Untitled Texas Attorney General Opinion ( 1986 )


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  •                                  The Attorney          General of Texas
    JIM  MATTOX                                          March 13, 1986
    Attorney General
    Honorable Sam D. l!illsap,Jr.        opinion No. JM-451
    Supreme Court Building           Criminal District Attorney
    P. 0. Box 12546                  Bexar County Courthouse              Re: Representation of parties in
    Austin, TX. 76711. 2546          San Antonio, Texas   78205           forcible entry and detainer suits
    5121475-2501                                                          by "authorized agents" under section
    Telex 910/674-1367
    Telecopier   512/475-0266
    24.009 of the Texas Froperty Code
    Dear Mr. Millsap:
    714 Jackson, Suite 7fJtI
    Dallas, TX. 75202.4506
    You ask several questions about section 24.OG9 of the Texas
    2W742-9944
    Property Code, enacted by the Sixty-ninth session of the legislature:
    4624 Alberta   Ave., Suite 160               In forcible detainer suits in justice court for
    El Paso, TX. 799052793                    nonuaymeot of rent or holding over beyond a rental
    9151533-3464                              t&n,- t1.eparties may represent themselves or be
    represz&d     by their authorized agents, who need
    ,001 Texas, Suite 700                     not be-attorneys.     In any forcible detainer or
    Houston.   TX. 77W2-3111                  forcible ‘entry and detainer suit in justice court,
    713/223-5888                              an authtxrized agent requesting or obtaining a
    default judgment need not be an attorney.
    (Emphasis added).
    808 Broadway, Suite 312
    Lubbock. TX. 794W3479
    6W747.5236                       Acts 1985, 69th Leg., ch. 891, at 6479.l
    You submit rwveral questions about this provision, which we
    4309 N. Tenth, Suite 6
    summarize as follow:
    McAllen, TX. 76501-1665
    5121662-4547
    1. W1o is an 'authorized agent' under section
    24.009 of the Property Code?
    200 Main Plaza, Suite 400
    San Antonlo, TX. 76205-2797
    2 :~ Hly corporations, partnerships, real estate
    512/2254191
    brokers '>!tthe employees of such entities or indi-
    viduals .?racticelawsunder this statute?
    An Equal OPPOrtUnitYI
    Affirmative Action Employer                 3. Wxat proof of authority should be required
    of an ag'ant appearing in a forcible entry and
    detainer matter under section 24.009 of the
    Property Code?
    1.  The Sixty-ninth session of the legislature enacted twc
    provisions codified as section 24.009 of the Texas Property Code. See
    Acts 1985, 69th Leg., ch. 747, at 5376 (warehouseman's lien).     -
    p. 2044
    Honorable Sam D. Hillsap, Lr. - Page 2   (JM-451)
    Section 24.009 of the Property Code expressly permits persons who
    are not licensed as attorneys to represent parties in forcible
    detainer and forcible entq' and detainer suits in justice courts. Set
    Property Code 5524.001, 24.002 (defining forcible entry and detai=
    and forcible detainer). Aa:icle 320a-1, V.T.C.S., the State Bar Act,
    defines the practice of lwr as follows:
    For purposes o,E this Act, the practice of law
    embraces the pmparation of pleadings and other
    papers incident co actions of special proceedings
    and the manageme:ltof the actions and proceedings
    on behalf -----
    of cl:%nts before judges in courts as
    well as services .renderedout of court, including
    the giving of mivice or the rendering of any
    service requiring;the use of legal skill or know-
    ledge, such as {meparing a will, contract, or
    other instrument, the legal effect of which under
    the facts and ccnclusions involved must be care-
    fully determined. This definition is not exclu-
    sive and does net deprive the judicial branch of
    the power acd alz:horityboth under this Act and
    the adbdicated cases to determine whether other
    services and acts not enumerated in this Act may
    constitute the p&tice   of law. (Emphasis added).
    Sec. 19(s). Section 24.009 of the Property Code authorizes certain
    persons to engage in what ,gouldbe the practice of law in the absence
    of that provision.     See generally Attorney General Opinion -v-56
    (1983). It thus prov=r      a legislative exception to the earlier
    enacted section 10(a) of article 32Oa-1, V.T.C.S., which prohibits
    , "[a]11 persons not members of the State Bar . . . from practicing
    law. . .-.ll See Allied F:.nance Company of Bay City v. Falkner, 
    397 S.W.2d 846
    (z.      1965) Ta later expression of legislative will
    constitutes an implied repa!alof previo&s inconsistent iaw).
