Untitled Texas Attorney General Opinion

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;<iy GE proetyeatlve b&ore a aourt or a jostlae of the peaoe, or a body, board, aotmIttoo, aommlsalon or orrioer aonstltutod by law and having authority to take evldanaa In or settla or determine oontrorersiasin the axeraise or the judlalal power of the State or sub- aitiaion thereof;.......~. (0 ) For a aon- sideration,raward, or pe$ounIarybanarlt, present or antioipataa,dlraat or inairoot, doas any aot In a reprssentstivaaapaalty in behalf of another tending to obtain or scours for such other tha prevention or ths redress of a wrong or the enforaament or establlshmsntof a right; . . . . . . . ..I8 praatlolng law." Independentlyof thla statutoryprovision, It has been held that a natural parson who Is not lloansed to prao- tlas law oannot appear In oourt as the agent or attorney In fact for another natural person. i#rkIns v. bEUrDhY and &lam, 112 S. 6. 136 (writ of~error dismIssea1. The atat- ute speoIrIoallyapplies to prooeedlngs before a justloa 0r the peaae, and embraoes "any act In oonneotloowith pro- oeeaings pending cr prospectIve,Wand therefore applies to suits for forolble detalner or for oollaotlon of open ao- counts or notes. Ke rind no alreot authority In this at-to upon the que&ion of the right of an Individualwho is not lioensed

Mr. Morris C. Rosenthal,May 5, 1939, Paqe ,3

to praatloe law to appear as the agent or Ettornay in faot ror a oorporatlon. It would s*am to bc alear that an In- dlvldunl who Is not regulc\rlyemployed by the oorporotion, but who is hired merely to represent the corporationIn court, would hove to be licensed to prnottoo l&r before he could appeilrfor the aorporation. However, there Is a oonfllat of authority in othar jurisdictionson the right of the aorporatlonto be representedIn court by one of Its regular orrioers or employees,who Is not lloensed to praotloe law. The oonrliot arises out or the question or the proper Interpretationto be given to statutes sImIlar to Seotlon 3 of Artlole 4308, whloh reads In part a8 fol- lows: **Section3. It shall be unlawrul for any aorporatlonto praotlae law as d4riE4d by this Aat or to appear aa an attorney lor any parson other than itself In any oourt In this State. or berore any ludialal body or any board or aomalsslonof-the State - 0r Texas; .............* With reference to the right of a party to appear In proprla persona, Artiole 1993 ol the Revised Civil Stat- utea provides as follows: "Any party to a suit may appear and proae- oute or defend his rights therein, either In perpon or by an attorney of the court." In soma oases It has been held that a corporation can appear In proprla persona In aases In whloh It I8 a party, and that In Suoh oaseo It may be representedby any or Its regular oifloers or einployees, even though such of- flaer or eaployea 1s not llaensad to preotloe law. This view was reaently adopted by the supreme Court of Tennaasee In the oase of I&vert$ furniture Co&mW V. Foust, 125 S. #. fZ) .~-. 694. ---. deolded February 18. 1938. In Rew York where there IS a st:ttute-sI.xllnrto A~tIcie~43oe,ROEB 0r the a8oIsIons hold that a corpomtlon can eppesr by an unlloensad ofiioer or agent A. VI&or and Coxi~anyv. Slelnln~er,9 3. Y. S. (2) 323 I-p?. Div., 1030); 10th St. and 5th. Ino. v. Hauehton, 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 Atl. 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%