stating that “every word in a statute is presumed to have been used for a purpose . . . and that the Legislature did not intend to do a useless thing by” adopting a “meaningless provision”
How later courts described this case
- stating that “every word in a statute is presumed to have been used for a purpose . . . and that the Legislature did not intend to do a useless thing by” adopting a “meaningless provision”
Written by the judges who cited it.
The opinion
ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
March 3,2004
Mr. William Treaty Opinion No. GA-01 59
Executive Director
Texas State Board of Public Accountancy Re: Whether section 901.405(e) of the Occupations
333 Guadalupe, Tower III, Suite 900 Code requires a person whose license to practice
Austin, Texas 78701-3900 public accountancy has been expired for two years
or more to obtain a new certificate, for which an
examination is required (RQ-0 102-GA)
Dear Mr. Treaty:
On behalf of the Texas State Board of Public Accountancy (the “Board”), you ask whether
section 901.405(e) of the Occupations Code requires a person whose license to practice public
accountancy has been expired for two years or more to obtain a new certificate, for which an
examination is required. ’ See TEX. Oct. CODE ANN. 5 901.405(e) (Vernon 2004).
Under chapter 901 of the Occupations Code, which regulates accountants, a person who
wishes to practice as a certified public accountant must have two documents: a certificate and a
license. See id. $0 901.251(a), .401(a). Only a person with both documents may use the title
“certified public accountant,” “CPA,” or “public accountant,” or may hold him- or herself out as an
“accountant.” Id. $5 901.45 1-.453(b). An individual who holds him- or herself out as an accountant,
a certified public accountant, or a public accountant without both a certificate and a license con-units
a criminal offense and may be subject to a disciplinary action, administrative penalties, and an order
to pay restitution. See id. $0 901.502, .551, .601, .6015, .602.
Section 901.252 sets out five statutory eligibility requirements for receiving a certificate:
To be eligible to receive a certificate, a person must:
(1) be of good moral character as determined under Section
901.253;
‘See Letter from Mr. William Treaty, Executive Director, Texas State Board of Public Accountancy, to
Honorable Greg Abbott, Texas Attorney General, at 2 (Sept. 2, 2003) (on file with Opinion Committee) [hereinafter
Request Letter].
Mr. William Treaty - Page 2 (GA-0159)
(2) meet the education requirements established under Section
901.254 or 901.255;
(3) pass the uniform CPA examination;
(4) meet the work experience requirements established under
Section 901.256; and
(5) pass an examination on the rules of professional conduct
as determined by board rule.
Id. 9 901.252; see also 22 TEX. ADMIN. CODE 5 5 11.161 (2003). In addition to the five statutory
requirements, an applicant for certification must submit requisite examination and certification fees,*
as well as execute an oath of office. See TEX.OCC. CODEANN. $5 901.303-.304(a); 22 TEX.ADMIN.
CODE 8 5 11.161(4), (7) (2003).
“An individual who holds a certificate. . . must also hold a license,” which must be renewed
every twelve months. See TEX. OCC. CODE ANN. 8 901.401(a) (Vernon 2004); 22 TEX. ADMIN.
CODE 5 5 15.1 (a) (2003). To qualify for license renewal, a licensee annually must complete at least
twenty hours of accredited continuing professional education. See 22 TEX. ADMIN. CODE tj 523.63
(2003); see also TEX. OCC. CODE ANN. 5 901.411 (a) (Vernon 2004). Section 901.405 sets out the
renewal procedure:
(a) A person who is otherwise eligible to renew a license may
renew an unexpired license by paying the required renewal fee to the
board before the expiration date of the license. . . .
(b) A person whose license has been expired for 90 days or
less may renew the license by paying to the board a renewal fee that
is equal to 1-s times the normally required renewal fee.
(c) A person whose license has been expired for more than 90
days but less than one year may renew the license by paying to the
board a renewal fee that is equal to two times the normally required
renew al fee.
(d) A person whose license has been expired for at least one
year but less than two years may renew the license by paying to the
board a renewal fee that is equal to three times the norrnally required
renewal fee.
*The fee for the initial filing of the examination application is $50, which is nonrefkndable. See 22 TEX. ADMIN.
CODE $ 52 1.12 (2003). The fee for the entire examination is $234. See id. 0 521.2(b). The fee for the initial issuance
of a CPA certificate is $50. See id. fj 52 1.9.
Mr. William Treaty - Page 3 (GA-0159)
(e) A person whose license has been expired for two years or
more may not renew the license. The person may obtain a new
license by complying with the requirements and procedures,
including the examination requirements, for obtaining an original
license.
(f) A person who was licensed in this state, moved to another
state, and is currently licensed and has been in practice in the other
state for the two years preceding the date of application may obtain
a new license without reexamination. The person must pay to the
board a fee that is equal to two times the normally required renewal
fee for the license.
TEX. OCC. CODE ANN. 5 901.405 (Vernon 2004) (emphasis added). The annual fee for a person’s
license is $40 ($10 of which is directed toward a scholarship fund) unless the individual is “in retired
or disabled status.” 22 TEX. ADMIN. CODE ?J521.1(a) (2003); see also id. 8 521.8.