    The judiciary, however, has inherent power to determine what is
    the practice of law on a case by case basis, unconfined by statute.
    Unauthorized Practice Cou@.ttee, State Bar of Texas v. Cortez, 
    692 S.W.2d 47
    , 50 (Tex. 1985); Grievance Committee of State Bar of Texas,
    Twenty-First Congressional illstrictv. Dean, 
    190 S.W.2d 126
    , 128 (Tex.
    Cl". ADD. - Austin 1945.-no writ). The uractice of law is also
    subject to regulation by &: legislature as a*profession affected with
    the public interest, but the legislature acts in aid of the judiciary,
    not to the exclusion of the constitutional powers of the judiciary.
    Bryant v. State, 457 S.W.:!d72, 78 (Tex. Civ. App. - Eastland 1970,
    writ ref'd n.r.e.). See 'Tex. Const. art. II, 11; Supreme Court of
    Texas, Order adopting%te        Bar Act (1979) (codified following
    V.T.C.S. art. 320a-1).
    p. 2045
    Eonorable Sam D. Millsap, Jr. - Page 3   (JM-451)
    We believe the legic,lation codified as section 24.OCO of the
    Property Code is not inconsistent with the judicial treatment of this
    matter. The Texas Supreae Court has promulgated Rule 747a of the
    Texas Rules of Civil Procedure:
    In forcible entry and detainer cases for non-
    paynent of rent or holding over beyond the rental
    term, the parties may represent themselves or be
    represented by their authorized agents in justice
    court.
    Attorney General Opinion .I&56 (1983) construed this rule in light of
    the Supreme Court's constitutional authority to establish rules of
    procedure "not inconsistenr with the laws of the State for the govem-
    nerd of the courts. Tex. Const. art. V, 925. This constitutional
    provision expressly llmirs the inherent power the ccurts might
    otherwise have to establish their rules of procedure. To avoid
    finding Rule 747a inconsis:ent with article 32Ca-1, V.T.C.S., Attorney
    General Opinion JH-56 cons,:rued"agents" to mean "attorney agents":
    To the extent     that rule 747s purports to
    authorize the practice of law by unlicensed
    persons, we believe that it would be held unconsti-
    tutional. Where a mle of the Supreme Court con-
    flicts with a sxtute, the rule must yield. . . .
    Tn our opinion, therefore, 'authorized agents' as
    used in Rule 74'7a should be construed to nean
    'attorney agents.'
    Attorney General Opinion JM-56 (1983) (citation omitted). Pule 747a.
    on its face, attempts to authorize agents who are not attorneys to
    appear in forcible entry and detainer suits, as Attorney General
    Opinion JM-56 implicitly acknowledges. Section 24.009 of the Texas
    Property Code seeks to carry out the apparent intent of Rule 747a, and
    for that reason, we believe the legislature eracted that provision in
    aid of the judiciary, and not in contravention of its constitutional
    powers. Set Bryant V. 
    Stay, supra
    .
    Your questions are phrased in general terns, and must be given
    general answers. The appointment of particular nonlawyer agents ray
    raise additional legal questions which must be answered on a case-by-
    case basis.
    A corporation or a business entity which is a party to a forcible
    entry and detainer suit may be represented by an "authorized agent"
    under section 24.009.  We believe an "authorized agent" under section
    24.009 of the Property Cotle.may only be a natural person and may not
    be a corporation or other busicess entity. The “authorizec!  agent” is
    to act analogously to a licensed attorney, who is necessarily an
    p. 2046
    Honorable Sam D. Millsap, Jr,.- Page 4 (m-451)
    individual. See V.T.C.S. am. 32Oa-1, 510. See also Ackley v. State,
    592 S.W.2d 606(Tex. Grim App. 1980); Tar&urine v. Center Savings
    Association, 583 S.W.Zd 942 (Tex. Civ. App. - Tyler 1979, writ ref'd
    n.r.e.) (defining "agent"). Moreover, section 24.009 of the Property
    Code uses the personal pronoun "who" to refer to "authorized agents,
    who need not be attorneys."
