Untitled Texas Attorney General Opinion ( 1944 )

Grbver Sellers AXJSTIN11. TEXAS
Hon. Horace B. Sessions Opinion No. O-6252
Securities Commissioner R0: Whether the Administrator of the
Secretary of State Securities Division of the Office of
Austin, Texas the Secretary of State is authorized
or permitted under the Real Estate
Dealers License Act to require each
and every applicant for a license as a
real estate dealer or salesman to take
an examination in order to determine
Dear sir: the competency of such applicant.
Your letter of September 29, 1944, requesting the
opinion of this department on the questions stated therein is
in part as follows:
"This Division has been presented with the ques-
tion of whether or not the Administrator of the Se-
curities Division is authorized or permitted under
the Real Estate Dealers License Act - Title 113-A,
Article 6573a of the Revised Civil Statutes - to re-
quire that each and every applicant for a license as
a real estate dealer or salesman take an examination
in order to determine the competency of such applicant.
"This question arises under Sections 8 and9 of
the Act.
"Section 8 requires that
"'Application for a real estate dealer's or real
estate salesman's license shall contain such other in-
formatiog as to the applicant in addition to the
above described, as the Admini strator of the Securities
Division of the office of the Secretary of State shall
require. The Administrator of the Securities Division
of the office of the Secretary of State may require
such other proof through the application or otherwise
as its officers shall deem desirable with due regard to
the paramount interest of the public as to the honesty,
trtr;$ulness, integrity, and competency of the appli-
"Section 9 provides that
- .
Hon. Horace B. Sessions, page 2
‘*‘If the Administrator of the Securities Divi-
sion of the office of the Secretary of State
is satisfied that the applicant for real estate
dealer’s or real estate salesman’s license is
of good business repute and that the business
will be conducted in an honest, fair, just, and
equitable manner, and uuon comolrins with all,
pther D ovisions of the la and cQ&j,&ions o f
this AC: a license shall Thereupon be granted
by the A&ministrator . . . t
“The underlined wording above is the basis
of the proposition presented to this office that
the Administrator is authorized under the statute
as it is now written to require an examination of
all applicants.
“We shall appreciate an opinion from your of-
fice on the following questions:
“1. Is the Administrator of the Securities Divi-
sion authorized under Sections 8 and 9 or any
other provisions of the Real Estate Dealers Li-
cense Act to require that each and every appli-
cant for a dealer’s or salesman’s license take
either an oral or a written examination before
receiving a license?
“2. If such Administrator is authorizpd to re-
quire either an oral examination or a written
examination, what procedure or administrative
setup is permitted to be utilized by the Admin-
istrator under the present Real Estate Dealers
License Act in instituting such requirement as
a prerequisite to obtain a license?M
Article 6573a, Vernon’s Annotated Civil Statutes is
a general statute commonly known and cited as “The Real Esi ate
Dealers License Act”. For the purposes of this opinion we do
not deem it necessary to quote said statute. We have carefully
considered the statute, ,and it is our opinion that the Adminis-
trator of the Securities Division is not authorized under Sec-
tions 8 and 9 or any other provision of said Act to require any
applicant for a dealer’s or salesman’s license to teke either
an oral or written examination before receiving a license. In
view of our answer to your first question, your second question
becomes moot.
Generally speaking, “under the power of the state to
determine the competency or capacity of persons engaging in
.’ .
Hon. Horace B. Sessions, page 3
professions or callings, the state may require examinations to
determine the fitness of licensees who seek to engage in profes-
sions or callings~affecting the public health, safety or welfare.
Under this rule, examinations may be made of persons seeking to
practice, work, or engage in business as architects; attorneys
at law; barbers; certified public accountants; locomotive en-
gineers or other employees of railroads in the actual service of
operating trains; pharmacists; physicians and surgeons pilots;
plumbers; school teachers stationary engineers; and o t hers
whose vocations are vitally related to conservi g of the public
welfare and the public safety. . .‘I (American !:urisprudence,
Vol. 33, p. 373).
It is stated in Corpus Juris, Vol. 37, P. 238:
“In order that a person may be entitled to a
license to engage in a particular business or exer-
cise a particular privilege it is usually required
by the statute or ordinance that he shall comply
with certain prescribed conditions or qualifications,
provided, of course, such conditions are reasonable
and authorized. Such conditions may consist merely
of making a proper application and paying, or tender-
ing the prescribed fee. But in addition to this an
applicant may be required inter alia, to disclose
the extent and value of his business, and pay, or
show that he has paid, all his taxes. Except where
the licensing board or officer is vested with dis-
cretionary power in granting or refusing licenses,
an applicant, upon complying with the conditions
imposed, is entitled to a license as a matter of
right, and, in some cases may enforce his right
by mandamus* But where o c her conditions are im-
posed, he is not entitled to a license as a matter
of course by merely paying or tendering the fee or
tax required. In the absence of special authority
therefor, the licensing board or officials, in
passing on applications for licenses, cannot pre-
scribe conditions or requirements in the case of a
particular application, in addition to those pre-
scribed by statute or ordinance, with which appli-
cant has already complied.
“An applicant may also be required to comply
with reasonable qualifications as to his suitability,
experience, skill, and ability to engage in the par-
ticular occupation, or business, or exercise the par-
ticular privilege, for which he desires a license, and
Hon. Horace B. Sessions, page 4
undergo an examination for this purpose a He may be
required to show that he is a person of good moral
character, and furnish written recommendations to
that effect. In the absence of such a requirement,
however, if the applicant has complied with other
conditions, he cannot be refused a license because
of his character or reputation or previous misconduct.
*‘An applicant for a license may be required to
submit to an examination as to his personal qualifi-
cations or fitness to conduct the business or occupa-
tion for which the license is desired. Such examina-
tion must be conducted in accordance with the rules
and regulations prescribed therefor; but such rules
end regulations must be reasonable, and not be unrea-
sonable and arbitrary.”
If the Legislature had intended that applicants for
a dealer’s or salesman’s license under “The Real Estate Ileal-
ers License Act” were required to take an oral or written ex-
amination before receiving a license, the Legislature could
have said so in plain language; this it has not done{ with
reference to applicants for a dealer’s or a salesman s license
under said Act.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By’/s/ Ardell Williams
Ardell Williams, Assistant
APPROVED OCT 10, 1944
/s/ Grover Sellers
ATTORNEY GENERAL OF TEXAS
APPROVED:OP∋fI~CZJC~TTEE
BY: ,
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