach of statutes to
business’ normal or official place of business); see also contra
Luckett v. Coca-Cola Bottling Company of Louisville. 310 S.W.2d 795
(KY. 1958) ; Northwest Tocz & Supply, Inc. v. Employment Security
Department, 547 P.2d 908 -(Wash. Ct. App. 1976) (courts construed
certain tax statutes to rc:nch actions occurring only at location of
norms1 office rather than z.t location at which transaction occurred).
After an examination Iof the entire set. ve conclude that the
legislature intended an ex.uniner to display his license at his normal
or fixed place of business or office , rather than at every location at
which he conducts an examination. The factual situation which you
have described is analogous to that set forth in _Business Management
Corporation v. Department of Industrial Relations, Division of Labor
Statistics and Law EnforcgE, 123 P.2d 142 (Cal. Dist. Ct. App.
1942). That case involved the determination for purposes of an
employment agency llcensi:lg statute of the place of business of a
motion picture employment agency which maintained a permanent or fixed
office in Beverly Bills l)lIt whose employees frequently visited Los
Angeles, Culver City, and surrounding cities on behalf of clients.
The court concluded that place of business referred to
a place or pl,aces actually occupied either
continually or ai: regular periods by a person or
corporation or 11f,sor its clerks for the purpose
of conducting a business. If business is
transacted at it place occasionally but not at
stated periods, it Is not properly termed a place
of business.
123 P.2d at 143. See al+ R.V. Smith Supply Co. v. Black, 88 P.2d 269
(N.&l. 1939). There is no indication in the act that the legislature
intended that the examiner display his license at a location other
than at the axeminer’s fixed place of business or office. Accordingly
we conclude that a polygl,a.ph examiner 1s not necessarily required to
display his license at each location where he performs his services.
SUMMARY
A polygraph examiner is not necessarily
required to diriplay his license at each location
where he perforns his services.
JIM NATTOX
Attorney General of Texas
p. 2000
Us. Candy Moore - Page 3 (JM-437)
JACK RIGE!TOWER
First Assistant Attorney General
MARTKELLER
Executive Assistant Attorney C,eneral
ROBERTGRAY
Special Assistant Attorney Gtmeral
RICK GILPIE!
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
p. 2001