    The judicial decision la Holloway v. Paul 0. Sixms Co., 
    32 S.W.2d 672
    , 673-74 (Tex. Civ. App. .-Austin 1930, no writ) is helpful on your
    question about the proof o.E authority required of an agent appearing
    in justice court under sec,cion 24.009 of the Property Code. ThiS
    decision considered former article 3977, V.T.C.S., now codified as
    Rule 739 of the Texas Rules (ofCivil Procedure, which governs issuance
    of citation in a forcible entry and detainer proceeding. Rule 739,
    which is idantical to former article 3977, V.T.C.S., as to the
    language relevant to our inquiry, provides in part:
    When the par:y aggrieved or his authorized
    e     shall file b.iswrittan sworn complaint with
    such lustice, the iustice shall ixmediatelv issue
    citation. . . . (:&phasis added).         .
    Tex. R. Civ. Proc. 739. Thlc defendant-appellant in Holloway v. Paul
    0. Sinma, *,     argued thee the affidavit upon which citation issued
    was void and would not susl:ainthe suit, contending that, in addition
    to other defects, the affidavit was made by an agent who did not
    reveal his agency. The ccurt stated that these matters were raised
    for the first tine after t1.ecase reached the county court on appeal,
    that appellant had already (contestedthe suit on the merits, "and no
    special plea attacking the lack of authority of the agent was ever
    filad." -Holloway v. Paul 0. Siam8 Co., 32 SiW.2d 672, 673 (Tex. Civ.
    APP. - Austin 1930, no writy. The affidavit was held to be sufficient
    for the following reasons:
    Numerous authorities hold that where an agent
    wakes an aff1davi.tunder procedural statutes like
    the forcible dctainer statutes, which do not
    require the agent to swear to his agency, the
    affidavit is suf:l:icientif it reasonably appears
    therefrom that affiant is agent, and especially is
    this the rule where no attack is made upon .the
    authority of the 
    agent. 32 S.W.2d at 673-74
    .
    Texas law presumes that:an attorney is authorized to act for any
    person whom he professes or appears to represent. Powler v. Morrell;
    
    8 Tex. 153
    (1852); National Bond 6 Investment Co. v. McCoy, 
    263 S.W. 1089
    , 1090 (Tex. Civ. App. -'Amclrillo1924, no writ). Rule 12 of the
    p. 2047
    Honorable Sam D. Millsap. Jr. - Page 5       (~~-451)
    Texas Rules of Civil Procsidureprovides that a pazty to a suit may
    challenge the authorit? of another party's attornev to act in the
    suit.  see Victory v. State, 158 S.W,2d 760, 766 (Tex. 1942); Valley
    Interna~al    Properties 1~;;.v. Brownsville Savings and Loan Associa-
    -.
    tion, 581T.W.2d 222, 226-(Tex. Civ. App. - Corpus Christi 1979, no
    writ). See also Tax. R. C::v.Proc. 8 (lead attorney defined).
    No statute or rule comparable to Rule 12 applies to "authorized
    agent6" under section 24.CO9 of the Property Code. Nonetheless, the
    method of challeneine the authoritv of "authorized aaents" stated in
    Holloway v. Paul- 0‘: Sims    Co.,*supra, resembles-the wethod of
    challenging an attorney's-authority established by Rule 12 and by
    judicial decisions. In 01.x opinion, the authority of aa "authorized
    agent" to represent a party to a forcible entry and detainer suit
    under sectior 24.009 of the Property Code is to be presmed,. If
    another party questions the agent’s     authority for the purported
    representation, he must ra:isethe matter in the justice court, and not
    for the first time on appeal. See Tex. R. Civ. Proc. 85 (pleas
    contained in answer to complaint).-
    SUMMARY
    Section 24.009 of the Texas Property Code
    authorizes the parties in certain forcible
    detainer and forc:lbleentry and detainer suits in
    justice court to be represented by "authorized
    agents" who arc not attorneys. This statute
    creates an excepl:l:on
    to the prohibition in article
    320a-1, V.T.C.S., against the practice of law by
    persons not licensed as attorneys. Authorized
    agents under section 24.009 must be individuals
    and not business entities. An agent's authority
    under section 24.009 of the Property Code is to be
    presumed. Any challenge to the agent's authority
    by another party must be raised in justice court
    and not for the :iJ:rst
    time on appeal.
    Attorney General of Texas
    JACK BIGHTOWER
    First Assistant Attorney General
    MARY KELLER
    Executive Assistant Attorney General
    p. 2048
    Eonorable Sam D. Millsap, :'I.- Page 6   (~~-451)
    ROBERT GUY
    Special Assistant Attorney G,eneral
    RICK GILPIN
    Chairman, Opinion Comoittef!
    Prepared by Susan L. Garrimn
    Assistant Attorney General
    p. 2049