Chapter 901 describes certain circumstances in which a person may lose his or her certificate.
For example, the Board may revoke a certificate for illegal use of the designations “certified public
accountant” and “CPA” or for failing to obtain a license within three years of certification. See TEX.
Oct. CODEANN. 8 901.502(3), (5) (V emon 2004); see also id. 9 901.501(a) (setting out the Board’s
disciplinary powers). But except for the situation described in section 901.502(4), where a licensee
has failed to renew his or her license “not later than the third anniversary of the date on which the
person most recently obtained or renewed the license,” the failure to renew a license is not tied to
the loss of a certificate. See id. 8 901.502(4); see also id. § 901.501(a) (setting out the Board’s
disciplinary powers).
A person whose certificate has been revoked may apply in writing for a reinstated certificate.
Id. 8 901.507( 1); see 22 TEX. ADMIN. CODE $5 5 11.168, .171 (2003). According to Board rule, the
individual must establish that he or she has completed the requisite number of hours of continuing
professional education and must pay all fees and penalties that are due. See 22 TEX. ADMIN. CODE
45 5 11.168(a)-(b), .171 (2003). The Board may recertify a person who has complied with the
statutory and regulatory requirements. See TEX. OCC. CODE ANN. 8 901.507(l) (Vernon 2004).
You ask first whether “the words ‘original license’ [in the second sentence of section
90 1.405(e)] mean . . . that . . . a certificate holder who has allowed his license to lapse for more than
two years need only pay the required fees and report the required [continuing professional education]
because those are the only requirements to obtain a license for a CPA who holds a valid certificate.”
Request Letter, supra note 1, at 2. You point out that section 901.405(e), under which a person
whose license expired two years ago or more must comply “with the requirements and procedures,
including the examination requirements, for obtaining an original license,” is ambiguous when
considered in the context of the two documents required to practice public accounting. TEX. OCC.
CODE ANN. 5 901.405(e) (Vernon 2004); see Request Letter, supra note 1, at 2. As you state,
Mr. William Treaty - Page 4 (GA-0159)
[t]he requirements for obtaining an “original license” are that the
applicant complete the required application, be a certificate holder,
obtain the required number of hours of [continuing professional
education,] and pay the required fees. . . . There is no examination
requirement to obtain a license. A certificate holder retains his
certificate until it is revoked by the Board. The only examination
requirement pertains to the obtaining of a certificate.
Request Letter, supra note 1, at 2.
The legislature adopted subsection (e) in 2003 following review of the Board by the Sunset
Advisory Commission. See Act of May 29,2003,78th Leg., R.S., ch. 525, 4 19,2003 Tex. Gen.
Laws 1795,1801; SUNSET ADVISORY COMM'N, STAFFREPORT: TEXAS STATEBOARD OF PUBLIC
ACCOIJNTANCYET AL. 38 (Oct. 2002). The Sunset Advisory Commission inserts into licensing
statutes an “[alcross-the-[bloard” requirement that a licensee who has failed to renew the license
within a certain time period must obtain a new license. SUNSETADVISORYCOMM’N, STAFF-PORT:
TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY ET AL. 38 (Oct. 2002); see SUNSET ADVISORY
COMM'N, SUNSET OCCUPATIONALLICENSINGMODEL 13 (Oct. 2003) (“[Plenalties for delinquent
renewal . . . vary among state licensing agencies. This provision is aimed at ensuring comparable
treatment for all licensees.“).3 While the standard Sunset language may work well in other contexts,
its application to the Board is, as you suggest, confusing.
In construing the second sentence of section 901.405(e), we face a difficult choice. If we
construe the phrases “new license” and “original license” in the second sentence of section
901.405(e) to mean a license obtained under chapter 901, the phrase “including the examination
requirements” would have no meaning under the current licensing system. We must presume that
the legislature did not intend to adopt a meaningless provision. See TEX. GOV'T CODE ANN.
§311.021(2)(V emon 1998); Barr v. Bernhard, 562 S.W.2d 844,849 (Tex. 1978) (stating that “every
word in a statute is presumed to have been used for a purpose . . . and that the Legislature did not
intend to do a useless thing by” adopting a “meaningless provision”). On the other hand, if we
ascribe meaning to the phrase “including the examination requirements” by reading the phrases “new
license” and “original license” to mean a certificate obtained under section 901.252, we would read
into the statute the automatic revocation of a certificate when the certificate-holder’s license has been
3The provision has been inserted into several other licensing statutes. For example, section 113.093 of the
Natural Resources Code, which pertains to the renewal of the Texas Railroad Commission-issued licenses authorizing
a licensee to engage in the liquefied petroleum gas industry, prohibits a person whose license has been expired for one
year from renewing the license. See TEX. NAT. RES. CODE ANN. 0 113.093(d) (Vernon Supp. 2004). The person may
“obtain a new license by complying with the requirements and procedures, including the examination requirements, for
obtaining an original license.” Id. The phrase “including the examination requirement” was added in 2001 following
Sunset Commission review. See Act of May 27,2001,77th Leg., R.S., ch. 1233, $4 1,200 1 Tex. Gen. Laws 2843,2866;
HOUSERESEARCHORG.,HOUSECOMM.ON ENERGY F&SOIJRCES,
BILLANALYSIS,T~~.S.B.~~O,~~~~L~~.,R.S.(~OO~)
(stating, with respect to the bill that added the language “including the examination requirement” to section 113.093(d),
that the Railroad Commission will expire if not continued by the bill’s passage). For similar examples, see TEX. OCC.
