Clements v. State , 141 Tex. Crim. 108 ( 1940 )

In his motion for rehearing appellant re-asserts that the complaint and information is fatally defective, and complains because this point was not disposed of in our original opinion.

Omitting formal parts, the State's pleadings charge that appellant did: —

"* * * unlawfully practice law in that he did then and there in a representative capacity perform an act in connection with proceedings pending and prospective before a court, to-wit: the 37th Judicial District Court of Bexar County, Texas, in that he did then and there write a letter in behalf of Mrs. Ethel Mahar concerning Theodore N. Mahar, submitting a proposition for temporary alimony in a divorce suit pending and prospective in said court, between Mrs. Ethel Mahar, as plaintiff and Theodore N. Mahar, as defendant, the said Albert Clements being a natural person who was not a member of the bar regularly admitted and licensed to practice law; * * *"

The prosecution was under the provisions of the Acts of the 43rd Legislature, p. 935, Ch. 238, and appears in Vol. 1, Vernon's Texas P. C. as Art. 430 a. Section 1 of the Act makes it unlawful for anyone to practice law except persons who are members of the bar regularly admitted and licensed to practice law. Section 2, in subdivisions a, b, c, d and e specifies certain acts which are declared to be practicing law. It is not necessary here to state what they are, suffice is to say the averments in the State's pleading bring appellant within the act of practicing law. Immediately following the declaration of the acts and things which constitute practicing law and as a part of the same section two it is said: "Nothing in this section shall be construed to prohibit" (1) any person from attending to his own business, (2) nor from preparing abstracts, certifying or insuring titles to property, (3) nor prohibiting banks or trust companies from representing their customers in adjusting items mentioned in subdivision (e) heretofore referred to, (4) nor as prohibiting one from pursuing the business of adjusting insurance or freight rate claims, (5) nor as prohibiting a collecting agency subject to an occupation tax from settling controverted claims growing out of contractual relations, (6) nor as prohibiting real estate agents from collecting rents for their employers (7) nor as prohibiting notary publics from drawing conveyances.

It is appellant's contention that the exemptions mentioned are exceptions to the law under which he is prosecuted, and are so written into the statute that it is necessary for the State in its pleading to negative said exceptions before one may be properly charged with illegally practicing law, and that the failure to so negative them renders the complaint and information against appellant fatally defective.

Probably no other subject has been productive of more writing and confusing expressions than the one dealing with the necessity or otherwise of negativing exceptions in indictments and informations. Notwithstanding this, our court has announced some very clear principles which have been epitomized by Mr. Branch in his valuable Ann. Texas P. C. in Sec. 510, page 263. The application of these principles will frequently solve the problem simply and understandingly. We quote from Branch Ann. Tex. P. C., Sec., 510.

"When that portion of the statute alleged is so inconsistent with the exception as to substantially negative it, it is not necessary to negative the exception in terms. State v. Clayton,43 Tex. 410; Summerlin v. State, 3 Texas Crim. App. 444; Hodges v. State, 44 Tex.Crim. Rep.; 72 S.W. 179; Wilkerson v. State, 44 Tex.Crim. Rep.; 72 S.W. 850."

The observations of Judge Davidson in the opinion in Wilkerson's case (supra) are quite pertinent to the present contention. We refrain from quoting, but emphasize the case mentioned.

Referring now to the charge against appellant, in order to make applicable the principle quoted, it is clear beyond controversy from the averments in the complaint and information that appellant was the representative of Mrs. Mahar, and acting for her and in her behalf in the matter of seeking temporary alimony in a divorce proceeding. It is equally clear from the averments that in doing what he did he was (1) not attending to his own business; (2) he was not preparing abstracts; (3) he was not a bank or trust company, (4) he was not adjusting insurance or freight rate claims, (5) he was not a collecting agency paying occupation tax as such, (6) he was not a real estate agent collecting rents for his employer, (7) he wasnot a notary public. If the things which appellant is alleged to have done in violation of the statute were so inconsistent with the exceptions mentioned as to substantially negative them it was not necessary to negative them in express terms.

Such we think to be the case in the present instance, and therefore appellant's contention must fail.

The motion for rehearing is overruled.