Untitled Texas Attorney General Opinion ( 1975 )

February 4, 1975
The Honorable Thomas W. Brown Opinion No. H- 516
Director
Texas Board of Private Investigators Re: Construction of Article
and Private Security Agencies 4413(29bb) regarding licens-
959 Reinli Street, Suite 201 ing of private investigators
Austin, Texas 78751 and security agencies.
Dear Mr. Brown:
You have requested our opinion regarding the construction of
article 4413(29bb), V. T. C. S., which creates a Texas Board of Private
Investigators and Private Security Agencies, and empowers the Board
to license applicants under the Act. Specifically, you ask:
1. Whether the Board has the authority to adopt
a rule requiring the manager of a licensee des-
cribed in Section 19 of the Act to be a Texas
resident.
2. Whether the word “member” in Section 19(a)
ought to be read as “manager. ”
3. Whether the Board has the authority to re-
quire a licensee to maintain a place of business
in the State of Texas.
Section 3(a) of the Act requires that an applicant for any license
under the Act be a United States citizen, a person at least 21 years of
age, and a person of “good moral character and temperate habits, who
is not a convicted felon. ” The Act specifies further that the applicant
comply “with any other reasonable qualifications that the board may fix
by rule. ”
p. 2327
The Honorable Thomas W. Brown page 2 (H-516)
The case law provides little guidance regarding the question of
whether the Board may require a manager applicant to be a Texas resident.
The determining factor in , . . whether or not
a particular administrative agency has exceeded
its rule-making powers is that the rule’s provisions
must be in harmony with the general obiectives of
the Act involved. ‘I. Gerst v. Oak Cliff Savings & Loan
Ass’n
-* J 432 S. W. 2d 702, 706 (Tex. Sup. 1968).
The Act itself, however, may provide a clue. Section 50,which
describes the process of appeal from the Board’s decisions, states that:
[a]ny person aggrieved by any’action of the Board
in denying an application for a license, or in
revoking a license, or in suspending a license, or
in taking any disciplinary action with respect to a
licensd under this Act, shall have the right to appeal
such action or such decision to the District Court
of the county of his residence . . . .
The Act thus seems to contemplate that a licensee or a prospective
licensee should be a resident of a particular Texas county. Since we cannot
say that Texas residency is an unreasonable qualification in this instance,
since no provision of the Act implies that the Board may not require that
manager applicants be residents of Texas, and since a reasonable interpreta-
tion of section 50 supports the Board’s power to establish the requirement,
we think it within the Board’s authority to adopt a rule requiring the manager
of a license described in section 19 of the Act to be a Texas resident.
Your second question involves the use of the word “member” in
section 19(a). That section provides:
(a) The business of each licensee shall be operated
under the direction, control, charge, or management,
in the State, of either the licensee or a member, but
no licensee shall employ more than one manager.
(Emphasis added).
pe 2328
The Honorable Thomas W. Brown page 3 (H-516)
The word “member” is not present elsewhere in the Act and has
little meaning in relation to the licensing of private investigators and
security agencies. Section 19 deals with the qualifications for “managers, ”
and we believe that the Legislature clearly intended “the business of each
licensee” to be “operated under the direction, control, charge, or
management . . . of either the licensee or a manager. ” “Where possible
a legislative act should be construed to accomplish its evident and obvious
purpose. ” State v. Bathe, 231 S. W. 2d 453 (Tex. Civ. App., San Antonio
1950, no writ). We therefore construe the word “member” in section 19(a)
as the word “manager. ”
Your final question asks whether the Board has the authority to
require the licensee to maintain a place of business within the state.
We also believe that the Act has, by necessary implication,
empowered the Board to require a licensee to maintain a place of
business in the State of Texas. Under the terms of section llA, the
Board may “issue subpoenas to compel the attendance of witnesses
and the production of pertinent books, accounts, records, and documents. ”
Subsection c of section 1lA provides the Board with authority to enforce
this subpoena power. Unless the licensee is required to maintain a place
of business in the state, the Board is without effective means to imple-
ment its subpoena power. We hold therefore that the Board has the
authority to require a licensee to maintain a place of business in the
State of Texas.
SUMMARY
The Texas Board of Private Investigators and
Private Security Agencies has the authority to
adopt a rule requiring the manager of a licensee
described in section 19 of the Act to be a Texas
resident. The word “member” in section 19(a)
should be read as “manager. ” The Board also
has the authority to require a licensee to maintain
a place of business in the State of Texas.
ery truly yours,
u Attorney General of Texas
ps 2329
The Honorable Thomas W. Brown page 4 (H-516)
APPROVED:
. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2330