Untitled Texas Attorney General Opinion ( 1944 )

THE L%Tl?ORNEY GENERAL 0~ TEXAS GROVER SELLERS -lu Honorable John D. Reed, Commissioner Bureau of Labor Statiatlca Austin, Texas Dear Sir: Opinion No. 0-5960 Re: p;i;l,e 1302, Section83, ~,~ 0 . . .; extent of Labor Com- missioners's Investigation; reaponaibllitg of Labor Com- missioneras to inltfation of investigation. Your opinion request dated May 3;1944 ,and filed in lieu of your opinion request of April 12, 1944, has been re- ceived in this office and is hereby acknowledged. Your first question is: "1 * Under Article 1302, Section 83, does this office, in the absence of statutory quallfi- cations, have the authority to look beyond the ap- plication as submltted to determine whether or not any organlzatlon applying for a charter to repre- sent working people is a bona fide labor organization and actually representing wage earners before aub- mlttlng our recommendations to the Secretary of State?" It la our opinion that you have authority to look be- yond the application itself so long as your investlgatlon Is concerned with the "merits" of the application. House Bill 16, Acts 1941, 47th Legislature, page 350, chapter 190 reads: "Section 1. That subdivision 83 of Article 1302, Title 32, Chapter 1 of the Revised Civil Statutes of the State of Texas, 1925, be, and the same is hereby amended so as to read hereafter as follows: “‘83. To organize laborers, working men, wage earners, and farmers to protect themselves In their varloua pursuits; provided however, no charter shall be issued hereafter to laborers, Hon. John D. Reed, page 2 o -5960 working men, or wage earners, or amendment granted to a charter of a~corporation previously created to organize laborers, working men, or wage earners, or that mag.be hereafter created hereunder to organize laborers, working men, or wage earners, by the Secretary of State to any person, association or corporation, for such purposes without an lnvestl- gatlon first having been made by the Commissioner of Labor Statistics concerning such application, and a favorable recommendation made thereon by said Coimnisslonerto the Secretary of State. It la ex- pressly provided that no investigation or recom- mendation by the Commissioner of Labor Statistics shall be required or made of applications from farmers for a charter.' (emphasis added) "Sec. 2. The fact that there Is no adequate law In the State of Texas which authorizes an ln- vestlgation .on the merits of an application fora charter, or amendment to a charter, by laborers, working men, or wage earners, and the further fact that injustices are being perpetrated upon unsuspecting working men and wage earners in many instances where charters or amendments to charters~ are granted as herein enumerated, creates an emer- gency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several daya~be, and the same is hereby sua- pended, and~this Act shall take effect and be in force from and after its passage, and it IS 30 en- acted." (emphasis added) You will observe that Section 2 of this Act states: "The fact that there is no adequate law in the State of Texas which authorizes an invettigation on the merits of an applica- tion for a charter . . . , and declares an emergency in connec- tlon with the ends sought by this Act and, at the same time, states that the Legislature intended this investigation to go to the merits of the application itself. Section 1 of this Act provides that,,nosuch charter shall be issued by the Secretary of State O . . without an Investigation first having been made by the Commissioner of Labor Statistics concerning such application . . ." The ordln- ary Interpretation of the word "concerning" suggests that the Act shall.be more broad than a mere "inspection or "examina- tion" of the application. The word "inveatlgatlon" also su$- gests a broader meaning. Your second question is: - -- Ron, John D. Reed, page 3 o -5960 "2o Is It the duty of the office of the Secretary of State to refer applications for char- ters, under Section 83, to this office for approval, or is it the duty of this office to initiate such an investigation wlthout having same referred to us by the Secretary of State?" It is our opinion that, under Article 1302, Section 83, you are not to initiate such investigations until you are called upon to do 30 by the Secretary of State. To take the contrary view and say that you should lnitl- ate such investigations on your own motlon would produce a manifestly undesirable result that the Legislature would not likely have intended. It would necessitate your checking peach one of the ,thousandaof charter applications that are flled with the Secretary of State to determine whether you thought each of them required your investigation. It would conceivably result in cases where you would initiate lnveatlgationa, in- cur delay, trouble and expense in making them, and then find that your recommendation would be unnecessary because the Sec- retary of State would reject the application on other grounds, or would Issue the charter under provisions of another section of Article 1302, under which he considered the application to be filed and which required no investigation by your department. Article 1302, Section 83, which is quoted above, desig- nates a particular purpose for which a charter may be granted by the Secretary of State. It also sets up an essential pre- requisite which must be complied with before the Secretary of State has authority to Issue a charter under that subaectlon; that pre-requisite is that he, the Secretary of State, have- before him gcur favorable recommendation on the application, based upon the investigation which has been discussed above. Article 1302, Section 83 clearly authorizes you to make these investigations when proper cases arlse. However, we are unable to find any authority whatsoever which authorizes or makes it yourdutg to undertake to determine which pending ap- plications for charters require your investigation and to undertake investigations accordingly. Hon. John D. Reed, page 4 o-5960 Yours very truly ATTORNEY GEhQRAL OF TEXAS By s/W. T. Curry Ii. T. Curry Assistant WTC:FO:wc APPROVE0 MAY 8, 1944 s/Grover Sellers ATTORNEYGENERAL OF TEXAS Approved Opinion Committee By s/OS Chairman