Untitled Texas Attorney General Opinion ( 1939 )

OFFICE ‘OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
SllALD c. MANN ;j:,
.non*n e**caAL Kay 5, 1939
Zr Morris G. Rosenthal .i
As;rIstantDlstrlot ~ttornf
Houston, Texas
Dear Sir:
OpInIon No. &a47
Re: ConstruotIon
_ - _ of ArtiO+ 430a,
letter or April 15,
for fordlble detalnar or tor aolleotlon
“,,,
0r open aooouots or notes?*
%ur &si'qusstion may naturally be sub-divided
Into two"$art?i:(1) my an unlIoansed Individualappear
In the Ju::CioeCourts as the agent or attorney In faot for
another natural person, and (2) iaayan unlioensed Individual
appear In the Justloe Courts as the agent or attorney in
raot ror a oorporatlon?
The statute plainly provides that an unlloensed
Mr. Morris 0. Rosenthal,l&l 5, 1459, Page 2
,
individualmap not appear as the agent or attorney In faot
for another natural person. With referenaa to this quas-
tion, Art1010 430a provides as follows:
%aatIon 1. It shall bs unlawful for any
aorporatlcnor any parson, rirm or assooia-
tion 0r params, sxoept natural persons
who are mm&err of the bar regularly aa-
dttea and llaonsed, to praotlaa law.
T3eatIon 2. .......Whoever (a) In a repre-
sentative aapaolty appears as an advoaato
. . . . . ..or perronu any aot In oonneatlon
with proatodingr pol;296 N.Y. 5. 952, 163 k%SO. 437; 'allent-iieuent
Mr. Morris G. Rosenthal,May 5, 1939, Page 4
Corporationv. *ueena Borough Gas and Electria Company 290
N. y. S. @87, 160 MISC. 920, while other deoislons holi that
suoh appearanoe Is void. Mortgaxe Commissionv. Great Neal
ImprovementCompany 295 c. Y. s. 0 7 162 ;clsa.416; Flnox
Realty Cornoration:. LI~rmen 296 N:Y. S. 945, 163 klic
070; Aberdeen Bindery v. Easiern .,tates
c Printing and Pub-
lishing Company, 3 N. Y. S. (2) 419, 1% Misc. 904; A.J
Whalen. Ino. v. Pritzert, 3 6. Y. S. (2) 418, 167 Mleo. 471.
In other Jurisdlotlons,it appears to be the uni-
form rule that a corporationosnnot appear In Rroprla persona
by an unlicensedoffloer or agent. but that the cornoration
must appear by a regularly lioensed attorney at law, Brandstein
v. White Lamps. Ino., 20 F. Supp. 369; kullin-JohnsonCompaq
V. Penn b¶utualLife Insuranoo CornDaly, 9 P. Supp. 175: NIlIW
2ersey Photo Bngravlnu ComDapI v. Carl Sav
95 N. J. %a. 12. 122 ntl. 3-- ~-
107; Blaok and Mite
- Operating
Company. Ino.. V. Grosbart, 107 'N J L 63, 151 A. 6300;
Ben&e v. Triangle Ranoh Cc '73'c0i0. 586. 216 Paa. 718;
Clark v. Aust' S. '5;.(2) 977; Cglpeqer
Rational Bank vi Tidewater ImurovementCompany.-119Vu. 73.