CODE ANN. 0 257.002(d) (Vernon 2004) (pertaining to licenses granted by Board of Dental Examiners); id. $
1001.353(d) (pertaining to licenses granted by the Board of Professional Engineers).
Mr. William Treaty - Page 5 (GA-0159)
expired for two years. Enacting legislation by inserting such a revocation into the statute is typically
the province of the legislature, not this office. See Tex. Att’y Gen. Op. No. JC-0360 (2001) at 2-3
(declining to infer statutory authority for a taxing unit to voluntarily reduce its tax rate). Further,
construing the statute to require automatic revocation of the certification effectively renders
meaningless section 901.502(4), which authorizes (but does not require) the Board to revoke the
certificate of a person whose license has not been renewed for three years. See TEX. OCC. CODE
ANN. 8 901.502(4) (Vernon 2004).
We conclude that the term “new license” in section 901.405(e) refers to a license, not a
certificate. Because an accounting license does not require an examination, the phrase “including
the examination requirements” has no meaning. Nevertheless, chapter 901 defines the terms
“certificate” and “license” to mean separate documents, see id. 9 901.002(3), (10); see also TEX.
GOV’T CODE ANN. $0 3 11.005, .Ol 1 (Vernon 1998) (suggesting that a term’s statutory definition
controls over general definitions and the word’s common meaning), and the legislature otherwise
has used the terms throughout chapter 901 consistently to reflect this distinction. See, e.g., TEX.
OCC. CODE ANN. 88 901.401(a), .402(a), .501(a)(l), .502(l) (Vernon 2004). In addition, we have
no persuasive evidence that the legislature intended to refer to an accounting certificate. To the
contrary, the language of section 901.405(e) reflects an across-the-board recommendation of the
Sunset Commission that is not tailored specifically to the practice of accounting, which requires
both a certificate and a license. See also Hearings on Tex. H.B. I21 8 Before the House
Comm. on Licensing & Administrative Procedures, 78th Leg., R.S. (Apr. 3, 2003) (statement of
Representative Chisum, available at http:ff~.house.state.tx.us/committees/broadcasts.php?
session=78&cmte=350 (stating that, after two years, a licensee would “have to requalify”);
Tex. Sunset Advisory Comm’n Meeting (Nov. 12, 2002), available at http:llwww.sunset.state.
tx.us/audioarchives.htm (noting across-the-board recommendations); HOUSE RESEARCHORG.,
HOUSE COMM. ON LICENSING& ADMINISTRATIVEPROCEDURES, BILL ANALYSIS, Tex. H.B. 1218,
78th Leg., R.S. (2003) (same) (making no mention of the new re-examination requirement). In our
opinion, if the legislature wished to automatically revoke an accountant’s certificate for nonrenewal
of the license after two years and to require a reexamination, the statutory language would more
clearly reflect that intent. Accordingly, to obtain a new license under section 90 1.405(e), a certificate
holder must follow only the normal “requirements and procedures” for obtaining a new license,
which do not include an examination requirement. TEX. OCC. CODE ANN. fj 901.405(e) (Vernon
2004).
You have two remaining questions. You ask whether “the words ‘including the examination
requirements’ mean that a certificate holder who has allowed his license to lapse for more than two
years must re-take the [Uniform Certified Public Accountant Examination (the Uniform CPA
Examination)] or the examination on the rules of professional conduct or both.” Request Letter,
supra note 1, at 2. You ask finally whether section 901.405(e) requires “a certificate holder who has
allowed his license to lapse for more than two years must meet the current educational requirements
of section 901.252(2), the current work requirements of section 901.252(4)[,] and undergo an
evaluation . . . for good moral character as required by section 901.252( 1)” Id.
Given our conclusion that a certificate holder whose license has lapsed under section
901.405(e) need not undergo another certification examination, these questions are moot.
Mr. William Treaty - Page 6 (GA-0159)
SUMMARY
Section 901.405(e) of the Occupations Code, under which a
person whose accounting license has been expired for two years or
more may not renew the license but may obtain a “new license by
complying with the requirements and procedures, including the
examination requirements, for obtaining an original license,” requires
the person to obtain a new license, but not a new certificate. The
statutory phrase “including the examination requirements” does not
require the person to undergo a certification examination.
Very trujy yours,
Attor&&eneral of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee