Untitled Texas Attorney General Opinion ( 1964 )

Honorable Henry Wade Opinion No. C-283
District Attorney
Dallas County Re: Whether a corporation may,
Records Building throur:ha non-lawyer, seek
Dallas, Texas a wrFf of sequestrationin
a Justice of the Peace
Court, or In a Small Claims
Dear Mr. Wade: .Court.
In your request for an opinion from this office, you
submit two questions which we q&,te as follows:
“1. I$aya corporationseek a writ
of sequestrationin a Justice of the
.Peace c,ourtthrough a non-lawyer
employee?
"2. May a corporationseek a writ
of sequestrationin a Small Claims
Court through a non-lawyer employee?!’
Your letter reflects that you are inquiring whether
a cotiporatlonmay, through a non-lawyer, institute the suit,
prepare the affidavit and bona and represent the corporation
in court.
You call attention to Opinion No. C-82 of this office
aated May 23, 1963, which held that a non-lawyer employee of
a corporationwho is empowered to act for the corporationmay
legally file a claim In the Small Claims Court in behalf of
thy corporation. You state that you .interpretthat opinion
1 to relate only to the specific facts of the example therein
contained in regard tomthe simple filing of the petition in the
Small Claims Court, ma (2) to allow a non-lawyer employee of
the corporationmerely to file a petition in the Small Claims
Court and not extending to any other action. We agree with
your interpretationof.that opinion.
We also agree with your conclusion that both of the
above questions propounded should be answered in the negative.
We will discuss each question separately,keeping in mind that
we are considering the powers and jurisdictionof two separ-
ate courts.
-1351-
Honorable Henry Wade, Page 2 (OpinionNo. C- 283 )
1.
JUSTICE OF TBE PEACE COURTS
In answer to your first question, it Is necessary to
determinewhether a non-lawyermay represent another person in
the Justice of the Peace Court, as alstlngulsheafrom repre-
senting such person in the Small Claims Court.
There is no cause of action for a writ of aequestra-
tlon. Such wrlt is only ancillary to a c'luseof action.
Article 6840, V.C.S., ,glvesseven cases I:1which a writ of
sequestrationmay be Issued. It Is only under Sections 2, 3,
and 5 of said Article that there are cases of which the Justice
of the .PeaceCourt might or might not have jurlsdlctlon. Before
any writ of sequestrationcan be,issued in said court, there
must, first, be a suit or action filed for one of the purposes
mentioned In the seven cases set out in said Article.
When a suit 1s filed for any of the seven causes of
action mentioned In Article 6840, the person filing the same
is certainly engagedfin the practice of law. The mere filing
of the suit constitutesthe practice of law.
All persons who are licensed to practice law must be
members of the State Bar of Texas, and all persona not members
of the State Bar are prohibited from practicing law in Texas.
(Article 3208-1, V.C.S.).~ Therefore; since It ls practicing
law to file a suit in any court, the non-lawyer la prohibited
from dolng so, except in the Small Claims Court as hereinafter
noticed. Such person has no more right to file a suit for
someone else in the Justice of the Peace Court than in the
County or District Courts.
Purthermore,Rule 7 of the Rules of Civil Procedure
provides that "Any party to a suit may appear and prosecute
or defend his rights therein, either in person or by an attor-
ney of the court." (Emphasisadded.) A corporationCannot
appear in person. The source of this rule la Article 1209 of
the Revised Civil Statutes of 1895 and Article 1993 of the
Revised Civil Statutes of 1925, unchanged. The court in
Harkins vs. Murphy & Bolanz, 112 S.W. 136 (Tex.Clv.App.1908,
error dism.), in speaking of this statute, atated: 'ThlS
statute,under the familiarmaxim, 'expresslounlus est excIuslo
alterius,'requires that a party in prosecutingor defendinghis
suit shall do so in person or by an attorney of the court."
This, by implication,excludes the right of any other to do so."
-1352-
-..
., 8.
Honorable Henry Wade, Page 3 (Opinion No. C- 283 )
In the case of Loard vs. Como, 137 S.W.2d 880 (Tex.Clv.
APP. 1940, error ref.) the court held that only an attorney
could represent a city In court, and said:
"It 1s a matter of common knowledge,
such as we may take judicial cognizance
of, that municlpalltlesoften have to
litigate in the courts of the country.
They of necessity must employ counsel
to represent them. Under Article 962,
R.C.S., such munlcipalltles81'emade
bodies politic, capable of cohtractlng
and being contractedwith, suing and
being sued in the several courts of the
State. Only licensed attorneys In good
standing may practic law in the courts
and represent the Interests of their
clients. Municipalities,as such, can-
not do this, buk must be represented
b,yan attorney.