89 S.E. 118; Rob18 B. Fowler v. Bank of Kentu:ikv.l? KY. 262:
NIeoel v. Zestern Union 311; 'DetroitBar-
Asaooiation v. Union Guardian Trust Comoany, 282 &oh. 707,
IN In re Opinion of the Ju~tIoes,,289Mass. 607,
1":4N: ;: ;:;i
As steitedabove, we do not find any Texas dealsions
oonatrulng Section 3 of Artlale 43Oa, quoted above. Under
Section 2 it has beon held that an offioer of e aorporation
oan represent the corporation In attempting to oolleot a debt
belonging to the oorporatlonout of court, even though suoh
offloer Is not licensed to praotioe law. Dletzel v. State,
131 Ter. Cr. 279, 98 S. M. (2) 103. We do not believe, how-
ever, that the courts of this state would permit a oorporatlon
to appear in court except by an lndlvldualwho is duly llaensed
to practice law. At common law, a oorporetiondid not have
the right to appear except by attorney. See Osborn v. Bank of
the United States 9 *heaton, 738, 830; 6 L. Ed. 204. We do
not believe that $eotion 3 of Artiole 430a should be construed
to per&t a cor?or?tlonto appear In court by an unlicensed
agent or representctlve. A oorporatlon is essentlellydifferent
from a natural person, in that a natural person onn aot and
htr. b’orrlsG. Rosenthal,May 5, 1939, Pago 5
appear for his&elf, but a corporationmust always 8ot through
its agent or representative. The ofiiaer or agent oi the corpo-
retlon who undertakes to mpresent it in court Is necessarily
acting In a representativecapacity for a separate and dlstlnct
entity, to wit, the corporation. He may or nay not have the
authority to bind the oorporatlonby ?is acts, but In any oase
It 1s the individualwho appears before tho court, and not the
corporation. The courts have the Inherent power to presorlbe
the quallficatlonsof lndlvldualsappeari% before them in a
representative,capacItyand, for that purpose, to require that
such IndlvIEualsshall be duly llconsed to praotlce law. Thls
power In ofSect would be destroyed if aorporatlonsoould be
representedby ;!ersohsaot licensed to practlao law. m tb
simple expedient ot obtalnlng his election or laploymenta8
an ofrioer or agent of a oorporatlon,a parson othenvlse ln-
eligible to appear in court in a representativeoapaoity oould
win the right to represent the corporationand, in effect, to
represent all of the lndlvldualswho sight have invested in the
corporation,to the extent of their investcant theraln. We do
not belleve that as a xatter of polloy the statute should be
construed 80 as to persit this to be done. Furthsmore, w do
not believe that the statute should be donetrued ao as to par-
Lit unlicensedindividualsto represent oorporatlonala oourt
in view oi the doubt that might be raised as to the oonatitu-
tlonallty of the statute under such construotlon. Such doubt
would ha based on the grounde that under such oonstruotlonthe
statute might constitutean invasion by the legislatureof the
powers oonrerred by the aonstltutlonon the judlaial branoh of
the govermient. C&pare In re Opinion of the Justlooa, SE49l&ass.
607, 194 N. E. 313.
The question remains as to what was the intention of
the Le&ileture In providing In Section 3 that “It shall be un-
lawful for any corporationto praotlce law as defined by this
Aot or to ap-$ar ai au attorney for any person other than lt-
self....” It IS our 0pin10r!that the Word8 *O%f~erthan lt-
%?$?' were used 80 as to %ake It plain that a COspOsatiOn is
not prevented frorti
hiring a regular staff of lawyers to appear
and represent it In court. In a sense, Such action by the
cozporatlonLight be oonstrued to constitute the Indirect prac-
tice of the law by the corporntioni’oritself, but such action
IS not 1l:egel beceuse the COspOsationb:-so dOinc IS SOCUring
legal representationfor Itself and not for other persons. ?je
believe that the iegieleture had in v.Indcertain ca6es wherein
It has been held that a corporstlon is IndirectlypraOtIoIug
ltiww.mre it, in elfect, hire8 a stafP ,-flawyers and furnishes
1:r . Korris G. hosenthal,Kay 5, 1939, Page 6
legal representationto other persons. See In re ?:aclubor
America, (Xass.) 3 X. E. (2) 272, 105 A. L. R. 1300;
v. B.otorIstsAssociationor Illinois, 354 Ill. 595, 122-i%.
e27 United Statss Title Gunrantv Co&i:anvv. Brown, 217 N.Y.
628; 111 s. ??.8.20. !?ethink that the LegislatureIntended,
by [sing the words "other than itself," to nake It plain that
a oorporationcan hire a regular legal staff to represent it,
but that the Legislaturedid not Intend to oonfer on corpora-
tlon8 the right to be representederoept by agent8 or attorneys
who have been duly lloensed to practice law.
v
You are accordinglyadvised that a person, not lloeneed
to practice law In this state, may not appear In the justloe
courts as agent or aa attorney In fact ror another person or a
corporationand rile for such pereon or oorporationeuritsfor
forcible detalner or for colleotlonof open aocounts or not88.