The same court also said:
"In the second place, it will be
observed from what we have said rela-
tive to litigation In the courts ln-
volvlng munlclpalltles,they must be
representedby attorneys qualified to
practice law. If It may be assumed
that the duty of a City Attorney ls to
represent the City In such litigation,
and that there are no other officers
of the City who can so practice that
profession, those duties could not a8
a matter of law be enjoined by the
council on any other city offlclal."
Although this rule of law was In reference to a munlclpal
corporation,we cannot conceive of any reason why it is not also
applicable to private corporations.
The first question, therefore, la answered In the nega-
tive.
-1353-
’
Honorable Henry Wade, Page 4 (Opinion No. C- 283 )
SMALL CLAIMS COURT
The statute authorizingthe Small Claims Court 1s
found In Article 2460a, V.C.S. In answering your second
question, it Is necessary for us to determine the power and
jurisdictionof this court. As already noticed, Opinion No.
C-82 of this office held that a non-lawyer employee of a
corporationempowered to act for the corporationmay file a
claim in this court in behalf of the corporation. This opin-
ion did not consider any question other than the question as
to whether such person may file a claim in behalf of a corpora-
tion. Even though a non-lawyermay file the claim, this does
not mean that he can proceed with ancillary proceedings such
as seeking a writ of sequestration. While a non-lawyer should
be able to fill out the form hereinaftermentfoned to start
the suit, he is not supposed to .,equalified to handle ancil-
lary proceedingsin a lawsuit.
The statute, Article 2460a, creating this court In
Section 1 read3 as follows:
"There is hereby created and estab-
lished in each of the several counties
of this State a court of Inferior juris-
diction to be known as the 'Small Claims
Court(. The justices of the peace in
their several counties and precincts shall
sit as judges of said courts and exercise
the jurisdictionhereby conferred in all
cases arising under the provisions of this
Chapter." (Emphasisadded.)
Section 2 of said act, which limits the jurisdiction
to the amount in controversy,also provides, In part, as
follows:
"The Small Claims Court shall have
and exercise concurrent Jurisdiction
with the Justice of the Peace Court in
all actions for the recovery of money
by any person, associationof persons,
corporation or by any attorney for such
parties, or other legal entity . . .'
(Emphasisadded.)
In our opinion the jtirisdictionof the Smali Claims
Court is limited to suits for the "recovery of money" and
it was not intended to give said court jurisdictionof
-1354-
Honorable Henry Wade, Page 5 (Opinion No. C- 283 )
ancillary proceedings,such as writs of sequestrationwhich
may be sought In an action filed In a Justice of the Peace
Court. As already noticed, the statute gives this court
concurrent jurisdictionwith the Justice of the Peace Courts
“in actions for the recovery of money.” The statute does not
give such courts concurrentgeneral jurisdictionwith the
Justice of the Peace Courts In any action except “for the
recovery of money.”
Article 6840, already noticed, provides as follows:
“Judges and clerks of the district
and county courts, and justices of the
peace shall, at the commencementor
during the progress of any civil suit,
before final judgment, have power to
issue writs of sequestration,. . .I’
This statute, of course, was In existence before the
adoption of the Small Claims Court Act. It certainly meant
and means that Justices of the Peace, as used in said Article,
is Intended to mean Justices of the Peace acting as Justices
of the Justice of the Peace Courts, and, therefore,would not
apply to the Small Claims Court. Since the Legislature did
not amend this Article so as to authorize judges of the Small
Claims Court to Issue the writs, we believe that such Article
cannot apply to such courts, and that a Justice of the Peace
sitting In such court is not authorized to issue such writ.
If the Legislature Intended to give the Small Claims
Court power to issue writs of sequestration,it could have
given such court concurrent jurisdictionwith the Justice of
the Peace Court in all actions of which a Justice of the Peace
Court has jurisdiction,but It did not 8ee fit to do so, and
limited the jurisdictionto “actions for the recovery of
money” and did not confer jurisdictionupon said court to
issue writs of sequestrationas provided by Article 6840 (or,
Incidentally,other ancillary writs, such as attachment,
Article 275, or garnishment,Article 4o76),
It Is also to be noticed that Section 4 of Article,
2460a provides that the action shall be commenced under this
act whenever the claimant files a statement under oath stating
that ttfedefendant ‘is justly indebted to him In the sum of
$ and also stating the nature of the claim in concise
form an$ that there are no counterclaims. Section 14 of the
act requires the CommissionersI Court to furnish the Justices
of the Peace a SupPlY Of forms for use in filing suits. The
form provided by the statute is simple, and it is contemplated
that any layman should be able to fill out the form, especially
-1355-
Honorable Henry Wade, Page 6 (Opinion No. C- 283 )
with the assistance of the Justice of the Peace. It certainly
was not intended that a layman, unaccustomed to legal proceed-
lngs~,should be qualified to prepare any of the papers or
pleadings necessary for securing a writ of sequestrationor
other ancillarywrit. The fact that a simple form was provided
solely for "the recovery of money" shows, we believe, that
this is all that was Intended to be done in the way of filing
any pleadings. The fact that a non-lawyer Is permitted to file
the sult by fllllng out a slmple form furnlshed to him by the
Justice of the Peace,showsthat It was not Intended that any
other pleading should be filed.
It 1s also to be noticed that the procedure in commenc-
ing a claim in the Small Claims Court requires a written com-
plaint or statementunder oath, whereas in an ordinary case
in which a Justice of the Peace Court has jurisdiction,it is
not necessary to file written pleadings. Section 7 of the act
provides that no formal plead& other than the affidavit men-
tioned shall be required. All of this, we believe, goes to
show that it was clearly the Intention of the Legislature that
nothing else should be filed.
We also call attention to Sections 5 and 5a of Artl-
cle 2460a pertaining to the fees provided for In suits in the
Small Claims Court. These sections limit the fees "up to and
including entry of judgment." It la to be noticed that Section
5 provides for a ~flllngfee of $3.00. No other fee~ls provided
for, except Section ~11provides for an additional fee of $3.00
If a jury Is demanded, and Section 5a provides for a fee of
$2.00 for service of citation. There is nothlng in the act
providing that any officer shall perform any duty other than
for the Justice of the Peace to hear the case and receive a fee
of $3.00, and for the officer who serves citation shall receive
a fee limited to $2.00. There Is no fee provided for any offi-
cer for any other service that might be performed, and since he
1s not required to perform any other service, we believe that
it was not intended that any other action should be taken in
this court. Since no mention Is made of any service other than
serving the citation,we believe that It was not Intended that
any other service should be required of any officer.
As to.sequestratlon in addition to the regular fees
prescribedby law, Article 6846, V.C.S., provides as follows:
"The officer executing a writ of
sequestration,while he retains custody
of the property sequestered,shall take
care of and manage the same In a prudent
manner, and if he confides the same to
the custody of other persons he shall be
-1356-
.I .
I
Honorable Henry waae, Page 7 (OpinionNo. C- 283 )
responsible for their acts in regard
thereto, and shall be responsible to
the party injured for any neglect or
mismanagementby himself, or by those
to whom he has confided the custody
or management of the property."
Article 6847 provides as follows:
"The officer retaining custody of
property by virtue of a writ of seques-
tration shall be entitled to receive a
just compensationma all reasonable
charges therefor, to be determined by
the judge or justice from whose court
the writ Issued, to be taxed in the
bill of costs against the party cast
in the suit, and collected In the
same manner as the other costs In the
case."
Article 6848 provides as follows:
"If the officer be compelled to
expend any sum in the security,
management or care of the property,
he may retain possession of said
property until said money be refunded
by the party offering to replevy said
property, his agent or attorney."
Since Sections 5 and 5a of the act limit the fees of
. .Peace, to $2.00 for
an officer, other than the Justice of the
serving citation, and since there la nothlng ln me act pro-
viding that any officer shall perform any duty other than for
the Justice of the Peace to hear the complaint and an officer
to serve a citation, it certainly was not intended to place the
responsibilityupon a sheriff or constable to handle the prop-
erty as provided by the above quoted Articles pertalning to the
handling of property under a writ of sequestrationand pay the
expenses involved as above set out. The act limits the fee to
be collected to $2.00 for serving the citation. Under a writ
of sequestration,the officer serving it would be required to
pay the expense himself.
We again call attentlonetothe statute creating this
Court (Article 2460a) which states that It Is to be a court of
"inferior jurlsdictlon"and that the Justices of the Peace shall
sit as Judges and exercise the "jurisdictionhereby conferred."
-1357-
Honorable Henry Wade, Page 8 (Opinion No. C- 283)
This statute, we believe, supports our view taken herein that
it is Intended to limit the jurisdictionto the simple form
of complaint to be filed and a hearing thereon and entry of
final judgment by the Justice of the Peace.
In view of our holding that this Court 1s limited in
jurisdictionas hereinabovestated, It naturally follows that
neither a lawyer nor a non-lawyermay seek a writ of seques-
tration in this Court, and your second question, therefore
should also be answered in the negatl~ve.
SUMMARY
A corporationmay not seek a writ of
sequestrationIn the Justice of the Peace
Court through a non-lawytr employee.
A Small Claims Court does not have
jurisdictionto Issue writs of sequestration
and, therefore,neither a lawyer nor a non-
lawyer may seek such writ in such court.
Yours very truly,
WAGGONER CARR
Attorney General of Texas
HGC/jp
APPROVED:
OPINION COMMITTEE,
W. V. Geppert, Chalrman
Ben.Harrison
Wayne R. Rodgers
Cecil Rotsch
APFROVED FOR THE ATTORNEY G&R&
By: Stanton Stone
-1358-