Your seoond question 1s aa follows:
"Is the praotioe of law in municipal oourts
forbidrlenby Artlole 430a of the Penal Code?*
or corporationcourts have been oreated by
!.:unIoipal
the under the authority of Article
legislature 5, Seotion 1, of
the Constitutionof Texas, which reads in part as followe:
"Seotlon 1. The judloial power of this State
shall be vested in one %oreme Court; in
Courts of Civil Appeals, In a Court of CrIml-
nal Appeals, In District Courts, in County
Courts, In Conuk3sIonersCoGt.8, In Courts
of Justices of the Peaoe, and in such other
courts as may be provided by law.
n........
"The Legislaturemy establlsh such other
courts as It my deem necessary end prescribe
the jurisdictionand organizationthereof,
and &ay conforffi the jurisdlctlocof the Dis-
trict and other Inferior courts thereto."
my Article 1194 of the FievisedCivil CtatUtes, s
corporationcourt is created and establishedfor each in-
corporatedcity, town, and village in the State, and by article
hire Morris 0. Rosenthal,li;ay
5, 1939, Page 7
1195, Revised Civil Statutes, jurisdiction1s
. COnierr8d. on the
corporationcourts over criminal cases arising unaer city
ordlnanoes and, concurrentlywith the justloes of the peaoe,
over criminal cases arising under "the criminal laws of this
State." These statutes have been held to be constitutional.
Ex parte Wilbarger, 41 Tex. Cr. 514, 55 S.W. 960; K10kman
V. State, 79 Tex. Cr. 125, lS3 S. Vi. 1180. The cormn
court clearly appears to be "8 court" upon which *judioial
power" has been conlerred by the statutes, and you are there-
fore advised thnt practice of the law in municipal or oorpo-
ration courts by persons not licensed to practice law 1s ror-
bidden by Article 43Ga of the Fenal Code. Compare Gregory v.
City ot Memphle, 157 Tenn. 68, 6 S. W. (2) 332.
Your third question 1s as follows:
"Is the request for or an agreement to a
postponement,oontlnuanoe,resettlnc or
dismissal of a case the praotloe of law
within the meaning or Artlole 43Oa of the
Penal Code?"
It seems to be clear that Seotlon 2 oi Artlole 430a
was intended to apply to all of the aots named in your question,
inasmuch as this seotlon covers "any aot in oonneotlonwith
prooee4Ings pending or prospectivebefore a court...." Compare
Harklns v. Murphy and Bolanz, 112 S.W. 136, cited above. You
are thereiore advised that a request for or an agreement to a
postponement,continuance,resetting or dismissal of a oase
oonstitutespractice oi the law within the meaning of Artlole
430a of t-hePenal Code.
Your fourth question Is as follows:
"Is the appearance'foran entering a plea of
guilty for another the practice of law within
the meaning of Article 430a of the Penal Code?*
l::e
assue that your question Is limited to misdemeanor
oases. In connectionwith t'-Isquestion,Article 518 of the
Code of Criminal Procedure provides In part as follows:
"A plea of'guilty In a misdemeanor oase may
be made either by the defendant or his counsel
in open Court...."
Er. Morris G. Rosenthal,Ray 5, 1939, Page 8
Under this article It has been held that only the
defendant or his lawyer may appear, and that persons not
lloensed to practice law oannot appear ror the defendant and
enter a plea of guilty. Ex part.8Jones, 46 Tex. Cr. 433,
80 s. i2‘.
995; , 76 Tex. Cr. 415, 175 S.W.
697; Ex part0 Tex. Cr. 639, 177 S.W. 89.
You are, therefore,advised that the appeartmoe for
and entering a plea of guilty ror another oonsbl$ubQrthe
praotioe of the law within the meaning of Artlolr 430a of the
Penal Code.
Yours very truly
ATTORNEY GFhZpAL OF TEXAS
James P. Hart
Assistant
JFR:FL
APPROVED:
Ati ;.A%